As anyone involved in the business of food preparation, service and retail will tell you, keeping food safety records is important. But when it comes to explaining exactly why they matter, what records should be kept and how they would ultimately be used should something go wrong, many chefs, managers and proprietors are much less confident.
This white paper will provide an introduction to food safety law, summarising the key legal requirements facing every food business operator (FBO), and explain why food safety records really are important. It will also:
explain the key legal terminology, concepts and law enforcement procedures involved in food safety law; highlight the risks – both business and personal – to FBOs
that follow from a food poisoning incident and law enforcers’ subsequent investigations;
look at the way records are kept, assessing the deficiencies common in most paper-based record systems; and
Contents
1. What food safety records are required by law? 2. How does food safety law operate?
3. Who does the law hold responsible for food safety? 4. Where and how does food safety law begin? 5. What is the ‘Due Diligence Defence’?
6. What does ‘all reasonable precautions’ mean in practice?
7. What does ‘all due diligence’ mean in practice? 8. Demonstrating due diligence: problems with the traditional method
9. Demonstrating due diligence: advantages of the modern method
10. Conclusion
Why food safety records matter:
an introduction to UK food law
and the records it requires
1. What food safety records are required by law?
In some industries, UK law is very specific about what records must be kept. HGV drivers, for example, are required to produce standardised tachograph data showing time spent behind the wheel, speed and distance travelled. But while food safety is clearly just as important as road safety, there are no such specific instructions when it comes to record-keeping within the food industry. That’s because there are so many different types of food and food process involved that the law simply cannot be so prescriptive. UK food safety law requires every FBO to carry out a verifiable risk assessment of their own operation, identifying all potential food safety risks and then taking steps to manage them. This approach, which focuses on preventing food safety issues occurring rather than policing them after they have happened, implicitly requires FBOs to keep records of the steps they are taking to prove that they are in compliance with the law. The form and extent of these records will, of course, depend on the operation in question. Any food being held hot for serving must be kept above 63°C, by law, for example, and similarly any chilled food must be kept below 8°C.However, food safety records are not only important as part of this programme of inspection and prevention. When things do go wrong, people get sick and/or law enforcement subsequently becomes necessary, food safety records become crucially important, because only bona fide records of compliance with a verifiable risk assessment will be an
2. How does food safety law operate?
UK food law operates on the basis of the ‘Due Diligence Defence’ system.
Every FBO – the food business operator is defined as the owner or ‘controlling mind’ of the business – is required to conduct a formal and technically verifiable food safety risk assessment of their food production, storage and distribution operations (which may include contracting this activity, but not the legal responsibility for it, to a third-party expert). The food safety risk assessment system of choice is HACCP (Hazard Analysis and Critical Control Point). Any other risk assessment system employed must embrace the principles of HACCP. (There are many commercial risk assessment systems, most of which relate to operator and environmental safety. HACCP is unique among these in being specific to the food industry and in focusing upon consumer safety.)
All critical control points identified in every HACCP plan must be controlled by verifiable control measures, which must be clearly defined in operational procedures.
Records must be kept, in some form, of the diligent
implementation of every identified food safety critical control point (CCP), and securely stored for future reference and use in Court. Falsified records could be regarded as an offence of organizational fraud.
Without appropriate and accurate records there would be no method of proving ‘due diligence’ i.e. that critical food safety controls had been identified and implemented.
Malcolm Kane JP MSt BSc
is an independent food safety consultant. During
a long career in food safety management, he has worked for Unilever, Ross
Frozen Foods, Dalgety Spillers and Waitrose. As Head of Food Safety, Supplier
Approval and Audit for Sainsbury’s supermarkets for 20 years, he was at the
leading edge of HACCP implementation in the UK and European food industry
and pioneered the adoption of HACCP systems by the supermarket’s suppliers.
As advisor to the UK Department of Health at the CODEX Alimentarius
Commission, he helped to develop the global standard for HACCP systems. His
current focus is on food crime and he holds a Master’s Degree from Cambridge
University’s Institute of Criminology.
3. Who does the law hold responsible for food
safety?
Every food handler and manager, right up to and including the FBO, is generally responsible for food safety. Everyone is therefore responsible for washing their hands after going to the toilet, for example. Every individual can be held legally responsible for those specific activities that fall within their duties and job responsibilities.
