Board meeting Minutes: 13 October 2005

Thursday 15 December 2005

Minutes of the open board meeting, 13 October 2005, Hilton Hotel, Belfast

Present:
Dame Deirdre Hutton, Chair
Julia Unwin, Deputy Chair
Sati Ariyanayagam
Richard Ayre
Maureen Edmondson
Michael Gibson
Ann Hemingway
Iain MacDonald
Graeme Millar
Christopher Pomfret
Sandra Walbran
Nelisha Wickremasinghe

Officials attending:
Jon Bell - Chief Executive
Joy Whinney, Director of FSA Wales (item 4a only)
David Dunleavy, Director of Legal Services (item 4a only)
Judith Hilton, Head of Microbiological Safety Division (item 4a only)
Steve Wearne, Head of Strategy & Regulation Division (items 5 & 6 only)
David Statham, Director of Enforcement (item 6 only)
Rosemary Hignett, Head of Nutrition Division (item 7 only)
Keith Gregory, Board Secretary
Nick Carson, Board Secretariat

Others attending:
Professor Alan Jackson, Chair of the Scientific Advisory Committee on Nutrition

Chair's Introduction

1. The Chair welcomed all observers attending the open Board meeting. The Chair expressed the sadness that she and other Board members had felt at learning of the death of young Mason Jones as a result of the E.coli outbreak in Wales and extended their sympathy to his family at this difficult time.

2. The Chair invited the Deputy Chair to introduce the meeting. The Deputy Chair reminded those attending the meeting and watching the webcast that the FSA Board discussed policy issues at its open meetings to meet its commitment to transparency and accessibility. There would be an opportunity for questions immediately after the formal session and those watching the webcast could also send questions to the Board.

3. The Chair noted that apologies had been received from Valerie Howarth (who had parliamentary business in the House of Lords) and Chrissie Dunn (who was unwell) and reminded Board members of their obligation to declare interests before discussion of relevant items.

4. There were no items raised for discussion under Any Other Business.

Item 1 - Minutes of the Meeting on 15 September 2005, Four Seasons Hotel, London
(FSA 05/10/01)

5. The Board agreed the Minutes of the meeting held on 15 September 2005 at the Four Seasons Hotel, London, as an accurate record.

Item 2 - Actions Arising

6. In considering matters arising and the table of follow up actions, the following issues were raised:

Index 267, p. 20: The Chair advised Board members that the note they had requested on the actions taken by other EU Food Safety Authorities to recall and withdraw products from the market would be covered in the update planned for the December Board meeting.

Index 263, p. 20: The Chair advised Board members that the note they had requested on foodborne disease trends in other members states would be circulated to them by the end of October.

7. In response to a question from one Board member, the Chief Executive confirmed that the expected date for the change from the OTM rule to BSE testing was still 7 November.

Salt Campaign Launch

8. The Chair informed Board members that on 10 October, she had hosted a reception at the FSA's headquarters in London to launch the second phase of the FSA's salt campaign. Around 100 people had attended, including senior representatives of the major food retailers, food manufacturers and NGOs . The reception had featured short speeches by Caroline Flint MP (Parliamentary Under-Secretary (Public Health)), Gavin Neath, (Chairman of Unilever), Professor Peter Coppelman (Royal College of Physicians and a member of SACN ) and Fay Mansell (Women's Institute).

9. Attendees had been shown the new television and poster advertising and had been given packs of campaign supporting material, including a 'saltometer' - a shopper's guide to gauge how much salt is in the food they buy. Reaction to the campaign had been positive and the evening had proved very successful. The campaign proper had begun with the television advertising on the evening of Monday 10 October. Poster and press advertising had also started and advertising would run until late November.

In-store campaign support work with Sainsbury's, Asda and Tesco had commenced and all the funded campaign enhancement projects with the FSA's inner core partners (British Heart Foundation, Blood Pressure Association, CASH , Age Concern, Stroke Association, British Dietetic Association and the Women's Institute) were well underway. The special feature with the Sun newspaper had been launched on Tuesday 11 October and would be followed up on 13, 18 and 20 October. Finally, 30 million Heinz tins carrying the special Check out my salt level! message would appear on supermarket shelves that week.

10. Several Board members congratulated the FSA on the campaign but one raised a concern about media reports that a major company had chosen to abandon its salt reduction activities. The Chair advised Board members that the company concerned had agreed to meet FSA officials to clarify its position.

Director of Communications

11. The Chair informed Board members that the FSA's Director of Communications, Neil Martinson, would shortly be leaving the FSA. He had been with the FSA since its first year and would be very much missed.

12. The Deputy Chair noted that Neil Martinson had played a significant part in helping to shape the FSA's way of operating in an open and independent way. He had enabled the former Chair, herself and the current Chair to be outward looking and to engage properly with stakeholders, and she wished to place on record the FSA's gratitude for his valuable contribution. The professionalism of the FSA communications function, and its recent successes were a tribute to his work.

