On 1 April, the Food Standards Agency (FSA)
launched a consultation on its approach to regulatory decision
making. Click here for more information.
To view the FSA draft Policy Statement please click
This will open a PDF in a new window.
The Policy Statement considers stakeholder
engagement in consultations generally, and sets out the objectives
and principles of regulatory decision making, the evidence base
underpinning any decision as well as its approach to deciding the
most appropriate action in each case and the factors that are taken
Key consultation questions
The FSA focuses on whether or not they are
accessing "hard to hear" consumer groups as well as small and
medium sized food enterprises.
One aspect which is not covered however is any
aspect of 'weighting' given to responses to consultations. For
instance the response from a fringe consumer group should not be
commensurate with the response from a global company that has
consulted with employees and suppliers before providing their
Protecting consumer' "other interests"
Aspects to take into account are stated to include
consumer choice and cost repercussions of any action, the
heterogeneity or otherwise of consumer perceptions and protection
of the most vulnerable consumers. The question is asked if these
aspects should be taken into account and what additional issues
should be considered.
Whether or not any action will have a significant
impact on achieving the aimed protection and the provision of a
'level playing field' for industry and freedom of commercial
expression are not considered as options under this
Costs and benefits
There is some reference to assessing the costs and
benefits of any decision, which includes administrative costs for
industry. However, the wider implications of the costs of any
restrictions on the market against any limited perceived social
good is not considered.
Regulation and alternatives to
The various options for intervention are listed
ranging from doing nothing to direct regulation and encouraging
enforcement action. The question raised if there are any other
possible steps not listed.
The intervention of publishing survey result
showing the extent to which individual companies follow best
practice guidance is stated in the consultation summary to be
reasonable as it allows consumers to be informed about the extent
to which best practice is being followed. The argument against
this position is that this publication amounts to "regulatory
creep". The FSA raises questions as to whether stakeholders agree
with these publications and if it is felt that this information is
useful to consumers.
One response may be that it will depend upon
whether or not any of the best practice issues coincide with those
issues that consumers feel strongly about as to whether or not this
practice may be deemed at all useful to them.
When to take action
Different factors influence the approach in each
case, this includes; different types of risk (eg if there is an
immediate and acute threat,) speed of implementation, and in the
event where there are possible rather than actual risks it may be
the FSA will inform consumers, provide advice and still allow the
consumers to make their own choices. The aim is stated not to
reduce all risks, but to take action to reduce risks to the level
that would be acceptable to the 'reasonable consumer'.
Lord Phillips in his 16-volume, £30m inquiry into
BSE drew the conclusion that 'The Government does not set out to
achieve zero risk, but to reduce risk to a level, which should be
acceptable to the reasonable consumer.' This of course begs the
question of what is acceptable and what is reasonable.
It has been presented by the FSA (Sir John Krebs,
Chair of the Food Standards Agency at Queen's University, Belfast,
on 5 November 2003) that the notion of assessing risks on the basis
of scientific facts, coming to a conclusion about risk management,
and then telling the public, should be blended with public
attitudes towards the acceptability of risks and the costs and
feasibility of actions to manage risks.
However, the legislative requirements under
Regulation 178/2002 (Article 19) state that where a product not in
compliance with the food safety requirements may have reached the
consumer, consumers must be effectively and accurately informed of
the reason for the withdrawal. If necessary products must be
recalled when other measures are not sufficient to achieve a high
level of health protection. i.e. recall is only required where
other measures are insufficient to achieve a high level of health
protection. It is therefore clear that the FSA by referring to the
'reasonable consumer' in its consultation is going much further
than European legislation in factors governing a potential recall
It is likely that the FSA's position on the Sudan 1
recall followed their own factors in making the decision for recall
with an emphasis on public opinion as opposed to any consideration
of if other measures would be sufficient to achieve a high level of
health protection as part of a risk assessment. The FSA alert
itself considered the level of risk to be "very small". (The FSA
alert that was circulated on 18 February 2005 stated "Sudan I
could contribute to an increased risk of cancer and it is not
possible to identify a safe level or to quantify the risk. However,
at the levels present in these food products the risk is likely to
be very small.")
The FSA has invited comments to this consultation
by 30 June 2005.