Specifically, the FBO is responsible for ensuring a bona fide HACCP plan is prepared and implemented. The FBO is responsible for ensuring that suitable facilities (including training) and equipment are provided to all operators to enable them to produce clean and safe food, while all operators are responsible for using such equipment properly, keeping it clean properly, maintaining proper records as required and reporting to line management if there are any problems.
4. Where and how does food safety law begin?
Food safety law begins with registration, being the sole responsibility of the FBO.Every new food business in the UK must be registered with their local Environmental Health Department, prior to commencement of the business’ food production activities. The local EHO will provide a specific registration form for this purpose.
A local EHO, who will be a food safety specialist, will then arrange to visit the new business’ production location, inspect and assess their compliance with food safety law and good practice requirements, and advise the owners accordingly.
With food service operators, this usually includes discussing ‘Safer Food Better Business’ (SFBB) documents, which are freely available from the Food Standards Agency (www. food.gov.uk/business-industry/caterers/sfbb and www. sfbbtraining.co.uk), and which essentially simplify and summarise all the legal food safety requirements, with examples of basic ‘how to’ paper records and online food hygiene training.
Full compliance with SFBB will, in principle, provide for a basic ‘Due Diligence Defence’.
5. What is the ‘Due Diligence Defence’?
‘Due diligence’ is shorthand for ‘all reasonable precautions and all due diligence’.
When EHOs become aware of a food poisoning outbreak in a particular population area, there will often be several potential food service sources that may all need to be investigated. An FBO who comes under investigation in this way has to be in a position to present a ‘Due Diligence Defence’ to an investigating EHO and, ultimately the Court, if only to be eliminated from further enquiries. This requires the FBO to be able to prove to the EHO and/or Court’s satisfaction that all key food safety elements in EU/UK food law have been diligently identified and implemented.
Being able to produce clear proof of due diligence should persuade investigators that the business in question is unlikely to have been the source of the food poisoning outbreak. Furthermore, in the event that a clear link does exist, proof of due diligence enables the defence to provide evidence and argue that the FBO did everything reasonably possible to avoid food poisoning, implying that some unforeseeable or extreme chance issue may have been the cause. Successfully arguing a due diligence defence can be very difficult, and good records, such as temperature records, are the most likely to be helpful in convincing the Court or at least mitigating the FBO’s position.
In either case, it is clear that credible records are essential. It is practically impossible to present an acceptable due diligence defence in Court without presenting evidence that, prior to the alleged offence, a HACCP-based risk assessment has been completed and then incorporated into a bona fide quality management system (sometime abbreviated to QMS), and that this has in turn been diligently employed. Food safety records are a de facto legal requirement for this. In summary, the Due Diligence Defence amounts to ‘demonstrating that all reasonable precautions have been taken and that all due diligence has been applied’.
Civil liability vs. criminal liability
In the UK legal system for food safety control, it is possible, and not infrequently the case, for an FBO to accept responsibility for having produced food which has been proven to be the cause of food poisoning, to acknowledge the fact, and even offer financial compensation to a victim, yet still elect to go to a Criminal Court and plead not guilty to a charge of causing it.
This may seem incongruous at first sight, but is actually a very important separation of civil liability for causing injury, from criminal liability for being culpably negligent.
Food safety law is criminal law. ‘Culpable negligence’ or ‘recklessness’ are specific levels of judicial sentencing seriousness, ultimately carrying a maximum imprisonment of two years. Good records can be a strong evidential support to any FBO faced with an unavoidable civil liability, but trying to defend against a charge of criminal liability.
EHOs can and do prosecute FBOs through the Magistrates’ and Crown Courts on the criminal basis of failure to meet legally required food hygiene and safety requirements. This would invariably be based on demonstrable evidence of underprocessing, grossly poor sanitation, infestation and/or vermin activity, raw meat to cooked meat cross-contamination, and ‘reasonable association’ of current food poisoning incidents with any specific food service outlet. For example:
September 2013; Coventry Crown Court; The owner of a Coventry Restaurant and Takeaway was imprisoned for 27 weeks for multiple breaches of food safety regulations, and his business partner given a suspended sentence of six months imprisonment and ordered to carry out 180 hours of unpaid work in the community. The restaurant was permanently closed.
