Essay: Critically review enforcement options available in cases where unacceptable food is found

Question 2 Critically review enforcement options available in cases where unacceptable food is found. , Detail and justify what you consider to be the most appropriate course of action to be followed in this case. In this case study not enough has been done immediately or stated how they’ve dealt with the incidence of food poisoning. This is a major issue and more outbreaks of food poising and Haemolytic Uremic Syndrome (HUS) could occur. Hospitals and GP surgeries etc should be notified of the outbreak and alert the local media. The symptoms for Escherichia coli needs to be disseminated to the public, so they can notify their doctors and have their stool tested by the hospital microbiologist. Interview the households where the 3 cases of HUS have emerged to see if the source is also the Briddlesford Lodge Farm. Carry out an inspection of the farm, check the entire operation from cows to bottling, check the Hazard analysis and critical control points (HACCP) plan and check whether the staff are following the procedures. Has anything changed recently in their procedures? I.e. have they had new stock of cows? E.coli can take up to 14 days before symptoms show themselves (NHS Inform, 2018) so there may be further outbreak of E.coli until 9th October. Everything the officer does must be recorded in the officer’s pocket notebook at all times, including when and at what time evidence is gathered. Verbal advice should be given at all stages in the enforcement process to help the food business operator achieve compliance, and understand why enforcement action is being taken. The officer should ensure advice is disseminated to the public advising them to practice meticulous personal hygiene to avoid E.coli i.e. not to return to work and not to cook or prepare food, until they are free of symptoms for 48 hours, washed soiled items at highest temperature possible, clean all surfaces with hot water a detergent etc. (NHS Inform, 2018). If unacceptable food is found there are several options open to the officer: As the food business operator is cooperating the Officer could consider the Voluntary Procedures, the business can close if requested by the food business operator (FBO) and must be agreed in writing by themselves and the officer whilst agreeing to not re-open without the officer’s prior approval. As there has been an outbreak of food poisoning this action is too lenient. Any voluntary closure agreement must be confirmed in writing by the FBO and the authorised officer, with the FBO agreeing not to re-open without prior approval. Frequent checks should be carried out to ensure it has not re-opened. If the office suspects the business may re-open and trade without authorisation then he shouldn’t permit the voluntary procedure because there is no statutory legal sanction against a food business operator who re-opens for business after offering to close, although enforcement action for the actual breaches is still open. I wouldn’t recommend this option because the case study doesn’t state the history between the farm and the officer, whether the farm usually complies with advice or notices from the officer. If the farm did re-open without permission the officer would not be able to then force a closure. As there has been an outbreak you cannot rely on the good faith of the farm to do the right thing. If more cases of food poisoning emerged the officer would have to justify why he went down this route. The officer can give advice – All food businesses that handle raw foods and ready to eat foods should be aware and have access to Guidance for food business operators and local authorities, Escherichia coli O157 Control of cross-contamination (Food Standards Agency, 2018). As it is a dairy farm they should already be well aware of the potential for infections with raw milk and follow hygiene standards properly. Advice is not suitable here, as they have proved they have not followed hygiene protocols already by the outbreak occurring. The next available option available is a verbal warning with requests for action or letters with the actions required. The Officer will allow the farm sufficient time to seek advice and carry out the actions. This option is not suitable in this case because the food poisoning outbreak it is too serious. Generally informal action would only be used if the officer feels the offence is not serious enough for formal action and already has an established history with the farm. If the farm has ignored the verbal warning, become uncooperative, and the Officer believes they have been “selling food which is not of the nature or substance or quality demanded“ under Regulation 14 of the Food Safety Act 1990, by failing to maintain the process and treatment to secure the observance of hygienic condition and practices in connection with the carrying out of commercial operations with respect to food or food sources under Regulation 6 of the Food Safety and Hygiene (England) Regulations 2013 and believes this to be the cause of the E.coli outbreak a Hygiene Improvement Notice (HIN) can be served stating: 1. State the officer’s grounds for believing that the proprietor is failing to comply with the regulations. 