EU Platform Event

13. The Chair informed Board members that, on the morning of 21 September, the FSA, with the Department of Health, had hosted the third meeting of the European Commission's Platform for Action on Diet, Physical Activity and Health in London. The Platform, which had been launched in March 2005, was a major Commission initiative primarily aimed at stimulating non-regulatory actions to tackle obesity. It brought together stakeholders from the food and advertising industries, consumer groups and public health NGOs, to urge them to make commitments for action in the relevant areas. These commitments had been made public in an online database, which was intended to allow stakeholders to share examples of good practice, and to monitor the progress made by individual Platform members.

14. Following the Platform meeting, the FSA had hosted an afternoon session focused on reducing the levels of fat, salt and sugar in processed foods. The session had been chaired by the Chief Executive and had been attended by a number of Board members, representatives from industry and the Director of Consumer Choice and Dietary Health (Gill Fine). Representatives from the European Commission had been impressed with the collaborative approach the FSA had taken with industry to achieve salt reductions. A number of workshops had been held, which considered what steps could be taken to achieve similar reductions in the case of fats and sugars, and by addressing portion sizes and the catering sector. Each of the workshops had identified some key issues to be considered as the work is taken forward, including some practical suggestions that Platform Members might begin to put into action. A full record of the meeting would be made available on the Commission's website shortly.

15. One Board member noted that the Director of Consumer Choice and Dietary Health and the Heinz representative had demonstrated very effectively how well the FSA and industry could work together. Some good comments had been made in the workshop and overall it had proved to be a good event. Another Board member reported that he had taken part in another working group and had felt less positive about the event which he thought was a missed opportunity. He recognised, however, that a number of people attending from other member states had seemed positive about the event.

Item 4 - Chief Executive's Report

'Sunset Yellow' Update

16. The Chief Executive reminded Board members that he had provided information at the September meeting on the discovery of Sudan I as a by-product of the manufacturing process for the permitted food colour Sunset Yellow. At that meeting, he had reported that the specification for food colours, as set out in Commission Directive 94/45/EC, allowed for up to 5% subsidiary colouring matter to be present in a number of food colours but did not specify what substances these may or may not be. The presence of Sudan I in Sunset Yellow at low levels was therefore currently permitted under this legislation. FSA officials had attended a meeting of the European Commission's Standing Committee on the Food Chain and Animal Health on 20 September and had requested that an amendment be made to the specification for Sunset Yellow so that the presence of Sudan I, even at low levels, was not acceptable.

17. The European Commission and other member states had welcomed this proposal, and the Commission had agreed to draft an appropriate amendment to exclude Sudan I from Sunset Yellow, which would come to a meeting of the Standing Committee in the near future. The timing was dependent on the Commission, but it was hoped that this could be done within the next few months. Although no details of the possible limit for Sudan I had been agreed, it was likely to be a numerical limit requiring Sudan I to be below 0.5 or 1 part per million (ppm), depending on the limit of detection that is adopted for the HPLC detection method. Such a level would allow member states, manufacturers and third countries to operate a positive release system and ensure that products met the specification. In the meantime, manufacturers of Sunset Yellow had agreed to take appropriate steps to control the problem, firstly by operating a positive release system to keep levels of Sudan I to below 0.5 ppm, and in the longer term to modify their manufacturing processes to prevent the occurrence of Sudan I in the final product.

18. One Board member asked whether other types of Sudan, such as Sudan IV, could occur as part of the manufacturing process. The Chief Executive advised Board members that nothing else of concern had been detected, but the FSA would keep a watching brief on this, as would local authorities.

Progress on Over Thirty Month (OTM) rule change

19. The Chief Executive advised Board members that negotiations had been taking place in Brussels on changing the age at which vertebral column was required to be removed as SRM from meat from beef animals. This was currently set at 12 months in the other Member States. Up to now, in the UK removal of vertebral column had been required only from animals aged over 30 months. This issue had been debated in Brussels and agreement had been reached to raise the age at EU level from 12 to 24 months. Although this decision does not currently affect the age limit in the UK, it is probable the UK would need to come into line with the 24 month age limit when the restrictions on UK beef exports were lifted. The Spongiform Encephalopathy Advisory Committee (SEAC) had advised that the risk posed by the vertebral column of animals under 30 months was minimal.

20. Current EU legislation allowed vertebral column in animals aged between 24 and 30 months to be removed in licensed cutting plants or authorised butchers' shops. For animals older than this, vertebral column could only be removed in specifically licensed cutting plants supervised by the Meat Hygiene Service. . Should the Government decide to allow the removal of vertebral column in butchers' shops, it was the FSA's view that it made sense for local authorities to oversee this practice in such premises. The Department for Environment, Food and Rural Affairs (Defra) was currently consulting on where vertebral column from 24-30 month animals should be removed as part of a package of measures to bring the UK's legislation into line with the rest of Europe.

