Chocolate wafers produced in the Netherlands and distributed to Australia, Austria, Belgium, France, Germany, Ireland, Italy, Luxembourg, Malta, Sweden, Switzerland and the UK have been recalled due to possible salmonella contamination. This contamination was reportedly due to a production error. There are as yet no reports of illness from the pathogen. Retailers are implementing recalls including Tesco and Sainsbury’s in the UK as a ‘precautionary’ measure.
Lessons have clearly been learned from the 2006/7 salmonella contamination in Cadburys products that resulted in 42 people becoming ill and 3 having to receive hospital treatment. Cadbury pleaded guilty to offences that included putting unsafe food on the market and failing to immediately notify relevant authorities. They were fined £1 million and ordered to pay £152,000 costs but spent an additional £20m+ changing procedures in the aftermath of the incident. Although Cadburys found salmonella in its products between January and March 2006, they did not recall products until 23 June because levels of contamination were lower than the standard they assessed to be safe. Prior to 2003, the company had a zero tolerance policy to salmonella in products. This changed to allow a low level of presence as the critical limit; however, this did not take into account the particular way that the pathogen could survive in chocolate.
It is important for all food business operators at every stage of a food supply and processing chain to have a clear crisis management plan and risk assessment programme in place and regularly reviewed and checked.
Furthermore, Hazard Analysis Critical Control Point (HACCP) checks should relate specifically to the particular conditions and context of the products concerned.
Food law is based on the three inter-related components of risk analysis:
- risk assessment
- risk management
- risk communication.
Some confuse the ‘precautionary principle’ (Article 7 General Food Regulation 178/2002) with taking a generally cautionary approach, but it is very different. The precautionary principle will only apply where
(i) there are reasonable grounds for concern that an unacceptable level of risk to health exists; and
(ii) the available supporting information and data are not sufficiently complete to enable a comprehensive risk assessment to be made.
When faced with these specific circumstances, decision makers may take measures or other actions based on the precautionary principle, while seeking more complete scientific and other data. Such measures have to comply with the principles of non-discrimination and proportionality and should be provisional until the time when more comprehensive information concerning the risk can be gathered and analysed.
Whilst what is proportionate will take into account costs, care should always be taken that consumer safety rather than cost is always prioritised. This is particularly important as, in a prosecution, putting finances above safety would be seen as an aggravating feature of the offence and there is no longer a cap on maximum fines in the magistrates court.