Scottish Government Consultation on Proposed Options to Improve and Assure the Nutritional Standard of Food in NHSScotland Hospitals

Annex D

Legislation governing food safety

This consultation paper will not provide an exhaustive list of current food law applicable in Scotland, however it will aim to delineate the key legislation governing food standards in the UK and specific to Scotland^[22].

UK Legislation

The principal legislation in relation to food safety in Scotland, England and Wales is the Food Safety Act 1990 (c 16) (as amended) ("the Act"). The scope of the Act covers activities throughout the food distribution chain, from primary production through to distribution to retail and catering. The Act covers food preparation in a number of businesses including hospitals or, institutions (section 1(3). The Act has been amended by the Food Safety Act 1990 (Amendments) Regulations 2004(SI 2004/2990) and the General Food Regulations 2004 (SI 2004/3279) and to implement the requirements of Regulation (EC) 178/20002 and to provide penalties for breaches of these requirements. Regulation (EC) 178/2002 lays down the general principles of food safety which include the requirement on food businesses to place safe food on the market and for the presentation of food.

Many of the key provisions in food law are contained in subordinate legislation (regulations) on more specific areas which may be made under the powers of the Act e.g. food labeling, food hygiene, food additives and packaging materials.

European

The term "food" is given a wide definition under Article 2(2) of Regulation (EC) 178/2002. "Food' means any substance or product, whether processed, partially processed or unprocessed, intended to be, or reasonably expected to be ingested by humans. 'Food' includes drinks, chewing gum and any substance, including water, intentionally incorporated into the food during its manufacture, preparation or treatment. It includes drinking water after the point of compliance e.g. the tap.

Directive 2009/39/EC concerns foodstuffs for particular nutritional uses. It is due to be repealed on 20 July 2016 and replaced with Regulation (EU) 609/2013 of the European Parliament and of the Council - 'On foods intended for young children, foods for special medical purposes, and total weight replacement control (Food for Specific Groups)'. This regulation aims to protect specific vulnerable groups of consumers by regulating the content and marketing of these "special" food products. The regulation sets new general compositional and labeling rules and requires the Commission to adopt these rules through delegated acts. The Foods for Special Groups (Scotland) Regulations should be in force on 20 July 2016.

There is a transitional provision in Article 21 of Regulation (EU) 609/2013 which provides that infant formula and follow-on formula, processed cereal-based food and baby food, food for special medical purposes and total diet replacement for weight control which is placed on the market or labeled before 20 July 2016 may continue to be marketed after that date until stocks of such food are exhausted.

In Resolution ResAP (2003), the Council of Europe produced national recommendations on 'Food and Nutritional Care in Hospitals - How to prevent under-nutrition'. While the resolution established over 100 recommendations, these were summarised into 10 key characteristics of good nutritional care in hospitals^[23]. As a signatory, the recommendations apply across the UK.

Under European Directive 2009/39/EC, there are also regulations governing foods for particular nutritional uses. Foods for particular nutritional uses are foodstuffs which:

• are clearly distinguishable from foodstuffs for normal consumption, either owing to their special composition or manufacturing process;
• are suitable for their claimed nutritional purposes;
• and which are marketed in such a way as to indicate such suitability.

These foods are commonly referred to as PARNUTS, PNU or dietetic foods, and are often marketed to people with digestive or metabolic issues, people who have a physiological condition requiring certain substances in their food, and infants or young children in good health. Under the Directive, as the competent authority for Scotland, Food Standards Scotland (FSS) have to be notified when PARNUTS foods are first introduced to the market. The food manufacturers are required to submit to FSS any scientific data or information that shows the food fulfils nutritional requirements for the intended consumer^[24].