21. One Board member asked why Defra was in the lead and not the FSA. The Chief Executive explained that Defra was leading the consultation as this issue was one of a package of measures associated with lifting the export ban. The views of the FSA were being taken into account and the outcome of the consultation would be brought to the Board.
Action: Alan Harvey

Visit to Bulgaria

22. The Chief Executive informed Board members that he had recently visited Bulgaria as part of a programme of visits to member states and accession countries in Eastern Europe. The purpose of the visit had been to ascertain the state of readiness for accession and establish what help and assistance the UK could offer. Bulgaria had a small population of 7.5 million, of which 3 million lived in the environs of Sofia. Many farms were very small, some keeping only 2 or 3 animals. This presented challenges for inspection. Efforts to meet the accession criterion for meat processing were being co-ordinated by the relevant trade organisation and good progress was being made. However, the dairy sector had further to go. The equipment in official laboratories was being modernised, but a number of those laboratories had experienced problems achieving accreditation.

The Chief Executive had offered assistance and the FSA had since spoken to UKAS and some UK private sector laboratories about what help might be offered. He had also invited a Bulgarian representative to attend the next Heads of EU Food Agencies meeting in London in November. Overall, Bulgaria appeared to be approaching accession in a positive way, but still had a way to go to reach the required standards.

Item 4a - E.Coli (FSA 05/10/08)

[Prior to the discussion of this item Michael Gibson declared an interest as a butcher and Sandra Walbran declared an interest as a local authority environmental health officer, although not currently practising as such. The Chair considered that these were not material conflicts of interest and that Michael Gibson and Sandra Walbran should participate in the discussion and determination of this issue.]

23. The Chair welcomed Joy Whinney (Director of FSA Wales), Judith Hilton (Head of Microbiological Safety Division) and David Dunleavy (Director of Legal Services) to the table.

24. The Chair advised Board members that the outbreak of E. coli O157 in South Wales was the most serious outbreak of foodborne disease that had occurred since the outbreak in Lanarkshire in 1996/97 when 17 people had died. The local public health services had detected the outbreak, identified an epidemiological link between cooked meats supplied to schools and cases of illness, and acted to prevent further cases. FSA Wales had played a major part in this process and the Chair noted the Board's appreciation of the very hard work and long hours that FSA Wales staff had put in during the last three weeks. She also noted the support that had been provided by the FSA's London HQ. A small team from the Incidents Branch and Communications Division had been sent to Wales to provide practical support during the time of the peak workload and other assistance was being provided as requested. The FSA had taken the outbreak very seriously and was doing all it could to bring the situation under control as quickly as possible.

25. As there was to be a police investigation, the Chair noted that it was not possible for the Executive to respond to questions in any detail in public at this stage, as it would be important not to prejudice the outcome. As with any outbreak, the FSA would seek to identify any lessons to be learned and would co-operate fully with the inquiry that had been announced by the Welsh Assembly. As the Local Authority Framework agreement had been introduced five years ago, it was considered an appropriate time to establish a high level review of the audit process, in conjunction with local authorities, environmental health and trading standards.

26. The Chief Executive advised Board members that the first cases had presented on 14 September, and an outbreak had been declared on 16 September. The FSA had formally been notified on 19 September, when it was thought that food was the likely source of the outbreak. Investigations carried out by the Outbreak Control Team (OCT) had identified a common link between cases of illness in affected schools and consumption of cooked meats from a catering butcher. Local authorities and the FSA had worked hard from that time on to identify and remove all potentially contaminated meat from use. The peak of the cases at the time of the Board meeting was 156, with 152 cases confirmed as E. coli O157.

4 children remained in hospital and it was hoped they would make a speedy recovery. Most of the cases had dates of onset on or before 23 September. The mean incubation period for E. coli O157 was around 48 hours, but incubation periods of up to 14 days had been known, particularly where the initial exposure to contamination was low. The shape of the incubation curve suggested that the actions taken had been effective in removing the primary source of infection but it was possible that a few secondary cases remained.

27. Following the death of the young child, South Wales Police was now leading the investigations into the cause of the outbreak. FSA Wales officials had worked closely with all agencies throughout the course of the outbreak, and were members of both the OCT and of the police-led Incident Management Team. The fact that there was now to be a police investigation meant that all agencies would need to take great care to ensure that nothing was said or done that might be prejudicial to the outcome. The National Assembly for Wales had announced that there would be a public inquiry. The FSA welcomed this and would co-operate fully with it. The remit and terms of reference of the inquiry would be announced in due course. Within the next month, there would be an internal review of the incident, which was standard practice for any incident in which the FSA was involved.

28. The Chief Executive assured the Board that the FSA would look to see what lessons could be learned from this serious outbreak and would act on the findings. He agreed it was an appropriate time to set in hand a review of the way the local authority audit arrangements and framework agreements had worked and informed the Board that the outcome of this work would be published. As the Board was aware, there were effectively three levels of control. The first responsibility rested with manufacturers and suppliers of food both in law and in practical terms as they were the only people who were present at all times when food was being produced. The second was local authorities who enforced the law in this area and inspected premises. Finally, the FSA was responsible for auditing local authorities performance.

FSA Wales had audited all 22 local authorities in Wales over the last four years and given each of them oral feedback on the findings at the time. Although there had been delays in producing the final reports because of lack of resources, they were now in the process of being completed and would be published in the next few weeks. The Chief Executive assured Board members that the FSA would look at its performance in this area to see what aspects could be strengthened.

