This paper aims at identifying the
soundness of the regulatory regime on food safety in the United Kingdom (UK).
It applies the five criteria as outlined by Baldwin, Cage and Lodge (2012)
whose elements are legislative mandate, accountability, due process, expertise
and efficiency. This focus is expected to facilitate a balanced assessment of
the regulation and identify any weaknesses that it may have. The assessment
shall also be based on Alemmano’s (2013) criteria which focus on the
comprehensiveness of the regulation in terms of its ability to curb the wide
range of violations as well as a determination of relativity of success based
on the violation prevalence trends.
The role of food regulation is to
preserve the life and health of people. The laws developed take into account
the need to protect animals, plants and the environment as the approach to
ensuring that there is sustainability in food production and that the safety of
the food is assured (FSA, 2013; EFSA, 2013). The other principle that is
espoused in food regulation is the right of the consumer to accurate and honest
information about the content of the foods. An additional focus at the European
Union level is to establish a platform through which national laws in member
countries can be harmonised and create a uniform regulatory approach across the
member states. This is for the purpose of eliminating inter-country disputes on
what is allowable in different countries and which may lead to unnecessary
trade disputes (Zurek, 2012). For instance, if food laws in the UK disallow
what the French laws allow, the latter could construe that as a ground
warranting retaliation through other unilateral actions at their disposal.
Besides, the EU regulatory regime helps in curbing cross-border violations that
may be complicated by the inadequate mandate of the national regulatory
agencies.
In the UK, the regulation on food is
founded on several laws which focus on different aspects of food safety. Some
of the regulations with wide applicability include Food Safety (Sampling and
Qualifications) (England) Regulations 2013; Food (Miscellaneous Amendment and
Revocation) (England) Regulations 2013; Food Hygiene (England) (Amendment)
Regulations 2012; Food Additives (England) (Amendment) and the Extraction of
Solvents in Food (Amendment) (England) Regulations 2012; Food Labelling
(Declaration of Allergens) (England) Regulations 2011 and Food Additives
(England) (Amendment) Regulations 2011 (Jukes, 2013). A more comprehensive list
is as listed in Appendix 1. In total, there are roughly over 50 different laws
that can be applied in relation to food regulation with some having a wider
applicability on areas that may be unrelated to food safety. For instance, laws
regulating weights and measures are applicable across other sectors in the
economy while those on labelling of food products tend to reinforce the
advertising regulations that demand responsibility in advertisements with
organisations expected to be truthful in their assertions on what is contained
in the products (Hutter, 2009). In addition to the food laws in the UK, the
country is subject to regulations at the European Union (EU) level.
The European Commission (EC) is the
legislative body in the EU and it has so far generated many laws on food safety
in addition to establishing an agency to implement the laws. Some of the latest
regulations legislated by the EC include the following: Commission Implementing
Regulation (EU) No 716/2013 for spirit drinks’ labelling and geographic
indications; Commission Regulation (EU) No 718/2013 which is an amendment to
the 2004 regulation on labelling of foods and food ingredients; and Regulation
(EU) No 609/2013 on foods intended for young children, medical purposes and
weight control (Jukes, 2013a). Like the UK, food regulation has received a
great amount of attention at the EU levels with numerous laws and regulations
put in place as contained in Appendix 2.
The food regulatory agencies in the UK
are the Food Standards Agency (FSA) and the Department for Environment, Food
and Rural Affairs (DEFRA) (Laverty and Capewell, 2013). Their approach is to
take pre-emptive action in the interest of food safety through research and
determination of food safety standards while also inspecting the current
practices of businesses within the market to ensure that there is full
compliance (FSA, 2013). The FSA and DEFRA share responsibilities in different
regions of the UK as shown in Appendix 3. At the EU level, the regulatory agency
is the European Food Safety Authority (EFSA). This body was founded in January
2002 in reaction to the food crises in the 1990s with the main aim being to
identify food risks and coordinate with national regulators to enforce measures
aimed at guaranteeing the same. The focus of the regulator is to determine the
riskiness of additives and approaches to food preparation among other
functions.
Various theories exist on regulation and
what can be said to constitute good regulation. One such a theory is the
5-dimension for good regulation. Baldwin, Cave and Lodge (2012) outline a criterion
through which regulation can be gauged for its soundness with the elements
being legislative mandate, accountability, due process, expertise and
efficiency. This criterion helps in
gauging whether the regulation is capable for valuably addressing its cause for
establishment or if there is need for overhaul or reform.
