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Saturday 17 June 2017

An analysis of the food regulation regime in the United Kingdom (UK)

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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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
2012
  • 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
2011
  • 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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