29. The following issues were raised by Board members in discussion:

• the FSA should not wait until any legal procedures were complete before looking at internal processes and the role of the FSA
• it was important that any lessons were identified and implemented as quickly as possible
• the FSA should also consider key strategic issues such as resources, accountability and risk
• the review of the framework agreement should include risk assessment of premises, how key aspects of HACCP are inspected, how local authorities deal with recalcitrant operators and how audit arrangements could be put in place in a way that does not distort efforts

30. One Board member suggested that the Board should receive an account of any lessons learned, and that this should be discussed in an open session if possible. The Chief Executive reassured Board members that the FSA would review its role as soon as the outbreak was declared as being over and any short term lessons be incorporated into FSA procedures. The issues of resources, accountability and risk would also be considered and the Chief Executive would report the outcome back to the Board.

31. One Board member expressed concern that too many businesses were not treating food hygiene with the priority it deserved, and that a system of prior approval could provide an opportunity to create an attitude shift. The FSA should make progress on this as quickly as possible. In reply, the Chief Executive explained that it was important that the research underpinning the ongoing work on prior approval was seen to be robust in order to ensure that the evidence base for subsequent decisions was sound. However, although this was likely to take some time, there was a clear commitment to complete this work as soon as was reasonably possible.

32. One Board member suggested that the devolved offices should be given additional resources to deal with such situations and the communications arrangements put in place quickly. The Director of FSA Wales explained that, as part of the Incident Management Plan, resources to deal with the incident had been reviewed and that within 24 hours FSA Wales had been allocated an additional 4 people from HQ to strengthen the local team and help deal with communications. It was important to remember that this did not necessarily mean bringing people to Wales. Judith Hilton advised Board members that the management of communications was the responsibility of the OCT, rather than of the FSA alone, so as to provide a single focus and ensure consistency and clarity. The Chief Executive explained that he was very happy to move resource around as required to help with emergencies. The FSA had provided support to the OCT and the local authorities concerned to maximise impact. It was important that the FSA worked as part of an overall team but equally important that it did not get in the way of central arrangements.

33. The Chair summed up noting that:

• the Chief Executive would report back to the Board by the end of the year on the lessons learned (including resources, accountability and risk), the relationship between FSA HQ and the FSA offices in the devolved administrations, the relationship between the FSA and other organisations involved and identify any strategic issues, including prior approval. Although the police investigation meant that these issues would need to be discussed in closed session initially, there should be an opportunity for the Board to discuss in public as soon as possible. Action: Andrew Wadge/Julie Monk
• the Agency should undertake a fundamental review of the framework agreement and audit arrangements of local authorities. The Chair asked that the Executive report back to the Board within one month on how it was proposed to take this forward

Action: David Statham

Item 5 - Protecting Consumers: The FSA's Role as a Regulator
(FSA 05/10/02; FSA 05/10/02 - CORRIGENDUM)

[Prior to the discussion of this item Sandra Walbran declared an interest as a local authority environmental health officer, although not currently practising as such. The Chair considered that this was not a material conflict of interest and that Sandra Walbran should participate in the discussion and determination of this issue.]

34. The Chair welcomed Steve Wearne (Head of Strategy and Regulation Division) to the table.

35. Steve Wearne explained that, in parallel with the rapidly developing external debate on better regulation and enforcement, the FSA had initiated a debate on its role as a regulator. The Board had approved a draft policy statement in February, and stakeholders had been consulted on the regulatory tools used by the FSA, the scope of the FSA as a regulator, and how the FSA ensured the robustness and transparency of its regulatory decision-making. The results of the consultation had been summarised in Annex 1 to the paper, with a fuller register of stakeholder comments at Annex 2. The tabled corrigendum to Annex 2 addressed one specific comment from one consultee, who had raised concerns that the summarisation of the comment made, had effectively altered its original sense.

There was much in the consultation responses that the Board would wish to consider further and in depth. As a first stage, it was recommended that Board members consider the regulatory tools available and the factors to be taken into account when deciding which tools to use in which circumstances. The paper presented and discussed relevant comments from the consultation exercise, and proposed amendments to the relevant sections of the policy statement at Annex 3. The paper also proposed at Annex 4 some initial action to improve the FSA's effectiveness as a regulator. The action plan would be updated in light of subsequent Board discussions on the FSA's role as a regulator.

36. The Chair reminded Board members that they would be spending some time on regulation at their awayday in November. This paper would be the first in a series of papers on regulation.

37. The following issues were raised in discussion in relation to the policy statement shown in Annex 3:

Section A - The objectives and principles of regulatory decision-making in the FSA

The Board agreed the statement of the context for the FSA's regulatory decision making. Board members considered that any addition to the statement that the FSA ought to be evidence-based was unnecessary. Instead, there should be some commentary in the policy statement or in a supporting document that indicated the types of evidence that the FSA would take into account in its decisions. One Board member suggested an additional bullet point to make clear that the FSA was non-discriminatory in its application of measures.

