
CHAPTER ONE – AN INTRODUCTION TO FOOD LAW TERMS
Introduction
The term ‘food law’ covers a wide range of topics. It includes legal concepts of safety, hygiene and labelling, and broader policy issues including health, food security and sustainability.
This chapter focusses on some of the main terms and concepts that practitioners often come across when advising clients. This is based primarily on my own experience and therefore I offer my pre-emptive apologies if I have missed something that could have been included.
Part of the reason for writing this chapter in this way is to recognise that legislation often ‘imports’ definitions from elsewhere.
For example, section 1 (1) of the Food Safety Act 1990 states; ‘In this Act “food” has the same meaning as it has in Regulation (EC) No. 178/2002’.
On other occasions, the legislation might use a term that it does not define, but referring to another piece of legislation might help in understanding the concept. For example, as will be seen shortly, the definition of ‘food’ includes ‘processed, partly processed or unprocessed’. Those words are not defined in Regulation 178/2002 but guidance may be found in the definitions set out in Regulation 852/2004 on the hygiene of foodstuffs.
Although the UK is no longer a member state of the European Union, some of the key definitions are taken from EU legislation, now referred to as assimilated law, that applied when the UK finally ended its relationship with the EU (31 December 2020). References in this chapter to EU legislation are to that version.
Assimilated law contains amendments to the EU legislation that were needed to remove unnecessary references to EU institutions (e.g. the European Food Safety Authority – EFSA) and to make them UK-specific (e.g. by referring to the new roles of the Food Standards Agency and Food Standards Scotland, for example in relation to regulated products and health claims).
Northen Ireland food law continues to be regulated by the current versions of EU food law and hence by current EU food policy.
Assimilated law
The following references are to EU Regulation 178/2002, the General Food Law Regulation.
The purpose of food law (article 1 and article 5)
Food law has two main consumer-focussed objectives:
- A high level of protection of human life and health; and
- The protection of consumers’ interests, including fair practices in food trade, taking account of, where appropriate, the protection of animal health and welfare, plant health and the environment.
Food must be safe (hence the saying, ‘if it isn’t safe, it isn’t food’).
Food must be as described.
Food law must also have regard to the effective functioning of the UK market.
Food (article 2)
‘‘food’ (or ‘foodstuff’) means any substance or product, whether processed, partially processed or unprocessed, intended to be, or reasonably expected to be ingested by humans’.
Having regard to the objectives, it is not surprising to find a broad definition of food.
Food includes drink, chewing gum and any substance, including water, intentionally incorporated into the food during its manufacture, preparation or treatment. It includes water after the point of compliance as defined in Article 6 of Directive 98/83/EC and without prejudice to the requirements of Directives 80/778/EEC and 98/83/EC.
Food does not include:
(a) feed;
(b) live animals unless they are prepared for placing on the market for human consumption;
(c) plants prior to harvesting;
(d) medicinal products within the meaning of Council Directives 65/65/EEC and 92/73/EEC (now Directive 2001/83/EC);
(e) cosmetics within the meaning of Council Directive 76/768 (now Regulation (EC) 1223/2009);
(f) tobacco and tobacco products within the meaning of Council Directive 89/622/EEC (now Directive 2014/40/EU);
(g) narcotic or psychotropic substances within the meaning of the United Nations Single Convention on Narcotic Drugs, 1961, and the United Nations Convention on Psychotropic Substances, 1971;
(h) residues and contaminants.
Points (d) and (e) can arise in relation to so-called ‘borderline’ products. These are products where the intention is to market them as a food but due to their function or description, they cross the border and come within the legal definition of a medicinal product or a cosmetic product.
For example, a food must not be labelled as preventing, treating or curing a human disease (article 7 of the Provision of Food Information to Consumers Regulation 1169/2011). If it was so described, it might come within the definition of a medicinal product by presentation (regulation 2 of the Human Medicines Regulations 2012).
Article 3 of Regulation 178/2002 contains many important definitions;
Food law (article 3 (1))
‘means the laws, regulations and administrative provisions governing food in general, and food safety in particular, …; it covers any stage of production, processing and distribution of food, and also of feed produced for, or fed to, food-producing animals’.
Food business (article 3 (2))
‘means any undertaking, whether for profit or not and whether public or private, carrying out any of the activities related to any stage of production, processing and distribution of food’.
Food business operator (article 3 (3))
‘means the natural or legal persons responsible for ensuring that the requirements of food law are met within the food business under their control’.
This is an essential term applicable in many areas of food law. This person has the primary obligation to ensure that food law is complied with in their businesses (e.g. article 17 of Regulation 178/2002 and article 3 of Regulation 852/2004).
The food business operator will be the subject of investigations, enforcement action and, ultimately, criminal prosecution in the event of any non-compliances.
The food business operator may be a company or an individual. An individual who is a food business operator may be investigated and prosecuted. With a corporate food business operator, that may be investigated and prosecuted in that capacity, directors and other senior people may be investigated and prosecuted as individuals by being company officials.
There may be more than one food business operator. This can be seen from the above definition and was clarified in the case of The Queen on the application of Rasool v Tower Bridge Magistrates’ Court [2013] EWHC 4736 (Admin).