Legislative mandate refers to laws that
are established by bodies recognised in the society as authorities in law
making (Baldwin, Cage and Lodge, 2012). In the UK, the law making bodies are
parliament and judiciary through the jurisprudence principles that guide the
practice of law in commonwealth countries (Fortin, 2009). The laws that are set
establish guidelines that should be followed in different fields and the
remedies to be enforced for noncompliance. For instance, the laws on labelling
of food products is precise in its conditions requiring that all required
information is displayed accurately on the packaging of the products in
addition to the requirement that instructions for use and storage are provided.
Failure to adhere to such guidelines could result in monetary fines aimed at
deterring noncompliance. The laws also set out the functions of the regulatory
bodies and limits to their powers (Hutter, 2011). This is done to facilitate
transparency and avoid abuse of power. For instance, the regulator’s actions
may only be restricted to investigation and prosecution while the rest of the
process is left to the judiciary which establishes guilt and metes out
punishment as prescribed in law.
At the EU level, the law making body is
the European Commission (European Commission, 2013). It generates laws which
form the mandate for the operation of EFSA. The law is however capped by the
principle of voluntary adoption among member states. This means that the
legislative mandate for EFSA is limited to coordination of national regulators
and may not have much power where a certain country is reluctant to cooperate
with the agency apart from presenting a dispute at the EC (Zurek, 2012).
Besides, while the national regulators main focus is on enforcement and
ensuring all industry players comply with the rules set, the main focus of the
EFSA is to identify risks to food safety and optimum approaches to guaranteeing
food safety and sustainability (Hanekamp, 2012). It can therefore be said to be
a complementary wing of the national regulatory frameworks dedicated to
scientific research and pre-empting of future risks that would need to be dealt
with from time to time.
The importance of the legislative
mandate is that it dictates the scope of powers of the regulatory agencies and
this may present a limitation where problems outside the scope provided arise.
Collectively, the food regulation in the UK and the EU cover a wide range of
fields that are related to food safety starting with labelling of foods,
preparation of food, safety of ingredients and fitness of use in specific
foods, truthfulness of claims made, provision of usage instructions, regulation
on food additives, restriction on the use of certain chemicals and others
(Forson and Counihan, 2011). It also includes requirements for testing for
harmful chemicals especially where there is need to detect whether certain
agricultural products were grown with undesirable fertilisers or pesticides. In
terms of range and legislative mandate, the UK food regulation regime can be
said to be sound.
In general regulatory practice, it may
be difficult for the legislative bodies to come up with laws that cover all the
areas of action and this may result in situations where a regulator may be
faced with a situation over which their mandate may be imprecise (Alemano,
2013). This situation is not uncommon and often necessitates a creative
interpretation of the law. However, the regulatory body can overcome questions
to its mandate and interpretation of the law by being fully accountable to
democratic institutions which can authenticate their interpretation of the law.
Even though the FSA has not had serious challenges to its mandate, it is a fact
that it is subject to the interpretation of the courts of law regarding the
laws being enforced (Marsden, 2009). Any person with questions on their
authority can therefore easily challenge it in the courts of law and a ruling
given. The availability of mechanisms for accountability is crucial in
regulation as the population gains confidence that they have recourse through
which such bodies can be held to account for abuse and contravention of the law
(Baldwin, Cage and Lodge, 2012). The UK legal system is therefore an important
part of the food regulatory regime where it not only helps in enforcing the law
but also in keeping the body in check. The same applies to the EFSA whose
mandate can be challenged at the European Court of Justice.
A good regulatory regime is one that
uses procedures that are fair, open and accessible to all (Baldwin, Cage and
Lodge, 2012). The principle of natural justice is very crucial to the
regulatory regime where persons suspected of contravening the regulations in
place are granted the opportunity to defend themselves in a fair and
transparent hearing. The procedures and rules to be applied must also be known
to all to encourage compliance. In the UK, the food regulations are ably
contained in the websites for the FSA and DEFRA where guidelines for different
aspects of food regulation are provided (Burke, 2012). In addition to this,
avenues for making enquiries are made both through the internet and through
hotlines provided by the regulatory authorities. This provision of information
helps in educating the players in the economy on the elements that are looked
out for when inspections are done.
