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Food Safety Column - D is for Due Diligence

Sterling Crew RSci FIFST, Chair of IFST's Food Safety Group, writes about due diligence in the UK

Background
The term "due diligence" originally came into common use as a result of the United States Securities Act in 1933 and has since been widely adopted. Although established in other UK regulatory sectors, it was first incorporated into UK food legislation in the Food Safety Act 1990 (FSA90).

The FSA90 offences are "absolute". The prosecution does not have to show that the defendant intended to commit an offence. It is enough that a particular provision of the FSA90 or of any associated regulations has been broken. Due diligence is the FSA90’s principle defence and was introduced to ensure a degree of fairness for the defendant. It is designed to balance the protection of the consumer against the right of a food business if it has taken all reasonable care to avoid committing an offence. The purpose is to encourage food traders to take proper responsibility for their products. An understanding of the way the due diligence defence operates is essential for any Food Technologist working in the commercial sector.

The FSA90 due diligence defence states:
“.....it shall.....be a defence for the person charged to prove that he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence by himself or by a person under his control.”

Although the burden of proof lies with the person or company accused, they need not establish their case beyond all reasonable doubt. They only have to persuade the court that they exercised due diligence on the balance of probabilities. An alternative defence open in the FSA90 is if a food business can demonstrate someone else was at fault.

Diligent due diligence
The due diligence defence in UK food legislation has now been in force for almost a quarter of a century and the emerging case law and good practice indicates that an effective approach needs to contain a number key elements:

  • Proactive acts need to be taken by the food business.
  • Controls have to be appropriate for the level of risk and reflect the size and resources of the business.
  • Effective food safety management system based on HACCP principles which continually assesses the risks to food safety and allocates resources to minimise it.
  • Statistically significant and representative inspection and sampling of materials.
  • Competent trained staff.
  • Appropriate standards of Good Manufacturing Practice.
  • Effective controls on labelling, advertising and complaints analysis.
  • Written records of the reviews and audits of control systems.
  • Effective traceability systems. To assist in any potential withdrawal or recall
  • The senior management of the company is consulted in reviews of the effectiveness of control systems and the development of corrective action.
  • Third party accreditation and testing to give a credible independent challenge and assurance.
  • An effective crisis management system.

Plan ahead
It is wise to have a due diligence contingency plan before a potential prosecution. Don't wait until you're in a crisis to come up with a crisis plan. There is a need to be aware that even the most proactive risk management and mitigation processes will not guarantee avoiding a breach of the Act so food business have to be prepared to manage one.

By their nature, due diligence systems are fluid and need to be reviewed and challenged regularly. Clearly once aware of an issue or problem a company has a responsibility to deal with it. This must be carried out quickly and effectively with regard to the potential risk. The due diligence approach is a foundation stone of good corporate governance and is a key instrument in the Food Technologists food safety management tool box. The Food Technologist should also be familiar, or have access to professional legal advice, with the Police and Criminal Evidence Act in relation to conducting interviews under caution. It is not unlikely that they may have to present the business case to the enforcing authorities.

Cost of damage
The liabilities if found guilty under the FSA90 are significant. Under Regulation 35 FSA90, a person guilty of any offence under the Act shall be liable on conviction to a fine or imprisonment for a term not exceeding two years or to do both. On summary conviction there is a fine of up to £20,000 and a term not exceeding six months or to do both.

As has been amply illustrated by the recent “Horse meat scandal”, the greater cost can be reputational damage. The harm to a business, brand or industry sector, no matter how big or how small, can be catastrophic if consumers lose confidence. For a food business the court which is equally as important, is the “court of public opinion”. By the time a case has arrived for trial reputational damage has often already been inflicted. Food Technologists can use the due diligence approach  to minimise this risk. Effective due diligence systems simply help deliver safer, legally compliant food.

Sterling Crew RSci FIFST is Head of Technical at Kolak Snack Foods and Chair of IFST's Food Safety Group.
Email: Sterlingmcrew@aol.com

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