Are the Food Standards Agency “privatising” their enforcement function?

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The Food Standards Agency (FSA) were forced to deny that they were “privatising regulation” of the food sector earlier this year when the “Regulating Our Future” (ROF) regime was set out. The aim of ROF was to ensure a risk-based, proportionate approach to enforcement was introduced.

Mills & Reeve invited Rod Ainsworth, head of legal policy at the FSA, to discuss this with a panel, including Jessica Burt, Mills & Reeve’s own specialist food lawyer and Jonathan Goulding, head of barristers’ chambers Gough Square Chambers, as part of a joint event with The Food Law Group in June 2018. 

Rod Ainsworth made it clear that it should be up to business and private companies to ensure their own compliance with food legislation, and there would be no apology for this. In order to provide a modern food enforcement body to police this there needed to be a robust and resilient, risk-based approach taken that focussed on those areas and companies that actually needed the increased scrutiny. The FSA needed to be able to adapt as the global food economy changes and as technology develops in the future. This will allow the system to adapt quickly to changing risks and respond to changing patterns of food production, trade and consumption. 

Enhanced Registration

This is the system that requires additional information from food companies at the time of registration. The new digitally-enabled approach will be designed to make it easier for businesses to register and easier for them to access information and guidance and will be launched March 2019. It is not yet clear how much information this “enhanced” system may require but its’ design and the information that is provided is proposed to lead into the automatic risk grading of the food business. 

Segmentation of business

With this increased information the FSA proposes to be able to segment business according to its’ risk to the consumer/breaching legislation. There will be a “risk engine” or advanced algorithm to grade companies according to risk. It is proposed that this “risk engine” will use a set of business rules to generate a “risk score”, which segments businesses into categories. This categorisation will determine the nature, frequency and intensity of official controls for all new business using the online service to register. It may, according to future consultations, also determine the need for initial inspections, etc. 

However, one of the concerns raised was how communication might be facilitated to Local Authority EHOs both within the primary or home authority and nationwide. 

Primary Authority National Inspection Strategies

For multi-site operators, the FSA have proposed a focus on the controls that operate at business level rather than doing this routinely at each individual outlet. Therefore, looking at policies and system management at HQ level rather than practical application down the line. The FSA are currently developing Standards for this via Primary Authority National Inspection Strategies (NIS). 

This shows a degree of trust in Food Business Operators (FBOs) that the FSA was challenged on. However it is stated that NISs are suited to multi-site businesses (or groups of businesses) that demonstrate high levels of compliance. Assurance that the business is meeting its responsibilities is to be assessed centrally by its primary authority, feedback from LAs will be used to check that the NIS is working and the FSA will have oversight that the approach is reliable and robust. 

The objective being that responsible businesses face a lower burden from regulation, and LA resource can be better targeted to the businesses that present the greatest (residual) risk to public health. 

Out-sourcing Funding?

The funding of enforcement systems will be consulted on. The principles underlying the FSA’s approach are stated to be ensuring sustainability:

  • Costs to be recovered will be specifically identified so that there is transparency for businesses.
  • Costs should be no more than they need to be adopted within each country and within different sectors.
  • No assumption that one size fits all and different approaches may be adopted within each country and within different sectors.
  • Charging systems will be easy to understand by businesses and easy for the delivery bodies to operate and administer.
  • Charging systems will be fair and equitable, encourage innovation, incentivise compliance and provide good value for money.

One benefit was that the same approach to funding as that taken for the meat processing plants and abattoirs was ruled out. 

Summary

Currently there are more questions than answers for this new approach, however it should be welcomed with optimistic caution. There are however a great many gaps as to what information will be required from FBOs and exactly on what basis “segmentation” may take place. 

Nevertheless, the resources and technology of much of the private food sector and the extensiveness of the checks and audits taken means the FSA is rarely assisting or adding anything to these businesses. The FSAs own resources and scrutiny could go to much better use elsewhere. 

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