The bodies conduct random but frequent
inspections of food items and premises where the foods are manufactured or
offered to the consumers (EFSA, 2013). This random inspection is necessary to
avoid pre-empted compliance which is then followed by periods of noncompliance
which would not be in public interest (Burke, 2012). The inspections are
conducted on different fronts such as for cleanliness where conclusions are
made right away or where products are collected randomly for latter scientific
inspection for the ingredients in them. The public is also provided with an
opportunity to raise complaints against alleged violations upon which
investigative teams are dispatched to investigate matters as inspected.
Once a violation has been cited, the
investigators make a finding and a decision is made after a brief trial
(Rochstein, 2013). This procedure facilitates speedy conclusion of matters and
non-reliance on the judicial processes which may be slow and lengthy. There are
also measures to guarantee fairness as the investigators who make the findings
only report such findings to other officers for decisions to be made.
Nevertheless, this system has been criticised for the apparent likelihood of
bias pitting a party to the dispute as the judge (Burke, 2012). In practice,
however, the findings of the agencies tend to be fair with only a handful of
people opting to pursue further action at the courts of law. The regulatory
regime is structured in a manner that one’s right to fair hearing and justice
are guaranteed with the avenue for seeking redress in the courts of law when
aggrieved. This makes this regulation a good regulation based on this metric.
Where the nature of the matter being
regulated requires certain levels of expertise, it is important that the
regulator be in a position to have experts to make the relevant decisions
(Baldwin, Cage and Lodge, 2012). In the food industry, the expertise required
may be related to the determination of limits for the use of certain substances
in food substances. Regulations related to matters such as prohibition of
certain chemicals in food production or the use of certain additives. Food
production is an intricate process that requires not only the safety of
ingredients to be verified but also a verification of the impact of combining
certain ingredients (Ollinger, 2009). Expert decisions are those that are made
after considering information that the public is not privy to and making a
decision which is in their best interest according to the expert. For
regulation to inspire the levels of confidence needed there needs to be sufficient
expert opinion that is not only effective but also trusted. The only weakness
in the use of expert opinions is that it could result in abuse where powerful
forces may use it to outlaw competing products or influence the experts to
ignore dangers contained in certain products (Baldwin, Cage and Lodge, 2012).
This can however be remedied through the law requiring punishment for acts of
commission or omission that result in the public welfare being endangered.
The EFSA, DEFRA and FSA, are all
equipped with teams of food scientists and food laboratories that are used to
conduct risk assessment experiments as well as inspection of existing products
(Lofstedt, 2013). These are the experts that advise on the food ingredients and
pesticide/fertiliser requirements in food production. The experiments are
continuous and discoveries made intermittently with substances that have
normally been allowable been declared unfit for consumption once evidence is
discovered to the same effect. In terms of expertise, the Food regulation in
the UK can be said to be good.
Efficiency of a regulatory regime can be
measured in terms of input versus output costs; or in terms of the overall
outcome of the regulation (Baldwin, Cage and Lodge, 2012). The input costs may
be easy to determine since the direct cost of regulation can be determined from
the expenses of the regulator. However, the cost in terms of impact on
entrepreneurship may be difficult to quantify. The output may also be difficult
to quantify. For instance, the output of good food regulation is a healthier
public and it would be difficult to put a measure to the same. In most laws,
the regulators are presented with a rough description of their mandates where
the explicit interpretation of what constitutes efficiency is not provided
(Potter, 2012). It is therefore difficult to measure the efficiency of the
regulator. The food regulatory agencies in the UK can therefore not be
explicitly judged based on efficiency.
Measurement on the overall trends in scandals
and the situation getting out of hand may also not be accurate although it can
provide an indicator on whether the regime is being effective. The EFSA was
formed in 2002 in reaction to the numerous food scandals that hit the European
Union in the 1990s and its formation led to the outlawing of many pesticides
and food chemicals (EFSA, 2013). There has been a considerable decline in food
related scandals in the UK and the EU signifying that the regulatory regimes
may actually be effective. The other elements of good regulation such as
accountability can however be used to overcome the lack of measures in this
dimension. One of the bodies that the regulators are accountable for is the UK
parliament which is the main representative of the public (Burke, 2012). They
are able to discern when things go bad in the economy regarding food safety and
demand for more vigilance by the regulators. Besides, the regulators play an
active role by recording the number of incidents recorded and dealt with, a
measure that can be used to determine the trends in the safety of food within
the country.
