Review of the Food Law Code of Practice (Scotland) and Food Law Practice Guidance (Scotland)

The Food Standards Agency Scotland (FSAS) seeks comments on the proposals to update the current Code of Practice (CoP) on Food Law Enforcement by local authorities for Scotland, under Section 40 of the Food Safety Act 1990, Regulation 24 of the Food Hygiene (Scotland) Regulations 2006 and Regulation 7 of the Official Feed and Food Regulations 2005 and one proposed change to the new monitoring system.

The proposed changes would allow authorities, if they wish, to replace the current enforcement policy, which is focused primarily on inspections, with a new policy for a suite of interventions. This will allow local authorities to choose the most appropriate action to be taken, to drive up levels of compliance by food establishments with food law. This approach is in keeping with the proposed changes under consultation in England and Northern Ireland. These changes reflect the Agency’s intervention approach and are consistent with the Local Authority Enforcement Monitoring System (LAEMS) which commences in April 2008. The introduction of an intervention based enforcement policy takes account of the recommendations in ‘Reducing Administrative Burdens: effective inspection and enforcement’ report by Philip Hampton, published March 2005. Although this report does not directly apply in Scotland, it is reasonable that food businesses operating throughout the UK will experience similar approaches to food safety enforcement. However, it has been agreed that additional safeguards can apply in Scotland. The additional safeguards could include:

• entrance criteria to qualify for the intervention approach e.g. premises broadly compliant at the last 2 inspections
• qualifying criteria to remain within the new system e.g. no significant contraventions found during an intervention

We would like your views on whether additional safeguards should be applied and what these additional safeguards should be.

Food Authorities in Scotland must have regard to this statutory code when engaged in the enforcement of food law, therefore it is necessary to update the current Code to reflect these recommendations and to take account of the monitoring changes being introduced in April 2008.

There should be a clear division between what food authorities must do in enforcing food law, which must be included in the statutory code, and other advice which can be published as practice guidance.

Similar consultations are taking place in England and Northern Ireland and Wales.

Main changes
The most significant proposed change to the CoP is the development of a suite of interventions including inspections, to maintain or improve the compliance of food establishments with food law. This will bring UK policy into line with the specification of Regulation (EC) 882/2004 on Official Controls. Please see section 4.1/chapters 4.3.1 to 4.3.6 of the draft Code and section 4.1 of the Practice Guidance.

We propose moving establishments requiring approval under Regulation (EC) 853/2004 into the risk assessment system as detailed in Annex 5 of the CoP. This is likely to reduce the frequency of interventions at these premises. Please see section 4.3 chapters 4.3.1 to 4.3.4 of the draft Code.

There are proposed revisions of the Code to introduce provisions for dealing with the enforcement of food law at the primary production level. Please see sections 1.1, 1.2, 3.3/ chapters 1.1.2-1.1.5, 1.2.4 – 1.2.9.1.7 and 3.3.2.2.2- 3.3.3.4 of the draft Code.

There are proposed amendments to section 3.7, on Quick Frozen foodstuffs.

At the meeting in Perth in January 2007 food authorities had expressed a preference for separation of the scoring elements for confidence in management and track record. The UK position did not favour any major change to the Confidence in Management (CIM) risk rating factor. Rather than introduce a different scoring system in Scotland and the consequent software difficulties that it could involve, we have reordered the wording of the 'Confidence in Management' sections in Annex 5 to emphasise that the intention of this element of the intervention rating scheme is to measure Article 5 compliance. We would like your views on whether the rewording addresses the concerns held by local authorities.

An alternative would be to remove track record from this element of the scoring system completely. A suitable alternative could be as follows:

Score – Guidance on the Scoring System
30 – No food safety management system or ineffective system. Significant hazards not controlled
20 – No food safety management system or ineffective system. Significant hazards do not exist or are controlled in practice
10 – Appropriate control measures have been implemented for all significant hazards but the food safety management system falls short of compliance with Article 5, having regard to the size and nature of the business.
5 – Largely complies with Article 5 (only minor non-conformities not significantly affecting food safety), having regard to the size and nature of the business.
0 – Complies with Article 5 and has implemented food safety management systems beyond the minimum requirement of Article 5, having regard to the size and nature of the business.

