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23 Jan 2013

Burgergate – who’s to blame and will legal action be taken?

David Cameron has called it “extremely disturbing” and asked the Food Standards Authority (FSA) to conduct an urgent investigation into the discovery of horsemeat in supermarket burgers. As part of that investigation, the FSA will consider whether any legal action should be taken. The relevant  legislation in England and Wales governing food safety is the Food Safety Act 1990. This requires food businesses to ensure compliance in three key areas: that the food supplied is not damaging to health; that it is of a nature, substance or quality which consumers expect; and that it is labelled, advertised and presented in a way that is not false or misleading. Any breach of this legislation is a criminal offence which can carry a term of imprisonment of up to two years. In this case, it would appear that food business operators may have fallen foul of the food safety legislation.

To prevent or defend a prosecution, the food business operator will need to demonstrate that they took all reasonable steps to prevent an offence being committed. This can only be done by showing that there were adequate and appropriate checks and measures in place to ensure compliance with the myriad of rules and regulations to protect consumer safety; and that those checks and measures were followed. This can usually only be demonstrated if there are documented procedures, proper training of all key personnel and an audit trail of action taken. If there has been any lapse in procedures or they are considered to be inadequate then the directors, owners, managers or other  employees of the business could face a criminal investigation and subsequent prosecution.

Liability could lie with any party in the food supply chain. The degree of culpability will depend on the level of compliance with the rules and regulations. Clearly a retailer is entitled to rely on the representations made by the supplier as to the quality of the product he is supplying, but the retailer will need to demonstrate that proper due diligence was carried out to negate or limit any liability if the supplier is later found to be in breach of the legislation. It is unlikely that liability would lie with the regulator unless a number of complaints had been made previously about a food business which were ignored by the regulator which meant that the business was allowed to continue and damage resulted thereafter.

Broadly speaking, a processor/manufacturer should ensure that meat is sourced from an approved establishment and that all the products have the appropriate health approvals and identification markings. Records must be kept identifying the supplier as well as details of the product supplied and the date to ensure traceability.

If a consumer is mislead as to the nature, substance or quality of the product they are buying, it may constitute consumer fraud. Many consumers are bound to say that if they had known that the burgers they were buying contained horsemeat they would not have bought them and so will say they were mislead into making the purchase. This is not only a criminal offence on the part of the retailer but could also lead to civil actions by consumers, although many retailers have offered a full refund to avoid the risk of civil claims.

Compliance and risk management is onerous but it is a fundamental part of any food business. Food business operators must ensure that compliance is part of the business culture and that corners are not cut for the sake of increased profits. Consumer protection is paramount: if rules and regulations are not adhered to, not only will be there be reputational issues resulting in a loss of business but also (and significantly) criminal sanctions for those responsible. Businesses must be advised to put their house in order in terms of compliance and to ensure that it remains that way. Tesco’s swift apology to customers may not go far enough on this occasion.

Corker Binning is a law firm specialising in criminal work of all types including food safety/environmental health. For more information about how we can help call us on 0207 353 6000.

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