Prosecution action such as this usually follows a sequence of advice and warnings given by EHOs, both verbally and in writing. This is their ‘enforcement pyramid’, and starts with ‘friendly’ informal verbal advice, followed by Improvement Notices, moving through Condemnation Orders and up to Closure and Prohibition Orders, including criminal prosecution (as in this example) enforced through the Criminal Courts. Good records can be used in defence mitigation arguments to demonstrate that the detail of the early advice and Improvement notices has actually been implemented by the FBO.
There is a recent marked trend for EHOs to enforce Closure Orders at an earlier stage, a trend that recent financial and resource cutbacks may only serve to maintain.
The ‘Enforcement Pyramid’: this diagram shows the range of sanctions typically employed by EHOs, from the least severe at the bottom to the most severe at the top. This is not an official sequence that all EHOs must follow – officers will not necessarily start at the bottom and can decide to institute criminal
proceedings at any stage – but instead serves as a general guide to the steps that those enforcing the law are likely to take.
Licence Revocation Licence Suspension Criminal Penalty Enforcement Notices Civil Penalty Warning Letter
6. What does ‘all reasonable precautions’ mean
in practice?
‘All reasonable precautions’ refers to HACCP and the quality management system.
Reasonable precautions simply amount to the management process of identifying all the food safety critical stages of food production, storage and distribution; identifying suitable control measures to adequately prevent the risk of food safety failures; then putting in place appropriate management control procedures to ensure they effectively happen.
Reasonable precautions can be satisfactorily demonstrated by producing satisfactory HACCP documentation and QMS documentation. There is an established format for all this documentation, broadly accepted within the food industry and endorsed by the Food Standards Agency (see www.food. gov.uk) and it is obviously advisable for food businesses to follow accepted formats, especially for presenting evidence in Court.
SME food service businesses should essentially be complying with ‘all reasonable precautions’ if they have set up SFBB to the satisfaction of their local EHO.
7. What does ‘all due diligence’ mean in
practice?
‘All due diligence’ means operating those ‘all reasonable precautions’ explained above – in other words, actually carrying out the control measures and management procedures that have been set out in the HACCP and QMS documentation… i.e. ‘doing it’!
‘All due diligence’ can only be practically demonstrated by producing bona fide records of implementation in some format acceptable under scrutiny to a food safety law enforcement officer (i.e. an EHO) and, ultimately, a Court of Law.
If, for example, the HACCP analysis identifies that the safety of a particular food requires appropriate temperature control at one or more stages of production, storage and distribution, then presenting corresponding temperature records
consistent with the HACCP risk assessment will be the only practically acceptable means of demonstrating due diligence to the satisfaction of the local EHO and a Criminal Court.
8. Demonstrating due diligence: problems with
the traditional method
The traditional method of demonstrating due diligence in food safety has been by presenting the original paper-based records, complete with smudges and fingerprints, that were taken at the time of the relevant food service operation. In principle this is satisfactory.
In practice, however, a great number of difficulties exist, all of which cast doubt on the ability of paper-based records to adequately prove due diligence:
Are the records complete and free from any gaps? If not, the value of the records is compromised proportionate to the deficiencies.
Are they signed properly? Are they dated properly? If not, the value of all the records is diminished proportionate to the deficiencies.
Are the records credible? If they are too perfect, a Court may not believe they are bona fide in the face of contrary evidence (such as victims of food poisoning).
Do they pass the ‘Continuity of Evidence’ test? Specifically:
– Are they signed by the same person who is recorded on the duty roster for that day?
– Are they signed by someone recorded as being on holiday that day, or off sick? If so, why?
– Have the current records been kept in a properly locked cabinet in a locked facility at all times? Are the keyholders identified?
– Has anyone been in the habit of taking records home to do some ‘work’ with them? If so, who and why? Was this authorised and verified?
– Is it possible anyone may have tampered with the records?
Are the records otherwise credible? Specifically: – Have the (temperature) probes been checked for
accuracy recently?
– How old are the probes and other equipment? – Have they been serviced regularly?
– Have they been cross-checked and their accuracy verified by an independent laboratory?
