Falling Foul of EHO’s and Trading Standards!
Do food businesses really understand the legislation regarding the running of a food business? Teeside Crown Court on 23rd May 2016, in a case thought to be another legal first that sets a precedent for the food industry, found a restaurant owner guilty of manslaughter by gross negligence and jailed him for six years. The Judge called him ‘reckless’ for cutting corners and using cheaper ingredients containing peanuts after a customer had an allergic reaction to eating a takeaway curry.
The owner claimed he left managers to run his restaurants and that included ordering stock and hiring staff. He also told jurors he was not on the premises of the North Yorkshire restaurant when the meal was ordered in January 2014. Six other food safety offences were taken into account but he was cleared of a charge of perverting the course of justice.
Each year in the UK over 850,000 ‘less extreme’ cases of food poisoning are still reported, with over 23 million lost working days, which costs this country more than £350 million. A fair number of people also suffer with food related allergic reactions but many of these go unreported. Food legislation in the UK exists to keep the public safe and the task of policing the risks that could affect the health of the public is the job of local authority Environmental Health Practitioners.
Cases where customers’ safety has been put at risk due to the negligence of food operators are increasingly being publicised in the media; and we are being made more aware of the hefty fine, custodial sentences or a combination of both being handed down by the courts. Fiona Sinclair, from food safety experts STS, explains the powers that the enforcement officers have and the risks that food operators face if they do not abide by legislation.
Do food businesses really understand the powers that Environmental Health Officers (EHOs and Trading Standards really have? These professionals are tasked with protecting the public’s health and have a great deal of power, working under the Food Hygiene Regulations, which covers the production of food, including training and food safety management using HACCP safety principles which include temperature control, cross contamination control and personal hygiene to name but a few. Furthermore, their powers reach all sectors of the food market and that includes the UK street food scene.
When visiting any food business what can owners or managers expect? Enforcement officers have a great deal of power when it comes to enforcing food safety standards. Firstly these officers, regardless of whether they have prior knowledge or not of a breach in public health legislation, have a ‘power of entry’ and can enter and inspect a food premises, at all reasonable hours, unannounced and act upon whatever they find during that visit. An exception is a private dwelling where 24 hours notice has to be given by the occupier. Officers may take informal action where the food business may need to tighten up on its controls, or in more severe breaches of regulations, can serve formal notices, which if the food business fails to act upon are likely to result in the business operator facing criminal proceedings and prosecution which inevitably results in a fine, imprisonment, or both.
The consequences that food operators can expect for breeches in legislation vary. For minor breaches an informal notice or letter is the norm. If this informal approach is unsuccessful, or the seriousness of a breach warrants it, improvement notices are the next option. These will outline what is wrong, why it is wrong and suggest how to put it right. These carry a timeframe of a minimum of 14 days in which the food business must take remedial action. Failure to comply may result in prosecution and subsequent penalties.
In more extreme cases, where there is an imminent risk to public health, such as pest infestation or outbreak, a Hygiene Emergency Prohibition Notice may be served, which when confirmed by a Magistrates Court, results in the premises being closed down. The business may only reopen once the enforcement bodies are satisfied that there is no longer a threat to health posed by the food business.
In December 2014 new regulations were introduced to protect consumers from the effects of allergens in food. Regulation (EU) 1169/2011 on the Provision of Food Information to Consumers states that; ‘food businesses must declare the 14 allergenic ingredients in both pre-packed and non pre-packed food’.
Thankfully most food allergy reactions are mild. However, in the UK each year around 10 people die as a direct result of an allergic reaction to food. In addition, a further 1300 asthma related deaths are thought to be associated with a food allergen reaction. Statistics from the European Commission state that 7 out of 10 allergic reactions happen when eating out, suggesting diners are either unaware of the fact that they have a food allergy or the food business has not communicated well enough to the diner which dishes contain allergen ingredients.
In addition to the restaurant owner found guilty of manslaughter, a takeaway chef was also prosecuted earlier this year after EHOs found a filthy water bottle in the kitchen that was covered in faecal matter. The chef admitted not using toilet paper due to religious beliefs, instead using the bottled water to rinse his hands. He pleaded guilty to ten counts of breaching food hygiene regulations and in 2015 he had been fined more than £5,000 for ten similar food hygiene offences.
Another case saw the chef and the manager of the Railway Hotel in Hornchurch, Essex, jailed for obstructing the course of justice by falsifying temperature and cooling records. One woman died and 33 diners suffered food poisoning following a Christmas lunch where the defrosting and heating of the festive turkey was not conducted correctly.
The consequences of non compliance can depend on the type of court hearing the case. For cases heard in a Magistrate’s court, the Court can impose a prison sentence of up to six months and a fine up to £20,000 for serious offences. In more severe cases, a Crown court can pass down a custodial sentence of up to two years for a food related offence with unlimited fines and even sterner sentencing can be applied if the crime is more serious as in manslaughter in the earlier example.
So what steps can street food businesses take to stay within the law? Firstly there is a requirement to register as a food business with your local environmental health department, so that they are aware the business exists and can arrange an inspection. Key requirements that street traders will be expected to comply with include having a documented food safety management system based on HACCP principles. This includes ensuring all general requirements for a food premises are met, which for the street food scene may include both the food stall and the prep kitchen back at base. All food handlers must be trained in food hygiene commensurate with their work activity, which for street food vendors may include the owners and managers of the business plus all staff. Level-2 is the usual level required for staff cooking and preparing food. Of course, the business must also have a failsafe system in place to ensure that they know exactly which of the 14 allergens identified by law are present in the food they provide; and have systems in place to avoid accidental cross contamination.
What does this mean for operators in the street food scene? In the eyes of the enforcement authorities, the size of the food business or its place of operation is of no consequence and does not exclude it from complying with the appropriate food legislation. The same principles apply and as a result the same breaches of Food Legislations would carry the same sentencing, which may be custodial depending on the severity of the breach.
So, the solution should be to get your processes in place, seek help from your Local Authority EHO, or from an organisation like STS a well respected food safety and health & safety consultancy that has packages for the smaller food retailer and manufacturer.
For more information please call: 01252 728300 or visit www.sts-solutions.com