2. Specify the matters which constitute the proprietor’s failure so to comply. 3. Specify the measures which, in the officer’s opinion, the proprietor must take in order to secure compliance. 4. Require the proprietor to take those measures, or measures which are at least equivalent, within such period (not being less than 14 days) as may be specified in the notice. (legislation.gov.uk, 2019). Failure to comply is a criminal offence and can result in prosecution, although the Officer can seek a prosecution action at the same time. The HIN could be served if formal action is proportionate to the risk to public health or there is a history of non-compliance from the farm. It would not be used if the contravention was a continuing occurrence, or swift enforcement action is required. This route isn’t appropriate in this case study because immediate response is required by the officer to close the farm, a HIN allows food business operators a set period of time to act on it. Hygiene Prohibition Order can be issued under Regulation 7 of the Food Safety and Hygiene (England) Regulations 2013 if the food business operator has failed to comply with the Hygiene Improvement Notice and prosecuted, or prosecuted without serving of the HIN. The court will restrict the use of particular processes, equipment or premises where they give rise to a risk of injury to health (Local Government Lawyer, 2012). This also not appropriate as the officer does not have the luxury of waiting to attend court. If the Hygiene improvement notice is not relevant or the offence is more serious and the Officer believes an imminent risk of injury to health can be demonstrated, in this circumstance the indication that there have been a further outbreak of three cases of Haemolytic Uremic Syndrome then issue a Hygiene Emergency Prohibition Notice, closing down the premises, served under Regulation 8 of the Food Safety and Hygiene (England) Regulations 2013 (legislation.gov.uk, 2019) against the premises due to the food poisoning outbreak, against the process possibly due to the milking machine being defective or inadequately cleaned, if this is the cause of the E.coli outbreak, or if the cause is due to not cleaning the udders properly causing a high risk to the public. It may also be issued for failing to implement a control at a critical control point if the machinery, milking teats have been inadequately cleaned. The officer should question whether they have seriously contravened the regulations and caused the E.coli outbreak. It will ensure immediate prohibition of the equipment being used or the process being stopped. The Officer must then apply to the Magistrates court within 3 days for the Hygiene Emergency Prohibition Order to justify why you feel this is necessary and produce sufficient evidence. The FBO must be given at least one day’s notice. This is the Best Option available to the officer, ensuring
the farm is closed immediately to prevent any further sale of the milk and to prevent any more milk being made until the source of the infection is established. A Remedial Action Notice (RAN) can be served if the farm is in Wales, Scotland or Northern Ireland or is an approved premises in the UK under Regulation 9 of The Food Hygiene (England) Regulations 2006 as soon as practicable stating why it is being served. It can be served along other enforcement notices/orders. This would be used instead of a HIN if a speedier response is needed but the action is not serious to require a warrant. In this case it could be served if the equipment or machinery is at fault and/or to recall the milk that has already been sold or transported to other businesses. It could be served to order the It will only be withdrawn in writing when the actions have been remedied. Failure to comply with a remedial action notice is an offence. In this case the authorised officer should serve RAN’s for each different issue (Food Standards Agency, 2015) i.e. the hygiene improved and swabs and sampling are clear of traces of E.coli. the recall of all the batches of milk alongside the HEPN/HEPO, the recall of raw butter and other products if they are produced at the farm, the closure of the farm, the ceasing of use of the process and equipment and request swabs and sampling of the foods and hygiene areas at risk until the required actions have been carried out, If serving a RAN then the Officer must also consider serving A Detention of Food Notice under Regulation 10 of the Food Safety and Hygiene (England) Regulations 2013 and decide whether food can be detained where it is or moved to a place elsewhere if the Officer has doubts about its security (Food Law 2017). This could be served if the farm is not cooperating and the Officer wishes to take samples for analysis and examination. The seized milk must be dealt by a Justice of the Peace as soon as is reasonably practicable and normally within two days. If the Officer is satisfied that the food has been examined and no longer needs to be detained whether it is fit or