The Food Standards Agency (FSA) has published guidance with templates on withdrawal and recall for unsafe food, as well as information on:
- traceability systems
- making a decision on carrying out a withdrawal or recall
- roles and responsibilities
- the key principles to effectively inform consumers of a food recall
The key legal obligation for withdrawal/recall for food business operators is set out in Article 19 of Regulation 178/2002: If a food business operator considers or has reason to believe that a food which it has imported, produced, processed, manufactured or distributed is not in compliance with the Food Safety Requirements, it shall immediately initiate procedures to withdraw the food in question from the market where the food has left the immediate control of that initial food business operator and inform the competent authorities thereof. Where the product may have reached the consumer, the operator shall effectively and accurately inform the consumers of the reason for its withdrawal, and if necessary, recall from consumers products already supplied to them when other measures are not sufficient to achieve a high level of health protection.
An investigation or assessment of whether there may be a breach of Food Safety Requirements should consider whether food is injurious to health and/or unfit for human consumption. The FSA guidance concentrates more on the generalised concept of ‘unsafe’ rather than any detailed assessment criteria for what may constitute ‘unfit for consumption’ which tends to be based on conditions of use and acceptability to the ultimate consumer.
The very real difference between the legal requirements for a (i) withdrawal and (ii) recall when ‘other measures are not sufficient to achieve a high level of health protection’ should also be stressed
It is also important that commercial considerations such as ensuring the protection of brand reputation etc should also be reviewed after legal obligations are complied with; for example, a company may wish to undertake a withdrawal for commercial reasons even if there has been no specific breach of food safety.
Food businesses should be reminded of the importance of obtaining legal advice at the earliest point feasible in their investigations and the application of confidentiality to all legal advice.