Section B - The evidence base

The evidence base section should be revised so that the text was short and crisp. In order to communicate effectively with all levels of readership there should be a package of supporting documents that gave a description of how the FSA dealt with uncertainty.

Section C - Stakeholder engagement

Board members asked that the action point in Annex 4 to improve feedback to consultees be implemented earlier than March 2006. One Board member suggested that when discussing means of engagement with a range of stakeholders, there should be a reference to the role of the Advisory Committees in the devolved countries as providing conduits through which the FSA could engage with stakeholders in those countries. It was also suggested that the term 'accessible manner' (paragraph 10c) could be put more clearly.

Section D - Options for intervention

The intervention 'do nothing' (Box 1) should be expanded to make clear this was not necessarily a 'passive' option. Proactive intervention could include scrutinising of an issue and then, in light of the evidence, deciding to do nothing. The list should include an appropriate reference to local authority audits as it was a tool that the FSA used to influence local authorities to deliver better regulatory compliance by business.

The time scale for implementation of specific interventions was also critical and it should be made clear how this impacted on costs and benefits.

Section E - Deciding when to take action to protect public health

Board members agreed that the action plan should include a commitment to develop internal guidance to incorporate the proportionate and appropriate use of the 'Table of Eleven' into regulatory decision-making in the FSA.

Section F - Assessing the costs and benefits.

Board members agreed the revised wording on costs and benefits. It was however suggested that this section of the draft could be read as implying that cost consideration came first, whereas the FSA should give more weight to protecting public health. The Chief Executive noted that there was a role for proportionality and judgements were made on a case by case basis. Cost did not always fall on the public purse, nor were they always directly financial. Costs to consumers could include restriction of choice. Public health was a significant factor but not always the only one.

After some discussion it was agreed that this concern could best be met by revising paragraph 19 to reiterate the primary (statutory) objectives of the FSA. Repeating these here would set the proper context for the rest of this section.

While agreeing that most regulatory action resulted in costs to the consumer either via cost of product or increased taxation, one Board member noted that it was not necessarily correct to assume that additional costs could always be passed to the consumer. Costs might sometimes have to be absorbed by industry, for example where business believed that to pass them on would make its products uncompetitive in the market. In doing so, standards may be reduced and risks to public health may be increased. It was agreed to repeat the primary objectives of the FSA and to redraft paragraph 19 to capture the danger.

Section G - Operating in a European Context

Some Board members raised the importance of clarity about the role of FSA negotiating in Europe on behalf of the UK Government, particularly if the UK Government were to take a different view to the advice offered to it by the FSA. The Chief Executive explained that the UK's position in EU negotiations was a matter for collective Government decision. The FSA's role was to advise Government. The Government had not yet disagreed with FSA advice in such circumstances, but it was recognised that this could happen. The FSA was open about the decisions it took and the advice it offered. It had been accepted from the outset that this meant if - perhaps because of considerations outside the FSA's remit - the Government decided not to accept the FSA's advice, it would have to be open about that, too.

38. The Chair noted the issue of cost and asked that the document be redrafted to capture the issues discussed by the Board. It was important that the document was a clear and simple statement of FSA policy, with supporting documents providing more detailed information.

39. In summing up, the Chair noted that the Board had:

• noted the comments from stakeholders on the draft policy statement on regulatory decision-making
• agreed to revise the document with the changes requested and reissue in the short term but there should be a rolling process of revision so that following the Board's subsequent discussions on issues such as the FSA's style and scope as a regulator there would be a single package of documents
• endorsed the actions identified in Annex 4 and agreed that this action plan should be developed in light of subsequent Board discussions

Item 6 - FSA Priorities for Local Authority Food Law Enforcement (FSA 05/10/03)

[Prior to the discussion of this item Sandra Walbran declared an interest as a local authority environmental health officer, although not currently practising as such. The Chair considered that this was not a material conflict of interest and that Sandra Walbran should participate in the discussion and determination of this issue.]

40. The Chair welcomed Steve Wearne (Head of Strategy and Regulation Division) and David Statham (Director of Enforcement) to the table to introduce this paper.

41. Steve Wearne explained that one of the key themes of the current debate on better regulation and enforcement was the need - identified in the Hampton Review - for central Government and independent regulators to provide clearer priorities for local authorities- work on regulatory services. This work included food law enforcement. The Local Authority Better Regulation Group (LABREG), established by the Better Regulation Executive of the Cabinet Office, had asked central Government departments and independent regulators to set out their top regulatory priorities, counterbalanced by regulatory activities currently undertaken by local authorities where enforcement could be more passive.

42. The LABREG initiative covered England only and the implications for the devolved countries were being considered by the devolved administrations as the agenda developed. The paper proposed high and low priorities for the Board to consider. Board members were aware of the tight timetable that had been set and therefore the proposed initial priorities had not been subject to any discussions with stakeholders. Discussion within LABREG would involve representatives from consumer, enforcement and industry organisations as well as other Government departments. Once the priorities had been agreed by the Board, the FSA would supplement this process by consulting stakeholders to get their views on how the priorities might be best communicated and implemented. There would be a lot to gain from making clearer the priorities for the work the FSA expected local authorities to conduct.