– Are the batteries changed regularly, or just when someone notices they are flat?
– Who reads the records and takes responsibility for them?
– Who double-checks them later? – Who summarises them?
– Are there any suspicious trends – between morning and evening, for example?
How long are the back records stored for? Are they securely stored in a locked facility?
Are the records practically possible – is it believable that staff have been carrying out the checks recorded? – What is the labour-time cost per reading?
– Has anyone checked the practicality of doing the job and taking records at the same time?
– Are staff, whether actively or not, being discouraged or diverted from carrying out proper readings?
– Are there any de facto short-cuts in operation? Has this been checked?
Some major food poisoning cases have involved EHO enforcement officers extracting paper records of several hundreds of individual documentary files, occupying possibly a dozen box files, scrutinized retrospectively for gaps, weaknesses, inconsistencies and, worse, actual evidence of non-compliance with no accompanying corrective action.
Not only does such evidence reflect upon the failures of the business, they also reflect upon the culpable negligence of the FBO, and have been successfully used in pursuit of this. Even framed certificates of attending a food hygiene course have been removed from the FBO’s office wall to be used in Court as evidence of fore-knowledge of the food safety issue involved, for the purpose of reinforcing the seriousness of the offence at the sentencing stage.
Few businesses, large or small, find their paper documentary records are adequate to this degree of scrutiny. Such scrutiny invariably follows from a food poisoning incident, and the position of the FBO involved can be precariously exposed by typical paper records.
It is for this reason that many are now looking towards new technology that offers more reliable, automated methods of record creation, analysis, actioning, summary and storage.
9. Demonstrating due diligence: advantages of
the modern method
New technology, linking wireless sensors, temperature probes and data loggers together with software designed to manage the collection, display and secure storage of food safety data, is now available to the food industry.
In contrast to the deficiencies highlighted in paper-based records, there are numerous advantages to the use of secure and reliable instrumental methods of data capture and digitized data storage.
Programmable alarms, automatically triggered by late or missing readings, can prompt corrective management action and secure the integrity of the records as a whole. Data integrity can be protected because there will be no method for anyone to falsify any data entry at or after any data read-point in time.
Data can be made unchangeable and secure once recorded. Tamper-evidence can be built in to recorded data after the initial event, and attempted data interference can be identified and alarmed with separate management reporting systems.
The ‘Continuity of Evidence’ test can be met by pre-assigned operator PIN identification at the start of all readings and throughout the reading procedure.
In-built calibration and verification systems can confirm the credibility of every reading, with fixed date and time data records.
Servicing and verification schedules can be
pre-programmed and alarmed, and can be made incapable of being amended post-installation.
Battery viability checks can be continuous and
replacements can be well within the period of battery life. The labour-time cost of each reading can be significantly lower than the equivalent manual systems, making it more feasible to include proper checks in the work schedule. Furthermore, when connected to the internet and cloud-based data storage, a digital food safety monitoring system can offer further advantages:
Data from multiple sites that are geographically separate can be easily collated and viewed centrally from one location.
All data can be accessed remotely from any location and viewed in real time, encouraging a more proactive approach to risk management.
By replacing regular site visits, remote multi-site monitoring can further reduce the labour-time cost of managers supervising food safety.
Cloud back-up can provide secure off-site storage of food safety records and effectively infinite data storage capacity.
Beyond these advantages when it comes to proving due diligence, a digital system offers the additional benefit of making detailed data on the timing and extent of staff actions, as well as the status of stock and infrastructure, available for analysis, aiding the process optimization and other business objectives.
10. Conclusion
This white paper has given a basic outline of UK food law and how it is enforced, emphasising the vital role that food safety records play in this process.
Given the paramount importance of adequate food safety records – both in enforcing the law and, from the FBO’s point of view, in providing a legal defence – the weaknesses of traditional pen-and-paper record-keeping and the strengths of a modern, automated approach outlined above cannot be ignored.
Food safety records are the FBO’s only practical means of demonstrating due diligence, satisfying the requirements of the law and defending their business, their career and their reputation. A technological approach to food safety, combining instrumental data capture, storage and analysis with programmed management alarms and reports during operations, and summary management reports for concise compliance reporting, is the surest method of providing this protection.
