A Healthier Scotland: Creating a New Food Body: Consultation Analysis

6. REGULATION POLICY, ENFORCEMENT AND MONITORING

Background

6.1 Scottish Ministers have decided that issues of food safety should not be divorced from those relating to nutrition, labelling and standards. The new food body will, therefore, retain responsibility for food labelling and food standards as well as food safety, and will have at least the same statutory powers as the FSA has at present.

6.2 The consultation asked:

Question 8: Do you consider that the new food body would require any further statutory powers, in addition to those that the FSA already has, to equip it to deal effectively with incidents such as the recent horse meat substitutions, and to prevent such incidents happening? Please give reasons.

6.3 Eighty six (68%) of the 126 respondents addressed this question as follows:

Table 5: Views on whether the new food body requires further statutory powers

Response	No. of respondents	% of respondents
Yes	39	45
No	20	23
Possibly - wait for outcome of horse meat investigation	2	2
Need to review existing statutory powers first	2	2
Depends on whether remit is extended	1	1
Not sure	1	1
Commentary only	21	24
Total	86	100

NB Percentages may not add to 100% exactly due to rounding

Views of those in favour of further statutory powers

6.4 Of those who addressed this question, 45% considered that the new food body should have further statutory powers in addition to those that the FSA already has. Local authority respondents featured significantly amongst these supporters.

6.5 There was much support (12 mentions) for the proposals set out in the FSA's consultation on Primary Enabling Legislation.

6.6 Calls were made (8 mentions) for additional powers to impose fixed penalties and other notices, particularly for minor, low risk contraventions. Such interventions were viewed as potentially more proportionate and appropriate for many cases rather than the current route of reporting them to the Procurator Fiscal. Comments included:

"Notice procedures would enable the enforcer to be clear about the nature of a contravention and the timescale for compliance. They should divert effective measures from the courts as far as possible but provide safeguards through appeals procedures" (Scottish Federation of Meat Traders).

"We believe that fixed penalty notices would assist in improving compliance with food safety standards. This would be an effective and proportionate response for issues such as the sale of food beyond the use by date" (North Lanarkshire Council).

6.7 A recurring view (7 mentions) was that additional statutory powers are needed to allow for unannounced visits to approved premises and seizure on grounds of standards in addition to safety.

6.8 There was general support for reviewing and strengthening penalties (6 mentions, largely local authorities), with one respondent arguing that "at present the financial gain (from criminal offences for non-compliance with food labelling legislation) outweighs the penalties" (Moray Council).

6.9 Other additional statutory powers recommended by respondents for the new food body included:

• powers to enforce Protected Geographic Indications (IRB, LA)
• Scottish passport system for horses (Prof A&U, Third)
• consideration of extending regulation 27 of the Food Hygiene (Scotland) Regulations to food provided without adequate evidence of source (Ind)
• random testing and sampling (PB)
• the same powers already applying to food hygiene to apply to food standards (IRB)
• greater enforcement powers (PB)
• powers to request stricter labelling (e.g. to indicate whether meat has come from animals slaughtered without stunning; method of rearing) (Third)
• enhanced powers in relation to registration of businesses and operators across the supply chain, including brokers (Cons)
• enhanced powers to require businesses to display hygiene ratings (Cons)
• legislation to introduce licensing of high risk premises (PB).

6.10 A recurring theme (18 mentions) was that the new food body and others involved in official controls should be adequately resourced to carry out their statutory duties. Ten respondents referred specifically to Audit Scotland's report, "Protecting Consumers" with regards to workforce planning.

6.11 Further general comments included calls for investigation and enforcement responses to be prompt, consistent but flexible across boundaries. Two respondents (LA, LA) recommended that the new food body have the power to transfer enforcement responsibility on a permanent or temporary basis to where it is needed in the interests of the consumer. Others (LA, Prof A&U) advocated the powers for cross-border authorisation of officers to deploy resources at times of need, for example in public health emergencies. One respondent commented:

"The new food body will require the power to investigate food related incidents promptly, publicly and independently. Identifying those responsible is necessary to act as a deterrent as commercial pressures driving these incidents will always exist" (Public Health Nutrition Research Group, University of Aberdeen).

6.12 In considering additional statutory powers for the new food body, two respondents (PB, Bus) requested that consistency with the rest of the UK should be maintained as far as possible.

Views of those who did not perceive the need for further statutory powers

6.13 Of those who provided a view, 23% did not consider that the new food body requires additional statutory powers over and above those that the FSA already has. Industry representative bodies were particularly well represented amongst the respondents holding this view.

