Clandestines and food contamination presentation - Autumn 2015

Clandestines and food contamination– September 2015

08/09/2015Alex Schofield

Food Standards Agency

© 2015 Food Standards Agency

• Public health risks.

• Consignments suspected of contamination entering the food chain.

• Splitting of cargos and multiple destinations.

• Costly destruction/diversion procedure for smaller businesses.

• Intra-EU trade and international hauliers.

Key considerations


Risk Assessment at the border


Legislation in scopeGeneral

• Food Safety Act 1990

• EC Regulation No 178/2002

Food Hygiene

• EC Regulation No 852/2004

• Food Safety and Hygiene (England) Regulations 2013

Statutory Instruments

EU wide legislation

Underpinning framework

European and domestic Food hygiene policy

Food Safety Act 1990

EC Regulation No 178/2002EC Regulation No 852/2004

Food Safety and Hygiene Regulations (England) 2013(and as amended 2014)


Risk assessment and freight security – common hiding places

• Lorries are only as secure as their weakest point.

• What steps have been taken to secure ALL of these common hiding places?

• Is there an internal [company] dataset on these checks and when/where they took place?

• Tankers, soft sided or hard sided vehicles and refrigerated trailers – principles or risk assessment and vehicle

security remain the same.


Food Safety Act 1990 – Main Provisions Business perspective:

• Section 9 gives Authorised Officers powers to inspect, seize and condemn food suspected of

not complying with food safety requirements.

• Section 14 makes it an offence to sell food which is not of the 'nature or substance or quality'

demanded by the purchaser.

• Section 20 gives a defence where the offence is due to the act of another person, and allows

enforcement authorities to prosecute that other person.

• Section 21 gives a defence if defendants can prove that they took all reasonable precautions

and exercised all due diligence to avoid committing an offence.

Enforcement perspective:

• Section 32 sets out authorised officer powers to enter premises and explains what they can

do while on premises to enforce the Act. It makes unauthorised disclosure of information

obtained when using such powers an offence.


EC Regulation No 852/2004Under this legislation,

• Article 1 (a) - Primary responsibility for food safety rests with the Food Business Operator.

• Article 1 (g) - Imported foods should be of at least the same hygiene standard as food

produced in the Community or are of an equivalent standard.

Chapter IV of Annex II:

• containers used for transporting foodstuffs are to be kept clean and maintained in good

repair and condition to protect food from contamination.

• containers used for transporting anything in addition to foodstuffs or for transporting

different foodstuffs at the same time, there is, where necessary, to be effective separation of

products.


EC Regulation No 178/2002• Articles 14, 18 and 19 cover food safety, traceability and the need to

notify, withdraw and/or recall products not meeting food safety requirements.

• Article 14 (outlines Food safety requirements)

• Article 18 (outlines traceability requirements)

• Article 19 (outlines the withdrawal, recall and notification procedure)

• Consultation in July 2005. European Commission guidance was resulting in disproportionate

costs to the food industry. Amended national guidance following the consultation.

• European guidance classifies traceability in two categories, - legal requirements and best

practice. Some best practices could result in additional costs to food industry. The new FSA

guidance notes have been developed to address this.

• This approach (and new guidance notes) has been agreed with the European Commission.


EC Regulation No 178/2002Article 14

• Prohibits food being placed on the market if it is unsafe.

• It is deemed to be unsafe if it is considered to be:

a) injurious to health; or

b) unfit for human consumption.

• Under Article 14 (5), food can be rendered unfit for human consumption by reason of contamination:

In determining whether any food is unfit for human consumption, regard shall be had to whether the food

is unacceptable for human consumption according to its intended use, for reasons of contamination,

whether by extraneous matter or otherwise, or through putrefaction, deterioration or decay.

• Article 14(6) provides that if part of a batch, lot or consignment is unsafe, then the whole batch must

also be considered unsafe unless a detailed assessment shows that there is no evidence for this.

• Unsafe food is subject to the withdrawal, recall and notification requirements of Article 19.


Cost of withdrawalsSudan I – banned food dye [red] in chilli powder, pizza and table sauces

• Total of 580 products from various companies withdrawn from sale between 2003-2005.

• The recall from the UK alone cost the food industry £100m ($145m) with related products also having been

shipped to India and Canada.

- Sudan I Review July 2007

Dioxins in Irish Pork and beef – international recall of Irish meat products during 2008

• Investigations revealed that animal feed had been polluted with toxic Dioxin chemicals which accumulated in

pork, exceeding the EU recommended limit 200 times.

• Irish meat industry at time exported approximately 50% of all pork products.

• To date , cost Irish taxpayers in excess of €100 million from the financial assistance made available to industry.

• In addition, the cost to industry of providing contingency supplies to their customers, the costs of lost

business, and the consequent damage to reputations.

- Irish Dioxins incident Review December 2009


Food Safety and Hygiene (England) Regulations 2013

• Consolidates the General Food Hygiene Regulations 2004 and the Food Hygiene (England)

Regulations 2006.

• Came into force December 2013.

• Regulation 12 outlines the principles for defence of due diligence.

• Regulation 19 outlines the offences and penalties for contraventions of EC Regulation No

178/2002.


Scenario• You are driving a lorry and importing food through the border at Calais - a consignment of

chocolate breads from France (intra-EU).