Based on the five-point criteria, the
food regulation in the UK can be said to be good. It has a sound legislative
mandate and good systems for accountability. The regulators also have
sufficient expertise and an enforcement process that is clear, transparent and
fair which also allows for avenues for appeal for those displeased with the
regulator’s decisions. In terms of efficiency, the general trend has been greater
vigilance in approaches to food safety. However, there is not precise measure
for the same. However, there are sufficient mechanisms for determining trends
and determining whether there is need for further action. Besides, the EU
regulator plays the oversight role of identifying risks and advising remedial
action before actual problems are realised.
Food regulation is very crucial to any
economy as it directly impacts the life and health of the populations. The soundness
of such regulators is therefore crucial as it determines the level of
regulatory effectiveness that can be achieved. In the UK, laws at the UK and EU
platforms are in force within the country and are enforced by three regulatory
bodies namely the Food Standards Agency (FSA), the Department for Environment,
Food and Rural Affairs (DEFRA), and the European Food Safety Authority (EFSA).
These three regulators collectively sum up the food safety regulatory regime in
the UK. Based on the 5-point criteria for assessing good regulation, the food
regulation in the UK can be said to be good and capable of enforcing food
safety in the country. The legislative mandate is firmly established as
characterised by the hundreds of laws that regulate different aspects of food
production and handling. The accountability framework is also sound where any
loopholes in law can ably be sealed through judicial interpretations. The due
process element as characterised by presence of fair and transparent procedures
is good as is the case with efficiency and expertise.
Despite the fact that it is a good
regulation, there may be the need to come up with explicit measures for
determining what can be considered as efficient. There may also be need to
consolidate to consolidate food related laws into less than 5 laws to ensure
that there is clarity in law to facilitate ease of compliance based on thorough
knowledge on relevant laws.
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Baldwin, R., Cage, M., Lodge, M., 2012.
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Bingham, N., Lavau, S., 2012. The object of
regulation: tending the tensions of food safety, Environment and Planning A, 44(7), pp. 1589–1606
Burke, D.C., 2012. There's a long, long trail
a-winding: The complexities of GM foods regulation, a cautionary tale from the
UK. GM Crops & Food, 3(1), pp.
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2013
- 1768
- Fish Labelling Regulations 2013
- 1683
- Specified Products from China (Restriction on First Placing on the
Market) (England) (Amendment) Regulations 2013
- 804
- Animals and Animal Products (Examination for Residues and Maximum
Residue Limits) (Amendment) Regulations 2013
- 466
- Food (Miscellaneous Amendment and Revocation) (England) Regulations 2013
- 264 -
Food Safety (Sampling and Qualifications) (England) Regulations 2013
- 2619
- Materials and Articles in Contact with Food (England) Regulations 2012
- 1742
- Food Hygiene (England) (Amendment) Regulations 2012
- 1155 -
Food Additives (England) (Amendment) and the Extraction of Solvents in
Food (Amendment) (England) Regulations 2012
- 690 -
Authorised Officers (Meat Inspection) (Revocation) (England) Regulations
2012
- 47 -
Specified Products from China (Restriction on First Placing on the Market)
(England) (Amendment) Regulations 2012
- 3012 -
Transfer of Functions (Food) Regulations 2011
- 2945
- Charges for Residues Surveillance (Amendment) Regulations 2011
- 2331
- Weights and Measures (Specified Quantities) (Unwrapped Bread and
Intoxicating Liquor) Order 2011
- 1738 -
Extraction Solvents in Food (Amendment) (England) Regulations 2011
- 1517 -
Plastic Kitchenware (Conditions on Imports from China) (England)
Regulations 2011
- 1135 -
Fruit Juices and Fruit Nectars (England) (Amendment) Regulations 2011
- 881
- Animal By-Products (Enforcement) (England) Regulations 2011
- 452
- Poultrymeat (England) Regulations 2011
- 451 -
Natural Mineral Water, Spring Water and Bottled Drinking Water (England)
(Amendment) Regulations 2011
- 402 -
Food Labelling (Declaration of Allergens) (England) Regulations 2011
- 258
- Food Additives (England) (Amendment) Regulations 2011
- 231
- Plastic Materials and Articles in Contact with Food (England)
(Amendment) Regulations 2011
- 213 -
Food (Jelly Mini-Cups) (Emergency Control) (England) (Revocation)
Regulations 2011
- 136
- Official Feed and Food Controls (England) (Amendment) Regulations 2011
This Page contains a listing of
those EU legal documents relevant to food published in the Official Journal
(OJ) in 2013. It is based on searches of various EU sources - it may not be
complete. The listing is by reverse date of publication in the OJ (i.e. most
recent is at the top of the page). Data for other years is also available: 2012, 2011, 2010, 2009, 2008, 2007, 2006, 2005, 2004, 2003, 2002, 2001, 2000, 1999, 1998, 1997.