unfit for consumption then they must serve a Notice of Withdrawal of the Detention Notice within 21 days. In this case even though the farm has been cooperating the officers should serve the Detention Notice for the raw milk and other related products because of the food poisoning outbreak. All of the products need to be tested to trace the source before the farm can re-open and continue trading. Once the office has evidence the milk does not satisfy food safety requirement under regulation 29 of the Food Safety and Hygiene (England) Regulations 2013, then consideration will be given whether the food in question can be treated or processed before consumption and therefore satisfy food safety requirements. This must be agreed by the officer and the farm owner or operator with a signed, written agreement (Food Law 2017). This option should be chosen to save the food business operator the loss of finances he will incur during the closure. If the Officer wishes to use a simple caution, they must consider whether there is sufficient evidence, a reliable admission of guilt and is it in the public interest. Factors to take in to account are the nature and seriousness and previous history. It will be issued by Cautioning Officer, who is the Council Solicitor and the FBO notified beforehand in writing. If they refuse to accept the caution consider taking legal proceedings. This isn’t appropriate as there has been a serious breach of food safety, E.coli and HUS can both be fatal therefore the Local Authority must be seen to be taking the matter seriously and to ensure it doesn’t re-occur by ensuring the farm understands the seriousness and potential outcomes of what they may have caused by not following procedures. Prosecution under Section 78 Police and Criminal Evidence Act1984 and Criminal Proceedings and Investigation Act 1996 should be used in cases where the food business has seriously breached food safety law and there is imminent risk to health and is it in the public interest. The decision to prosecute depends on The seriousness of the offence and whether it was intended i.e. the offender knew they were disregarding the rules, putting the public at risk and whether the Officer can prove it. The offender failed to correct an identified failure The offender fails t comply with the requirements of a statutory notice Where there is a history of similar offences to public health. (Trafford Council Food, 2014) In this case the officer should recommend prosecution due to the seriousness of the E.coli out break and the cases of HUS that have emerged. Due to a person’s lack of personal hygiene or lack following the HACCP plan properly E.coli has been being allowed to enter the food chain so the farm must be held accountable. Inspection Visit Following any of the above advice, notice or orders, full Food Hygiene and Food Standards inspections will be carried out in accordance with Food Safety and Hygiene (England) Regulations 2013: Regulation (EC) 852/2004. Attention should be paid to relevant key control points, mixing stages when ingredients are added, monitoring and verification procedures, corrective actions and documentation until the infection has been eliminated and the farm can re-open. Question 3 Unacceptable foods are often found following sampling. With reference to relevant Code of Practice, Guidance and Legislation discuss and evaluate the purpose of food sampling. The laws and regulations that allow food sampling to be carried out are: The Food Safety Act 1990, the Food Safety (Sampling and Qualifications) (England) Regulations 2013 The Food Safety and Hygiene (England) Regulations 2013 Regulation 6(1) of the Official Feed and Food Controls (England) Regulations 2009 (Food Law Code of Practice, 2017) It gives consistency and a framework for a Competent Authority to carry out effective sampling for suspected offences, surveillance, monitoring and providing advice to food businesses. It is written in the Local Authorities Sampling Policy and Programme and is available to business and consumers. It explains why and how the food sampling is carried out. It explains what the public can do if they wish to complain. The policy covers every aspect of food law and is competent and proficient. The main objective of food sampling is to ascertain the microbiological quality and potential presence of harmful micro-organisms in foods that are used locally. Officers give advice to improve hygiene standards by checking the safety, quality or integrity of food including the food standards, authenticity and composition to ensure the food is safe for human consumption (Food Law Code of Practice, 2017). There isn’t any room for error, other than human error. The guidelines are only as good as the Officer carrying out the Sampling; they must be competent and qualified to the standard required by Code of Practice section 4.3. They must follow strict hygiene controls themselves by wearing gloves, apron and a hat and anything else necessary and take the correct equipment with them i.e. sterile containers, sample bags, camera etc Their record keeping and note taking must be accurate and up to date. They