Food hygiene and safety - the risky business of enforcement

United Kingdom

As news breaks of two businessmen pleading guilty for their role in the 2013 horsemeat scandal, focus again turns to legal enforcement in the health and safety and food hygiene sectors, in particular the Sentencing Council’s 2016 sentencing publication, the ‘Health and Safety Offences, Corporate Manslaughter and Food Safety Hygiene Offences Definitive Guideline’. A great deal has been written from a health and safety viewpoint following publication of the guidelines. However, it is the significant provisions relating to food – the first example of sentencing guidelines for food safety and food hygiene offences – which we will be looking at closely in this paper. All companies should be even more diligent to ensure compliance with the law to avoid the risk of increased fines which are, significantly, now linked to the turnover of the business. In addition, both financial and custodial sentences are intended to reflect consumer demand for corporate accountability, secure compliance and directly impact shareholders. 

February 2016 saw the implementation of the Sentencing Council’s sentencing guidelines, described by some as the most significant change to the law governing food safety and hygiene since the introduction of the Health and Safety at Work etc Act in 1974. Many view the guidelines as a response to criticism that the penalties previously imposed on organisations or individuals arising from “Regulatory” offences were not severe or effective enough to send “the right message” to industry. Take for example, the 2013 horsemeat scandal. Despite being variously described as “the biggest food fraud of the 21st century”, there were relatively few prosecutions and such convictions attracted very modest financial penalties. Now, there are a number of significant implications flowing from these latest guidelines, not only for businesses but also individuals, all of which reward careful attention by those working in or with the Food Sector.

The first point of note from the guidelines is that there has been a broadening of the types of food safety and hygiene offences which may be caught, coupled with a dramatic increase in the level of potential penalties. For offences committed after 1 February 2016, the most serious level of harm now includes offences not only where there has actually been a serious adverse effect on consumers, but also where there is a high risk of an adverse effect occurring. In turn, ‘harm’ as a concept has now also been widened to include circumstances where a consumer has been misled about food and compliance with religious or personal beliefs. The horsemeat scandal, for example, led to traces of horse and pig DNA being found in burgers marketed as 100% beef. Historically, prosecutors had a tendency not to bring organisations or individuals to court for simply creating a risk. However, with the revised analysis of risk, and the perception of risk and the various low-risk activities which can now constitute an offence, it is more likely that we will see an increase in the number of prosecutions for matters that in lay terms would often be considered merely theoretical or technical.

This raises the question of how exactly the guidelines require courts to approach sentencing for food safety and hygiene offences? For businesses this is a nine step process, beginning with a determination of the offence category and the level of harm involved. This ranges from very high (for a deliberate breach or flagrant disregard for the law), to low (where failings were minor and isolated). The offending company is then assessed on the basis of its turnover, ranging from large (turnover more than £50million) all the way down to micro (turnover less than £2million). This gives the court a starting point and range of financial penalty. The figure can then be adjusted at later stages depending on principles of proportionality, other material factors, whether assistance was provided to the prosecution, if a guilty plea was entered, and the existence of any compensation order. So, for example, the starting point for a large company with very high culpability could be £1.2million, with a range of £500,000 to £3million. These are commercially significant numbers but even so the guidelines also give courts the power to exceed these thresholds where the company’s turnover exceeds £50million. This reflects one of several references in the Guidelines to the court’s discretion and the principle of proportionality.

Since the publication of the guidelines, there have already been several penalties imposed on large companies in the health and safety arena which indicates that the courts intend to adopt the powers (which as a matter of law they are bound to use in England & Wales) to impose high penalties not only to increase public and corporate awareness of the dangers of non-compliance, but also in an effort to reduce offending. For example, a £100,000 fine was imposed on Kentucky Fried Chicken in May 2016 after the company pleaded guilty to three food hygiene offences. This type of fine is now a very real threat that all food companies should be aware of, from directors through to shareholders. The bar was raised again in September 2016 with the ground breaking £5million fine imposed on the owner of Alton Towers following the tragic accident on the Smiler roller coaster and guilty pleas being entered by the company for serious health and safety failings (which led to a notable reduction in fine). The courts are becoming increasingly confident in handing out these large fines, and the consensus is that we will see more and more of these in months and years to come.

There had until recently been much discussion about whether the Scottish courts might refer to the new guidelines when sentencing. A recent Scottish Appeal Court decision concluded that these guidelines are indeed the appropriate guideline to refer to “as a cross check” for health and safety sentences. What seems a likely outcome as a result is the introduction of higher fines for health and safety offences in Scotland, in keeping with that witnessed in England and Wales.

Another significant impact of the guidelines is the increased possibility of custodial sentences for individuals involved in offences with ‘very high’ or ‘high’ culpability. Possible custodial sentences are not restricted to Directors and owners of the company but can also include senior management and others involved in decision-making. Sentences range from 6 months to two years. Again it is stated that such penalties are designed to make restaurant managers and workers ‘sit up and take note’ of the potential seriousness of the so called Regulatory offences involved. A recent example of this was the sentencing of the owner of a chain of Indian restaurants in Yorkshire to six years in prison. Even though the owner was not present at the time of the offence he was found guilty of manslaughter and six food safety offences following the death of a customer who suffered a severe anaphylactic shock and died after consuming a dish labelled “no nuts” in one of his restaurants. Although the dish was not intended to contain nuts the owner had used a cheaper ingredient containing peanuts in an attempt to cut costs, which cross contaminated other food in the kitchen. These developments have prompted industry concern that the effect of the guidelines on individuals will be more dramatic than intended, with terms of imprisonment imposed for offences that would previously have not met the threshold for such a sentence. The long term effect remains to be seen, but this is certainly an aspect of the guidelines that should not be ignored.

However, it is not just the Sentencing Council’s guidelines which are heralding renewed focus on the enforcement of food safety and hygiene offences. Another factor is the drive to implement quasi self-regulatory systems. The most high profile example of this is the FSA’s recent announcement that it will work with Tesco and pub giant Mitchells & Butler from December 2016 on a new approach to enforcement. They will start a three-month trial during which time the companies will audit their own food and drink supply chains. The FSA has come under some criticism for this change of approach, but maintains that it is the responsibility of businesses to make food safe. It is not yet clear whether this change in approach will have positive effects in relation to food offences. The plan to allow big food to police the nation’s food safety is controversial but could be ground-breaking for the sector.

The final fresh approach to the enforcement of food safety and hygiene law is one that all food establishments should have at the front of their minds (and their premises!) – the announcement that the increasingly significant and scrutinised National Food Hygiene Rating Scheme, or in Scotland, the Food Hygiene Information Scheme (‘Scores on the Doors’), may move from being a voluntary six-tier scheme in England to one that is compulsory for all food businesses. This is already the position in Wales and, more recently, Northern Ireland, where it is compulsory for food businesses to display rating stickers. This rating system , now receives more publicity and media attention than ever before, ranging from national press level down to social media platforms. This has not only encouraged a competitive drive between restaurants to receive the highest possible rating, but has also increased public awareness of the ability to hold food establishments to best standards and make reports to authorities where necessary. Indeed the impact of social media cannot be underestimated. Whilst the sizeable fines and terms of imprisonment established by the guidelines will be the primary concern for individual operators and food businesses, the power of social media to promote awareness of food hygiene breaches and place these at the front of the minds of the Regulator and the public should never be underestimated.