Where the size and nature of the business would require full HACCP in order to comply, then this score should be awarded where such a system is implemented to a very high standard (a very low level of minor non-conformances).

We also propose to reduce the amount of information the establishment is required to provide when registering a new food business establishment; with a view to reducing the administration burden placed on new businesses. We would like your views on whether this would reduce the administration burden on businesses while still protecting public health. Please see Annex 8 of the draft Code.

The Code has in general been updated to reflect the change in the terminology used when dealing with inspections and interventions.

The Code as also been amended to include the use of permanent transport authorisation in relation to live bivalve molluscs and a new annex containing a fishing vessel hygiene checklist. Please see page 115 and Annex 10 (page 172)

The practice guidance has been amended to incorporate the guidance on revisits issued by Scottish Food Enforcement Liaison Committee (SFELC).

We invite your comments on each of the proposed changes.

Interventions and monitoring
The new monitoring system – one change

10. We propose making one change to the plans for the new monitoring system, which were the subject of a consultation exercise between July and October 2006 . The planned outcome measure is to be the proportion of establishments deemed to be 'broadly compliant' with food law. The assessment of 'broadly compliant' is to be based on:

• for food hygiene, the risk rating scores for compliance with hygiene requirements, compliance with structural requirements and confidence in management
• for food standards, under the FSA risk rating system, the risk rating scores for confidence in management/control procedures, and for level of (current) compliance
• for food standards, under the Local Authorities Coordinating Office on Regulatory Services (LACORS) risk rating system, the score for confidence in the business’s control system in the local element of the risk rating

In 2006, we proposed that the assessment be based on the cumulative score for these factors, set at levels of 30, 20 and 10 respectively. Having reconsidered matters, and taken account of the comments received on the 2006 consultation, we now propose that each of these named risk rating factors be assessed separately, with no more than 10 points being permitted in each case for a premises to be deemed 'broadly compliant'. This will avoid the risk of a high score for one factor being 'masked' by low scores elsewhere.

We invite any comments you may have on this proposed change.

The proposals for a suite of interventions follows from and builds on the proposals for a new monitoring system for local authority food law enforcement, on which detailed proposals were issued for public consultation on 31 July 2006.

The table at Annex H shows how we propose that interventions are to be grouped together for recording and monitoring purposes.

What happens next?
The proposed policy changes will be considered further, in the light of responses to this consultation. We plan to finalise a revised code for submission to Scottish Ministers for approval early in the next financial year to take effect as soon as possible.

The new monitoring system is also planned for implementation from 1 April 2008.

We are now drawing up proposals for training sessions, on both the new code and the new monitoring system, for local authority colleagues. These are to be held during Spring 2008.

The changes currently proposed are the first section of a two stage process; with restricted but significant changes made to compliment the introduction of the new LAEM’s monitoring system and a second stage to address more wide ranging changes to the CoP.

This consultation has been prepared in accordance with the HM Government Code of Practice on Consultation, which states that a consultation must follow better regulation best practice, including carrying out an Impact Assessment (Regulatory Impact Assessment in Scotland). The assessment is included in the consultation documents.

We are interested in what you thought of this consultation and would therefore welcome your general feedback on both the consultation package and overall consultation process. If you would like to assist us to improve the quality of future consultations, please feel free to share your thoughts with us by using the consultation feedback questionnaire.

Consultation feedback questionnaire (Word)

Consultation feedback questionnaire (pdf)

In accordance with the FSA principle of openness our Information Centre at Aviation House will hold a copy of the completed consultation. The FSA will publish a summary of responses, which may include personal data, such as your full name. Disclosure of any other personal data would be made only upon request for the full consultation responses. If you do not want this information to be released, please complete and return the Publication of Personal Data Form. Return of this form does not mean that we will treat your response to the consultation as confidential, just your personal data.

Data protection form (Word)

Data protection form (pdf)

Within three months of a consultation ending we aim to publish a summary of responses received and provide a link to it from this page.

If, after three months, the summary is still not showing, please contact the person who was responsible for the original consultation. Alternatively, you can contact the FSA Consultation Co-ordinator by email: consultationcoordinator@foodstandards.gsi.gov.uk