However, participating in an exercise to set priorities across Government presented both risks and opportunities. Therefore the paper proposed that the Board return to this issue during the public consultation that was expected to take place, and take a view at that time on the extent to which any cross-Government priorities list would maintain or improve the protection of public health and the interests of consumers in relation to food.

43. The Chair noted that the proposal to look at the priorities in this broad way was consistent with the approach being taken by other major regulators.

44. One Board member asked if LABREG had rejected the option to establish guidelines for local authorities to use in setting priorities as it would be in the FSA's interest to have guidelines with public health ranked highly. Steve Wearne explained that FSA representatives had reiterated the FSA's strong preference for establishing guidelines rather than a detailed list of priorities, but that so far the sub-group had concentrated its efforts on seeing where priorities could be set.

45. One Board member suggested the need to retain some flexibility particularly in light of the FSA's plans to review the framework agreement for audits. Steve Wearne explained that, following the public consultation, the priorities would be piloted. This could take around 12 months and the FSA would then be in a better position to match priorities against the framework agreement.

46. One Board member asked for clarification on the audience for this work, as there was a danger that the priorities could be misinterpreted as people might think that there were only 10. It was suggested that the Agency should use language other than 'low priorities' to indicate that these were not priority areas but areas of local authority regulatory service activity that could be reduced or stopped. Another Board member asked that the consultation make clear that the priorities were not ranked. Steve Wearne explained that the primary audience would be LABREG and the terminology used reflected theirs. He acknowledged that there would be more work to do when the priorities are publicised to a broader audience and to show how they link to the strategic plan.

47. One Board member suggested that the process for identifying the 5 low priorities was an exercise that would be worth doing on a routine basis. The Chair advised that this was something that the FSA had been asking local authorities to do.

48. One Board member agreed that routine inspection that was not risk-based or targeted was a low priority. However, there was a case for local authorities to undertake risk-based targeted inspection programmes. Steve Wearne explained that he had sought to distinguish between them and as a counterbalance, inspection that was targeted, risk-based and proportionate was included in the top 5 priorities. He noted that the Hampton report had acknowledged the need to have some random inspections.

49. The Deputy Chair explained that the paper set out the FSA's initial priorities to discuss with LABREG and that discussions and negotiations would continue.

50. In summing up, the Chair noted that the Board had:

• agreed an initial list of high and low food law enforcement priorities for local authority regulatory services
• noted that the FSA would consult on the initial priorities, taking care over the terminology and make clear that the priorities are not ranked
• agreed to return to this issue during the public consultation to consider the likely impact on the protection of public health and consumer interests of any priorities list that was proposed as a result of this cross-Government initiative
• agreed that items described as 'low priority' were actually non priority

Item 7 - Nutrient Profiling (FSA 05/10/04)

51. The Chair welcomed Rosemary Hignett (Head of Nutrition Division) to introduce the paper and Professor Alan Jackson (Chair of the Scientific Advisory Committee on Nutrition (SACN)) to the table to advise the Board.

52. Alan Jackson was Professor of Human Nutrition, Director of the Institute of Human Nutrition, University of Southampton, and Honorary Consultant in Clinical Nutrition at Southampton University Hospitals. SACN was the Board's source of independent scientific advice on nutrition issues.

53. Rosemary Hignett explained that the paper set out the background and the approach taken to develop the nutrient profiling model. The work had been initiated following establishment of the Board's position on the promotion of foods to children in July 2004. The Board had agreed that the FSA's aim should be to contribute towards improving children's diets by developing a promotional environment for children that encouraged a shift from consumption of foods high in fat, sugar or salt to healthier options. It was intended to reinforce other activities, such as improvements in school meals. Nutrient profiling was a policy tool rather than a policy in itself and this model had been developed specifically for use in relation to possible broadcasting controls. No other use was envisaged. Ofcom was developing tighter controls on advertising foods to children and had concluded that, in order to do so in a proportionate manner, it needed to be able to target advertising for foods that children should eat less of. There had been three phases of development, overseen by a group of experts and stakeholders:

• a suite of potential models had been developed and tested to identify the approaches that were most effective in categorising foods
• an independently chaired academic seminar had considered a preferred model. The model had also been considered by SACN and had been subject to public consultation. The model had subsequently been revised to address the issues raised in those 3 fora
• there had been a second public consultation on the revised model and further consideration by SACN. The third development phase, set out in the paper before the Board, tackled the further issues that had been raised in the second consultation and by SACN

54. The model categorised food by means of a score which was related to levels of energy, saturated fat, total sugar and salt. This score could be offset by another based on beneficial elements - nuts, fruit, vegetables, protein and fibre. The purpose of the offsetting score was to ensure that foods of which children should eat more were favoured and that food from all the important food groups in the Balance of Good Health were represented. The choice of threshold for those foods that would be affected by further advertising controls was a matter of expert judgement in identifying those foods which children should eat less of. The scores were based on nutrient levels per 100g of a product. The arguments for a portion size approach had been considered in the first and second development phases and at the academic seminar.