Links are provided to a pdf file of the document on the Europa website.
- Commission
Implementing Regulation (EU) No 716/2013 of
25 July 2013 laying down rules for the application of Regulation (EC) No
110/2008 of the European Parliament and of the Council on the definition,
description, presentation, labelling and the protection of geographical
indications of spirit drinks (OJ L201, 26.7.2013,
page 21)
- Commission
Regulation (EU) No 718/2013 of 25 July 2013 amending Regulation
(EC) No 608/2004 concerning the labelling of foods and food ingredients
with added phytosterols, phytosterol esters, phytostanols and/or
phytostanol esters (OJ L201, 26.7.2013, page 49)
- Commission
Implementing Regulation (EU) No 702/2013 of
22 July 2013 on transitional measures for the application of Regulation
(EC) No 882/2004 of the European Parliament and of the Council as regards
the accreditation of official laboratories carrying out official testing
for Trichinella and amending Commission Regulation (EC) No 1162/2009 (OJ L199, 24.7.2013, page 3)
- Commission
Regulation (EU) No 691/2013 of 19 July 2013 amending Regulation
(EC) No 152/2009 as regards methods of sampling and analysis (OJ L197, 20.7.2013, page 1)
- Commission
Regulation (EU) No 668/2013 of 12 July 2013 amending
Annexes II and III to Regulation (EC) No 396/2005 of the European
Parliament and of the Council as regards maximum residue levels for
2,4-DB, dimethomorph, indoxacarb, and pyraclostrobin in or on certain
products (OJ L192, 13.7.2013, page 39)
- Regulation
(EU) No 609/2013 of the European Parliament and of the Council of
12 June 2013 on food intended for infants and young children, food for
special medical purposes, and total diet replacement for weight control
and repealing Council Directive 92/52/EEC, Commission Directives 96/8/EC,
1999/21/EC, 2006/125/EC and 2006/141/EC, Directive 2009/39/EC of the
European Parliament and of the Council and Commission Regulations (EC) No
41/2009 and (EC) No 953/2009 (OJ L181, 29.6.2013,
page 35)
- Commission
Implementing Regulation (EU) No 618/2013 of 26 June 2013 amending
Annex I to Regulation (EC) No 669/2009 implementing Regulation (EC) No
882/2004 of the European Parliament and of the Council as regards the
increased level of official controls on imports of certain feed and food
of non-animal origin (OJ L175, 27.6.2013, page 34)
- Commission
Implementing Decision (2013/327/EU) of 25 June 2013 authorising
the placing on the market of food containing or consisting of genetically
modified oilseed rape Ms8, Rf3 and Ms8 × Rf3, or food and feed produced
from those genetically modified organisms pursuant to Regulation (EC) No
1829/2003 of the European Parliament and of the Council (OJ L175,27.6.2013, page 57)
FSA responsibilities
|
|
Food safety and hygiene
|
FSA UK
|
Labelling (safety, allergy)
|
FSA UK
|
Food law enforcement
|
FSA UK and local authorities
|
Split responsibilities
|
England
|
Wales
|
Scotland
|
Northern Ireland
|
Nutrition and Nutrition labelling
|
Department of Health
|
Welsh Government
|
FSA in Scotland
|
FSA in Northern Ireland
|
Labelling (other)
|
Defra
|
FSA in Wales
|
FSA in Scotland
|
FSA in Northern Ireland
|
Responsibility of other departments
|
England
|
Wales
|
Scotland
|
Northern Ireland
|
Animal welfare
|
Defra
|
Welsh Government
|
Scottish Government
|
Source: FSA, 2013
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