6.14 Referring to the recent horse meat incident, a recurring view (5 mentions) was that that this represented criminal activity which was a matter for the criminal justice system, rather than revealing any inadequacies of FSA's current statutory framework.

6.15 A general theme (8 mentions) was that the statutory powers available are adequate but need to be applied effectively, with greater attention given to the activities of intelligence gathering and targeted testing. One respondent summed up his view thus:

"It is idealistic to suggest that (statutory) powers prevent incidents. The complexity of the food chain and the opportunities to exploit are a major contributor to the incidents which have arisen. Unless decisions are taken to minimise the supply chain then this will always be difficult to control. It is also not just about powers, but resources to pursue these powers. There is a declining resource within the agency, local authorities and scientific services able to monitor and control food safety" (Ind).

6.16 Four respondents including two industry representative bodies, called for enforcement strategies to be reinforced rather than statutory powers extended. One commented:

"NFU Scotland does not believe that additional statutory controls are necessary. The appropriate regulations are in place, but we need increased enforcement and compliance" (NFU Scotland).

6.17 The consultation asked:

Question 9: Do you have any further comments about how the new food body might ensure that it can deal effectively with contraventions of food standards and safety law? Please give reasons.

6.18 Sixty (48%) of the 126 respondents addressed this question.

6.19 Much of the content of submissions overlapped with comments expressed in response to previous questions, particularly in relation to highlighting what many perceived as a gap in enforcement options between informal response to contraventions, and formal reports of alleged breaches to the Procurator Fiscal. Sixteen respondents (largely local authorities) called for a framework of fixed penalty notices to bridge this gap. However, contrasting views from two industry representative bodies were that greater recourse to fixed penalties as an alternative route to formal prosecution, should not compromise consumer protection or fair justice.

6.20 Further calls (10 mentions from a range of sectors) were also made for enforcement to be implemented promptly, robustly and consistently. One respondent's comments reflected common views:

"Enforcement powers must be thorough, but also timely - there is a need to act quickly so procedures must be in place (and well-rehearsed with named individuals responsible for specific actions) so there is no time lag while procedures are set up and agreed, particularly if there is a question over whether a business is to be allowed to continue to trade meantime or not. These procedures must also be cleared with agencies around the UK to avoid confusion as other agencies/enforcers are likely to be involved" (Ind).

6.21 To enable the new food body to operate in this way, six respondents recommended that appropriate resources be made available.

6.22 Other recommendations on how the new food body might ensure that it can deal with contraventions of food standards and safety law were:

• Establish specialised Procurator Fiscal services to deal with food offences to ensure food crime is prosecuted and punished more consistently (9 mentions, 7 of which were local authorities).
• Increase the severity of penalties, the current penalties being viewed as lacking in deterrent value and too lenient (8 mentions) (although a call was made to ensure a balance is achieved between severity and threatening viability of businesses (Acad)). One view was:
  "Penalties should be commensurate with the level of any contraventions. Until the penalty equals/outweighs the possible 'benefits' we cannot see how there might be an effective deterrent" (Association of Meat Inspectors).

• Focus on prevention, through education (for example, for producers, public) and working collaboratively with others in environmental health, health and safety, and so on (5 mentions).
• Increase intelligence functions, from linking with EFSA to identify emerging risks, to introducing a contact telephone number for the public to report their concerns (4 mentions).
• Improve traceability through better licensing and food registration regimes (3 mentions).
• Consider the powers that are being proposed in the Regulatory Reform (Scotland) Bill for environmental regulation with a view to assessing the appropriateness of similar powers to regulate the food and feed businesses (3 mentions).
• Streamline and coordinate cross-border working arrangements (2 mentions).
• Revise inspection strategies so that they become more focused on the complexity of food (e.g. number of ingredients, length of supply chain) (2 mentions). One view was:
  "The food producers must be persuaded that robust inspection is a selling point which will protect the brand of Scottish meat, so that consumers throughout the world can be ensured they are receiving a quality product. Investigations and prosecutions are not a sign of 'weakness' of the brand, rather an indication of an industry that is properly inspected and regulated" (Unison).

• Retain the independence of the new food body so that it does not become influenced by powerful business interests (2 mentions).
• Establish stand-alone food services within local authorities reporting directly to the Chief Executive, funded by the Scottish Government with ring-fenced monies (1 mention).
• Make the Food Hygiene Rating System mandatory with information displayed for consumers to see (1 mention).
• Learn from legislation elsewhere in the UK and further afield (1 mention).

6.23 The consultation asked:

Question 10: Should the new food body take on any regulatory, enforcement or monitoring roles and responsibilities not currently fulfilled by the FSA in Scotland? If yes, please give details and reasons.