The academic seminar had concluded that, for the proposed use, the 100g approach was appropriate, and in particular that adding portion size considerations would be an unnecessary complication. Portion size should only be used if demonstrable problems arose with the 100g approach. The expert group that had overseen the testing of alternative models, including models taking account of portion size, had reached the same conclusion.

55. There was continued strong opposition to nutrient profiling in principle from some food manufacturers. They argued that treating foods differently based on their nutrient composition was not appropriate. The Board had discussed this specific point in 2004 when it had agreed to initiate this work. Concern had also been raised that the Board was taking a decision very soon after the close of the second consultation, not allowing sufficient time to consider responses properly. She was able to assure the Board that all the responses from consultees had been read and considered carefully, and further refinements had been made to the model in light of these responses. The paper asked the Board to recommend the model to Ofcom for use in the context described and to review the model after a year of operation (on Ofcom's current plans that would imply a review in 2007). Ofcom was expected to issue its consultation on its proposed arrangements for advertising controls later this year and the Board would therefore wish to consider its response to that consultation in the first quarter of 2006.

56. The Chair noted that she had received a letter from Kellogg's, which had raised concerns about the 100g approach and the timing of the Board's consideration of the model. The letter had been circulated to Board members.

57. The Chair invited Professor Alan Jackson to comment on the model.

58. Professor Jackson explained that there was a long history in nutritional science of attempts to develop guidance related to food choice. It was important to have a clear sense of the objective of the exercise. He acknowledged the principle that there were no good or bad foods but foods had to be considered within the context of the total diet. Within a total diet, the relative contribution of individual items was important. The challenge was to try to achieve some form of metric that was simple to apply, use and understand. SACN had appreciated the opportunity to be involved in the process from the beginning and to comment on the activity at all stages.

The clear objective of the exercise had been the control on promotion of food to children through broadcasting media. The overarching concern was to protect children from overexposure to advertising for foods which it was undesirable that they should consume either too frequently or in too large amounts.

59. The approach had been based upon the scientific judgements provided by SACN and its predecessor COMA over the last 10 to 15 years. The evidence had been reviewed and recommendations had been made to the Government. The approach also reflected considered opinion over many years. The judgement that the model had taken was not an absolute judgement but a relative judgement with a sense of ranking in terms of relative contributions to a healthy diet. That posed challenges and he commended those involved in the development of the model. His view was that they had done a good job. It was clear where the boundaries lay and the processes of thought that had gone into developing the model were clear. The guidance represented nutrient-based and food based considerations. The objective was to strike a balance that was in favour of promoting a positive pattern of food consumption.

The first major consideration was that children should not be encouraged to overconsume fat, sugar and salt and the evidence to support that was very strong. Instead they should be encouraged to eat foods and/or patterns of nutrients that were good for health. This process had been about capturing the composition of items in relation to the whole diet and not about making statements about individual nutrient considerations. The process had been valuable and represented an excellent start. There might be a need to consider the effectiveness of the model even more critically but that should be done in practice rather than in theory. It was helpful that the paper recommended a review. The process of critical review would be particularly important as there would be pressure to apply the model more broadly.

60. One Board member asked for background on the decision to recommend the 100g approach. Rosemary Hignett explained that this issue had been considered on a number of occasions. It had been concluded that the portion size approach had no advantages but some disadvantages. It moved products that were high in fat, sugar or salt but eaten in small portions, such as snacks, towards the healthier end of the spectrum. This was considered to be a disadvantage by the expert group and the academic seminar. There was also added complexity as there were a number of foods that were used in different ways. Also, individuals acted in different ways and behaviour between different age groups of children differed. The use of a 100g method as a basis for advice and legislation on claims was well accepted and used in the UK and internationally. Professor Jackson added that portion size as a unit could not be measured or quantified with any reliability and also took no account of frequency of consumption.

Another Board member thought that there was still a place for portion size to be considered to help with the objective to reduce frequency and amount of consumption of some food. Rosemary Hignett explained that reducing portion size was important but it might not be addressed effectively through advertising controls. Discussions that were taking place with industry about reducing fat, sugar and salt intakes did include consideration of portion size.

61. One Board member did not consider that either the 100g approach or portion size was satisfactory as consumers would want to know how much salt, sugar or fat was in a particular product. The Chair explained that this was a mechanism to allow Ofcom to make judgements about advertising rather than to inform consumers about what they should or should not eat.

62. One Board member asked for more clarification on how the scores and categories had been identified, including the scientific basis of the judgement regarding the cut-off points. Rosemary Hignett explained that the four nutrients in Score A represented the key nutrients where reductions were considered important. Score C nutrients represented food groups where there were concerns that children might not have adequate intakes. Professor Jackson explained that the modelling process sought to capture the essence of a nutrient based consideration and then articulate it in ways that could be readily scored in practice.

63. Some Board members asked if the model excluded certain food groups that should be included in a healthy diet or included any major anomalies. Professor Jackson thought that, as far as they could tell, it did not. Rosemary Hignett explained that refinements had dealt with anomalies which had been identified. The purpose of the review was to deal with any anomalies which might emerge over time.

