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food Safety - Is your business ready to take action?

11 November 2011

Regulatory lawyer Nina Best explains the potential ramifications of failing to have in place an effective food product recall policy.

Celebrity Chef Heston Blumenthal has escaped prosecution due to there being insufficient evidence to show a clear breach of food safety legislation.

Whilst circumventing a prosecution is clearly a good thing, a negative report exists in the public domain that criticises Blumenthal’s three Michelin star restaurant, The Fat Duck.

In the UK, the health protection agency is the independent body that was set up by the Government in 2003 to protect the public from threats to their health from infectious diseases and environmental hazards. The HPA provides advice and information to the general public, and as happened on this occasion to local Government.

The HPA produced its report some time after the outbreak, which was in winter 2008, on 10 September 2009.

In the report, contaminated shellfish was identified as the cause. However, the report did not absolve Blumenthal’s restaurant from responsibility. The report identified a number of failures in the restaurant’s food management system. In particular, the report suggested that beyond the initial exposure of those consuming shellfish, there may have been ongoing transmission within the restaurant as a result of cross contamination and person to person transmission.

The virus in question was one that spread easily via personal contact and therefore can survive on surfaces for several days, making food hygiene and management procedures essential.

The report also said that the restaurant failed to respond to the incident appropriately, including a delay in reporting early signs to the HPA, the use of inappropriate environmental cleaning products and staff working when they should have been off sick.

As well as the negative image that the report has created in relation to this incident, Blumenthal’s handling of the outbreak and his response to the HPA’s investigation has upset some of its customers and many are suing the celebrity chef.

Should the local authority have found that there was sufficient evidence to prosecute, The Fat Duck Limited may have been liable under a plethora of legislation, including:

  1. Placing food on the market which was “unsafe” (Regulation 4, General Food Regulations 2004, Article 14(1), EC 178/2002), an offence which carries at £20,000 maximum penalty before the Magistrates’ Court and an unlimited penalty before the Crown Court;
  2. Selling food which does not comply with food safety requirement (section 8 Food Safety Act 1990), which carries the same maximum penalties as above; and
  3. Failure to protect food at all stages of production from contamination likely to render it unfit for human consumption (Regulation 17, Food Hygiene (England) Regulations 2006 and Paragraph 3, Chapter ix, Annexe 2, EC 852/2004), an offence carrying a £5,000 maximum penalty before the Magistrates’ Court and an unlimited penalty before the Crown Court.

The Fat Duck’s only potential defence would have been to prove, on a balance of probabilities, that they took “all reasonable precautions and exercised all due diligence” to avoid the commission of the offences.

This case represents a salutary reminder of the importance of food safety.  Further, the greatest criticism directed at Blumenthal was his reaction time to the outbreak, therefore it highlights the importance of a food product recall policy to ensure that all those involved in your business know how and when to act.

Any product recall policy must have as its aims and objectives the following:

  • Minimise risk to customers and anyone who may come into contact with recalled food.
  • Limit your liability and comply with the law.
  • Keep cost and inconvenience to your customers and your company to a minimum.

Protect your brand and image through effective and efficient recall management.

At Browne Jacobson, we are regularly involved with food businesses in producing food product recall policies.  If you would like to know more, please contact Rachel Lyne on +44 (0)121 237 4584.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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