Placing on the market (article 3 (8)
‘means the holding of food or feed for the purpose of sale, including offering for sale or any other form of transfer, whether free of charge or not, and the sale, distribution, and other forms of transfer themselves’.
Risk (article 3 (9))
‘means a function of the probability of an adverse health effect and the severity of that effect, consequential to a hazard’.
Articles 3 (10) – (13) cover risk analysis, risk assessment and risk management
Hazard (article 3 (14))
‘means a biological, chemical or physical agent in, or condition of, food or feed with the potential to cause an adverse health effect’.
Hazard and risk are fundamental concepts in many areas of food law. They inform the preparation of the food safety management system (HACCP), they can determine whether enforcement action is taken and, ultimately whether consumers may be affected by the actions of the food business operator. Risk of harm (along with actual harm) plays an important role in the sentencing exercise.
Failure to properly identify a hazard may result in there only being a nebulous concept of a ‘risk of a risk’. This may not be sufficient.
Much has been said and written about hazard and risk. For present purposes it may be sufficient to say three things.
There must be a hazard before there can be a risk. Expert involvement may be required to comment on whether a hazard exists. If so, is there a risk and if so, what is the extent of the risk for consumers’ health?
Second, reference may be made to an often-cited example, one version of which may be found on the website of the BfR, the German Federal Institute for Risk Assessment.
A tiger is a hazard. If the tiger is locked securely in a cage, it creates no risk to humans. If the tiger is behind a fence, which it is capable of jumping, there is a risk to humans who are on the other side of the fence (assessing the level of risk includes many factors including whether the tiger has recently been fed!). If the tiger is free and a human being is in close proximity, the risk of harm increases (by how much also depends on an assessment of several factors – is the tiger hungry, is the human provoking the tiger etc.).
Finally, the evidence required to show a hazard and risk may depend on the situation. A low standard of proof may be sufficient to justify the taking of action to protect public health (e.g. a Hygiene Emergency Prohibition Notice) whereas the same evidence may not be sufficient to support a criminal prosecution (requiring proof beyond reasonable doubt).
Final consumer (article 3 (18))
‘means the ultimate consumer of a foodstuff who will not use the food as part of any food business operation or activity’.
Food law often refers to the ‘average consumer’ who is someone reasonably well-informed, reasonably observant and circumspect.
General food law – domestic legislation
The Food Safety Act 1990 remains the overarching domestic food legislation. It is supported by a series of topic-specific statutory instruments which also apply investigation and enforcement provision of the Act and of assimilated law.
Section 1 (1) states that “food” has the same meaning as it has in Regulation 178/2002.
Section 1 (3) defines “business” which:
‘includes the undertaking of a canteen, club, school, hospital or institution, whether carried on for profit or not, and any undertaking or activity carried on by a public or local authority.’
A “commercial operation” in relation to any food or contact material (separately defined in section 1) means any of the following –
(a) selling, possessing for sale and offering, exposing or advertising for sale;
(b) consigning, delivering or serving by way of sale;
(c) preparing for sale or presenting, labelling or wrapping for the purpose of sale;
(d) storing or transporting for the purpose of sale;
(e) importing and exporting
Section 1 (3) of the FSA 1990 continues:
“food business” means any business in the course of which commercial operations with respect to food or food sources are carried out;
“food premises” means any premises used for the purposes of a food business.
Premises is then defined to include:
‘any place, any vehicle, stall or moveable structure and, for such purposes as may be specified in an order made by the Secretary of State, any ship or aircraft of a description so specified.’
Certain provisions in the FSA 1990 refer to sale or selling (e.g. section 14). For the purposes of the Act, “sale” is defined in section 2 (1) to include:
(a) the supply of food, otherwise than on sale, in the course of a business; and
(b) any other thing which is done with respect to food and is specified in an order made by the Secretary of State
shall be deemed to be a sale of the food, and references to purchasers and purchasing shall be construed accordingly.’
The concept of ‘placing on the market, as defined in Regulation 178/2002, is broader than this.
Section 3 (2) of the FSA 1990 contains an important presumption that:
“Any food commonly used for human consumption shall, if sold or offered, exposed or kept for sale, be presumed, until the contrary is proved, to have been sold or, as the case may be, to have been or to be intended for sale for human consumption.”
Section 3 (3) continues the presumptions:
(a) any food commonly used for human consumption which is found on premises used for the preparation, storage, or sale of that food; and
(b) any article or substance commonly used in the manufacture of food for human consumption which is found on premises used for the preparation, storage or sale of that food,
shall be presumed, until the contrary is proved, to be intended for sale, or for manufacturing food for sale, for human consumption.
In a food incident where food is suspected of being non-compliant or unsafe, it is crucial to quarantine it away from other food and mark it clearly as not for human consumption (or similar wording). This rebuts the presumption and might avoid any issues about the status of that food.
Conclusion
Reference to the legal definitions is necessary when advising clients and when responding to any regulatory actions by the competent authorities.
For example, it may be that the authority is investigating or might even have prosecuted X as being the food business operator. This may be based on the officers having engaged with someone (individual or corporate representative) during an inspection or over time. X might challenge this by saying that, having regard to the legal definition they are not the food business operator for that premises or for that activity.
If a dispute cannot be resolved between the parties, a judge may be required to intervene. They will then have regard to the letter of the law and how it is to be applied in the circumstances.