should write notes in their pocket notebooks at the time. If you are seeking a prosecution you must satisfy the courts under Sec 78 Police and Criminal Evidence Act1984 and Criminal Proceedings and Investigation Act 1996 that the results relate to the food taken by proving continuity of evidence therefore the Officer must ensure they keep accurate records and when they pass the sample to a colleague or to the courier then it is signed for and dated. If there is any doubt as to where the sample has been for a period of time this may lose a prosecution against a business. Continuity of evidence must continue until the final stage of the process at the laboratory as well, if they lose or misplace the sample it becomes null and cannot be used as evidence (Class notes, 2019) I feel the guidelines for sampling for analysis and examination is of the highest standard. It prot
ects the public and the procedures are strict. Sampling is an important process; it is required to ensure the safety to the public. The guidelines have to be strict to ensure if an owner or manufacturer is taken to court they will be prosecuted and not be released on a technicality due to an error by the Officer not following procedure. The guidelines also protect the food business operator from dishonest Officers by allowing an appeal process for them against an Officers decision. It is good for the public in regards that they have somewhere to go to complain if they have a grievance with the food they have eaten, with regards to composition, foreign bodies or whether they have had food poisoning. My concern is that if you are only sampling the end product, whether it is 3 representative parts for analysis or one part for examination are you actually seeing a representation of the whole item. Should there be checks along the process, so faults can be found earlier and stop the product reaching the shops etc.
I think sampling is beneficial to public health but it also gives us a false sense of security believing that all foods sold are safe. Reasons an Officer will sample:
• that food is safe
• does not contain harmful contaminants , or
• has correct level of ingredients
• Sampling Programme/Inspection
• Complaints and investigations
• Surveys – Local, Regional and National
• Routine checks – to assess local food handling practices
• Hygiene inspection
• Food sampling defined by statute – dairy products and shellfish
Therefore has covered every aspect related to food safety and hygiene. Informal and Formal Samples can be taken for either for analysis or examination. Samples taken to be sent to a Public Analyst, under section 29 of the Food Safety Act 1990 in accordance with the Food Safety (Sampling and Qualifications) Regulations 2013 and with the requirements of the Code of Practice Sampling and Analysis and should be submitted to the Public Analyst at an accredited laboratory. Samples for analysis can be due to complaints, routine sampling, a high risk premises, suspected aflatoxins; foreign bodies; items that should not be there and anything that’s not microbiological. If the sample is carried out for microbiological purposes these samples will be sent to the Food Examiner, for examination for Public Health England, taken in accordance with regulation 14 of the Food Safety and Hygiene (England) Regulations 2013 and the requirements of the Code of Practice and should be submitted to the Food Examiner at an accredited laboratory. Samples for examination can be due to complaints, surveys, routine samples, in response to suspicious swabs. Formal samples could be the result of an outbreak of food poisoning or business closure due to imminent risk. Officer should notify the laboratory beforehand if they are sending a formal sample, (whether for analysis or examination), by courier and whether special precautions are required, so the laboratory can be prepared and ready to receive the sample as soon as it arrives and take temperatures if necessary. This is important for cases that will be prosecuted so evidence can be gathered accurately and dependent on the efficiency of the Officer. If a cool box is not packed correctly and kept below 8°C this may affect the sample and therefore the integrity, thereby invalidating it. It addresses problems the Officer may encounter i.e. If an officer is unsure about the quantity of the sample required they may contact the Public Analyst for advice. It will only have an impact on businesses if they are doing something wrong or illegal. Manufacturers and some businesses carry out their own sampling and send these to accredited laboratories. They are required to inform the local authority if a problem is found in their sampling, but it is their responsibility. Do they actually inform the local authority? I think private laboratories should also be required to notify the local authorities as well. Food sampling is relevant and important; it is done for public safety and doesn’t leave room for mistakes. Where public safety is concerned the law must be as stringent and rigorous as possible but this is all dependent on the attributes and integrity of the Officer carrying out the sampling.