64. One Board member asked for more information about how the model would be used and who would use it. Another Board member asked if the evaluation questions had been framed yet. Rosemary Hignett explained that Ofcom was considering a wide range of options such as restricting advertising during children's air time and looking at advertising of particular appeal to children, for example, the use of cartoon characters. The Board would have the opportunity to consider this further once Ofcom had issued its consultation. Officials had a broad idea of the evaluation questions to be used in a review but there was a need to frame more specific questions once there was more information on how Ofcom planned to use the model. In response to a question about the use of the model Rosemary Hignett explained that BACC , who dealt with the other aspects of advertising content, would apply the model to specific models based on information provided by the advertisers. Ofcom had not raised any concerns about the practicality of using the model.

65. One Board member asked if the approach to final changes to the model had been subjective. The Chief Executive explained that the model had been tested on 300 foods. The judgement as to the appropriate position for the threshold was subjective, but had been agreed by dieticians and nutritionists.

66. One Board member particularly commended the approach. For those foods on the boundary, there would be an opportunity for manufacturers to reformulate to achieve recategorisation. Such reformulation could in itself result in health benefits. Advertising clearly had an effect on consumption and therefore the actions envisaged were appropriate and the model offered a scientific basis for targeting of controls. Another Board member was concerned that the model should only be used as intended. There was also concern that the arguments against the boundaries could be used to attack the intent. It would also be important to be clear that there were not additional ingredients that could be added to specific products to change scores without necessarily adding any nutritional value.

67. One Board member noted that the use of the model was one tool and in itself would not solve child obesity. The arguments about controlling advertising would continue and the FSA should support Ofcom in defending the model. Another Board member suggested that the paper was not just asking Board members to recommend the model to Ofcom, it was asking the Board to take a public stance, which it might then need to defend, on nutrient profiling.

68. Professor Jackson outlined the chain of evidence that underpinned this activity. SACN and COMA had provided advice to Government on diet and nutrition and there was a series of documents that outlined the range of issues in terms of cardiovascular disease, cancer, sugars, oily fish and so on. This guidance was derived from scientific reviews of the literature and the balanced interpretation of that provided by independent scientists. This set out the objectives to be achieved with respect to diet. It was possible to describe the pattern of food intake which best achieved those nutritional objectives. There was other evidence from national diet and nutrition surveys and other scientific surveys which showed the extent to which particular patterns of food consumption promoted health and limited the risk of disease. There was a substantial level of comfort from national, European and international considerations of the evidence that particular patterns of diets supported health.

It was against those patterns of diet that it was possible to identify the extent that individual food items contributed to achieving those patterns to a greater or lesser degree. Numerical scores captured the relative contribution that individual items were likely to make to a healthy dietary pattern. Some components of the diet were more likely to help people achieve balance whilst other components of the diet were less likely to do so. The nutrient profile ranking set out how likely those individual components were to help people achieve a healthier diet. There was therefore a consistent chain of evidence linking the understanding and application. The consultation process had sought to explore and expose anomalies and where possible address them. It was impossible to say that all anomalies had been covered but those involved were reasonably confident that there was an appropriate ordering of the healthier and less healthy components.

69. The Chief Executive assured Board members that the model had been through a thorough process. The FSA was as satisfied at it could be that the model could deliver for the purpose for which it was intended. If others sought to use the model in other contexts, the FSA would make it clear that this was not appropriate. He reassured Board members that the FSA would resource further work on this issue as necessary.

70. The Chair noted that the paper and subsequent discussion had shown the model to be evidence based and that the development process had been consultative and flexible. There was general support from Board members with an acknowledgement that as was often the case with complex scientific issues it might not be perfect. Therefore, the Board had:

• agreed that the nutrient profiling model be recommended to Ofcom for use in development of further controls on the broadcast advertising of foods to children
• agreed that a review of the impact of these new rules should be carried out after a year

Item 8 - Reports from the Chairs of the Advisory Committees (FSA 05/10/05, FSA 05/10/06, FSA 05/10/07)

71. The reports from the Chairs of the Advisory Committees were noted and the Chair invited the Chairs of the Advisory Committees to comment on their reports

72. The Chair of the Northern Ireland Food Advisory Committee (NIFAC) informed the Board that there was now a full complement of members on the Committee and they would be considering their forward agenda at their awayday in November.

73. The Chair of the Scottish Food Advisory Committee (SFAC) informed the Board that he would be meeting the Scottish Executive Health Department that evening to discuss their nutritional strategies. The Committee was currently in the process of appointing three new members. There had been 59 applications and the sift would take place on 14 October.

74. The Chair of the Welsh Food Advisory Committee (WFAC) informed the Board that in view of the pressure on FSA Wales at the moment, she had agreed to a telephone conference for the next meeting with no papers from the Executive. The next full meeting of the Committee would take place in November.

Any Other Business

75. There were no other business items raised.

Date of next meeting

76. The next scheduled open meeting would be held in York on 8 December.