• Following a thermal image check (PMMWI) of your vehicle, UKBF officers have informed you

that illegal clandestine entrants have been found in the trailer.

• Most of the protective packaging on the consignment remains intact but discarded clothing,

crushed boxes and water bottles have been found next to the food.

• Some (but not all) of the pallets are visibly damaged and have been opened.

From a food safety perspective, what actions should you take as the haulier?


In this scenarioIf subsequently destroyed,

• Food business (haulier/consignee) to pay the destruction costs.

• Keep a record and capture information on the case.

• Update or keep a list of clandestine checks on a company vehicle safety checklist.

• Note vulnerable areas or review vehicle security.

• Speak to their trade body, is guidance available for members? Or does the body hold a database?

If subsequently placed on the market,

• What checks did the company take to check the food was safe despite clandestine detection? [to demonstrate

due diligence]

• Local Authority to decide what offences under food law have been committed.

• Subsequently who to prosecute – haulier, consignee or both.

• If the haulier importing the food is independent from the business receiving the consignment in the UK, then

the haulier itself is a food business and potentially liable for the offence (because the transaction from haulier

to consignee is a placing on the market for the purposes of EC Regulation No 178/2002).

• As the consignee, it would not be reasonable, in these circumstances, to rely on checks by the haulier before

placing food on the market.


Points for this scenario• The case relies on whether the part of the consignment released onto the market is compliant with

food law. If the food is proven safe, no offence is committed.

• If any food is found to be unfit for human consumption or injurious to health, there will be one or

more offences.

• Considering the food business’s knowledge (either haulier or consignee), it would be difficult to run

a successful due diligence defence against a prosecuting enforcement authority.

• The haulier may have taken reasonable precautions but in the circumstances, it is unlikely that the

court would consider it reasonable for the consignee to rely on checks carried out by the haulier if

clandestines were detected during border checks.

• There are significant commercial considerations and reputational risks associated (e.g. if a

member of an assurance scheme or as an Authorised Economic Operator (AEO), consider the

implications on other members and your membership/status).

• Other associated public health risks.


Role of government with clandestines and foodWider government public health services

• Informing businesses when clandestines have been detected amongst food consignments.

• Prosecuting food businesses committing offences (e.g. placing food in contravention to

Article 14 of EC Regulation No 178/2002).

• Joining up with other specialist government services to provide single coherent advice.

• Timely communications and reporting on food incidents.

• Sharing information or intelligence with businesses.

• Providing advice to food businesses.

• Working with stakeholders to improve.

FSA Role

• Clandestine detections in food are treated as Food Incidents.

• Work with stakeholders to manage Food Incidents.

• Engaging trade bodies/industry in subsequent reviews of policy.

• Develop feedback loops with industry/trade bodies and hauliers (and other stakeholders).

• Effective policymaking should help compliant food businesses to thrive.


Recommended guidance• Food Safety and Hygiene (England) Regulations 2013:

http://www.legislation.gov.uk/uksi/2013/2996/made/data.pdf

• Guidance Notes for Food Business Operators on Food Safety, Traceability, Product Withdrawal and Recall

(EC Regulation No 178/2002)

http://www.food.gov.uk/sites/default/files/multimedia/pdfs/fsa1782002guidance.pdf

• Guidance document on the implementation of certain provisions of Regulation (EC) No 852/2004 on the

hygiene of foodstuffs:

http://ec.europa.eu/food/food/biosafety/hygienelegislation/guidance_doc_852-2004_en.pdf

• Civil Penalty Code of Practice: prevention of clandestine entrants (last updated July 2015):

https://www.gov.uk/government/publications/civil-penalty-code-of-practice-prevention-of-clandestine-entrants

• SOCA (Serious Organised Crime Agency) information booklet on lorry crime prevention:

http://www.trucker.de/fm/4774/Lorry%20Crime%20Prevention%20Booklet%20June%202010.pdf

• Gov.uk pages on securing vehicles:

https://www.gov.uk/guidance/secure-your-vehicle-to-help-stop-illegal-immigration

• Copies of the legislation available online





http://ec.europa.eu/food/food/biosafety/hygienelegislation/guidance_doc_852-2004_en.pdf







Suggested best practice• Secure all vulnerable points on the vehicle.

• Consider Civil Penalty Accreditation.

• Consider the Home Office Code of Practice on the Prevention of Clandestine Entry.

• Build intelligence internally. Record clandestine checks on a company vehicle safety checklist and benchmark.

Consider alternative routes above a threshold limit.

• When illegal clandestine entrants have been detected, keep a record.

• Report suspicious activity at borders to relevant authorities.

• Share appropriate information with Central Government Departments to support policymaking.

• Food.gov.uk – Food hygiene information pages.

• Industry guidance for food manufacturers - BRC Global Standards (BRC Food Safety Standard).

• If you are a member of a trade body, consider your network - perhaps encourage the development of guidance

for members?

• As the central food authority, we want to integrate with the biggest and smallest trade associations. This issue

is not just about issuing guidance, messages and posters on vehicle security, messages must be visible to all

food businesses in the supply chain from other European Member States.

• Encouraging hauliers to read, sign and accept company policy on vehicle security measures.


Thank you

Alex Schofield

Senior Policy Advisor

Food Standards Agency

[email protected]

Clandestines and food contamination presentation - Autumn 2015

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Transcript of Clandestines and food contamination presentation - Autumn 2015