6.24 Eighty four (67%) of the 126 respondents addressed this question. A few further respondents simply referred to their responses to previous questions, notably questions one and eight. The content of responses ranged from detailed lists of specific roles and responsibilities proposed for the new body, to general debate about the pros and cons of centralising such functions.

Views on underpinning principles

6.25 A few respondents suggested general principles which they considered should underpin decisions on the allocation of regulatory, enforcement or monitoring roles and responsibilities. Their suggestions are summarised below:

• Decisions should be preceded by extensive consultation with the stakeholders affected.
• Changes should be based on sound evidence that this is merited and will deliver efficiencies.
• Changes should deliver better outcomes for consumers.
• Independence of the new food body and existing relationships should not suffer.
• Additional roles and responsibilities should be taken on only where gaps are identified. One respondent commented:
  "Scotland is a relatively small country with limited resources and expertise, therefore it is essential that the role, remit and responsibilities of different organisations in relation to the nutrition agenda are absolutely explicit and understood. A needs assessment and stock-take would provide an opportunity to identify gaps if they exist" (NHS Tayside).

• The rationalisation of certain controls makes sense, for example, one body regulating both food hygiene and food standards.

• Under a more centralised model, inspection regimes could be rationed by becoming more risk-based.
• Centralisation should be considered where the controls require to be of a specialised nature, involving complex activities, with application infrequent and dispersed geographically.
• Where controls cross local authority boundaries and could be challenging to administer, centralised controls may be more effective.
• Should be centralisation of particular controls highlighted by the European Commission's Food and Veterinary Office and controls relating to international trade.
• There needs to be provision of central support to local authorities where centralised provision is likely to be more efficient and fairer to individual local authorities, for example, where economies of scale can be achieved.

6.26 Others agreed that some functions could be brigaded more effectively. An example was provided of veterinary resources, which one respondent perceived to be currently:

"...disparate with 'Government', in the shape of the FSA, AHVLA and Scottish Government all managing a corps of vets" (Scottish Association of Meat Wholesalers).

This respondent considered that bringing AHVLA within the FSA would lead to a single management command and increased flexibility to fully deploy vets flexibly and cost effectively.

6.27 One local authority called for the SFELC, which currently coordinates food law enforcement and sampling and surveillance activities of Scottish local authorities, to be formalised through legislation as part of the process of establishing the new food body.

6.28 Another basic principle to be incorporated into any revised regulatory, enforcement or monitoring roles and responsibilities regime, according to four respondents is that of maintaining flexibility in the process. It was considered that the establishment of a new food body provides a significant opportunity to create such flexibility to enable the transfer of statutory responsibilities between agencies where official controls would be better delivered by one or other body according to local needs, intelligence and circumstances.

6.29 Two respondents urged that any expanded roles for the new food body should take cognisance of:

• wider environmental issues such as carbon foot prints (Third)
• health inequality impact assessment (PB).

Views on the areas already suggested by stakeholders for regulatory, enforcement or monitoring roles for the new food body

Animal health and animal by-products

6.30 Seven respondents commented, with six agreeing this area of responsibility for the new food body; and one respondent (Ind) disagreeing, although suggesting that the new body could regularly review the updates on TSEs, produced by the appropriate authorities.

Food labelling

6.31 Six respondents envisaged food labelling sitting under the auspices of the new food body's regulatory, enforcement and monitoring regime.

Provenance

6.32 Seven respondents agreed that the new food body would be well placed to enforce related matters, particularly where they crossed boundaries, such as tracing the movement of livestock.

Dairy and egg production controls

6.33 Eight respondents agreed that this seemed appropriate, with one stating that such controls, "fit wholly within the general food safety/standards remit of the body" (Scottish Food Advisory Committee).

Drinking water quality

6.34 Seven respondents (largely public bodies) provided views on where responsibility should lie. Five agreed that responsibility for the quality of tap water should remain with the Drinking Water Quality Regulator (DWQR). It was remarked that this body also regulates drinking water for private supplies, and appeared to be effective and efficient in operation, with no strong reason to alter this arrangement. According to one respondent:

"...there is a risk that giving another body responsibility for drinking water quality could introduce unnecessary confusion and/or overlap" (Water Industry Commission for Scotland).

6.35 Two respondents (IRB, Bus) favoured the new food body taking on responsibility for drinking water quality.

6.36 One individual respondent suggested that the new food body take over regulatory responsibility for the quality of "all spring and bottled waters, flavoured or not, fizzy or still".

Public analyst functions

6.37 Views were divided amongst the eight respondents who provided views on the location of public analyst functions once the new food body is established. Six argued for public analyst functions to remain independent from the new body, decentralised within local authorities, in order for these functions to be coordinated with other related issues.

6.38 The other two respondents (LA, Ind) advocated the new body taking on public analyst functions only so far as they related to food matters, with the remaining aspects retained by local authorities.

Further suggestions for regulatory, enforcement or monitoring roles for the new food body

6.39 The following suggestions were made for additional roles:

• delivery of official controls during primary production (LA, LA, LA)
• delivery of official controls relating to the supply and manufacture of materials and articles in contact with food, food additives and processing aids (LA, LA, LA).
• coordination of export certification and liaison with third countries (LA, LA, LA)
• enforcement of equine regulations (Third, Prof A&U)
• import controls at points of entry including existing local authority controlled Border Inspection Posts and Designated Points of Entry (LA, LA)
• promoting Scotland's "larder" as natural, fresh and healthy (Ind)
• adoption of a consumer-facing approach to service provision, complaints and ombudsman procedures (IRB)
• independent evaluation of policy and legislation relating to nutrition/food and public health (Acad)
• sourcing and development of technical, professional and practical training for food and feed enforcement officers (LA)
• overseeing good food education and school meals (Third)
• standard setting for welfare-assured schemes (Third)
• provision of phytosanitary protocols (IRB)
• monitoring of primary honey production (IRB)
• transfer of responsibility for inspections relating to farmed fish and shellfish which are currently under the auspices of the Fish Health Inspectorate of Marine Scotland (IRB)
• provision of veterinarian services for the official certification of carcasses/meat products for export (IRB)
• testing of meat for veterinary residues (IRB)
• enforcement of cross-boundary food services, for example, those on board passenger vehicles (LA)
• determination of approval of establishments under Regulation (EC) no. 853/2004 (LA)

Views on contribution of local authorities to official controls

6.40 A prominent theme amongst local authorities was that they currently provide an effective and efficient enforcement regime, aspects of which may be best left to local delivery. It was commonly felt that wholesale transfer of official food controls from local authority delivery to become the direct responsibility of the new food body could have a detrimental effect on the viability of the Environmental Health Service in Scotland. Three respondents (PB, Ind, IRB) argued that the new food body would not have the necessary local knowledge and understanding to fulfil this role effectively, with local authorities also likely to provide a speedier service. They considered that should deficiencies be identified in the service provided by local authorities, then rather than transferring the service delivery elsewhere, improvements should be identified in discussion between the new food body and local authorities.

6.41 Ten local authorities emphasised that the benefits of the current holistic nature of environmental health services should not be jeopardised by the reorganisation of the delivery of food controls. They considered that a separation of food law enforcement from general environmental health activity could detract from the wider protective service in Scotland.

6.42 Three respondents provided a contrasting perspective, arguing that centralisation of the delivery of food controls would be helpful by:

• reducing the number of organisations involved in controls (especially where retailers operate businesses in more than one local authority)
• helping to develop expertise within the new food body
• reducing current disjointedness in service
• reducing variation in the interpretation of law.

6.43 Two respondents (LA, PB) were specific in their recommendations for roles and responsibilities which they considered should remain within the remit of local authorities:

• formal approval of all fish processing establishments
• inspection of fish at point of first landing and prior to wholesale at auction markets
• routine inspection of businesses
• inspection of third country imports of fishery products at Border Inspection Posts
• issue of export certification for fishery products exported to third countries
• delivery of official controls relating to feed hygiene and standards.

Views against the new food body taking on additional regulatory, enforcement or monitoring roles

6.44 Twenty (24%) respondents who provided a view appeared to be largely against the new food body taking on additional regulatory, enforcement or monitoring roles in areas where the FSA does not currently have a role. Three (Cons, LA, PB) expressed concern over whether the new body would be resourced sufficiently to perform additional functions. One commented:

"Unless there is significant additional funding, the new food body should consolidate and retain existing staffing levels and competencies without taking on too many new roles and responsibilities" (Dundee City Council).

6.45 Others argued that there is no good reason for an extension in roles and responsibilities (Acad, LA, PB); a further four respondents (LA, Cons, PB, Third) cautioned against the new food body becoming too large and losing its core focus. According to two respondents (PB, Ind), extending the new food body's roles and responsibilities in relation to regulation, enforcement and monitoring could add a layer of complexity and create confusion.

6.45 Two industry representative bodies suggested that the new food body establish itself first before considering taking on additional roles and responsibilities.