On 4 November 2020, the Food Standards Agency (“FSA”) launched a consultation seeking views on proposed changes to the offences for non-compliance under the Materials and Articles in Contact with Food (England) Regulations 2012 (the “Regulations”).
Broadly the Regulations provide for the general safety rules for all materials and items intended to come into contact with food (food contact materials (“FCMs”)). Examples include anything from containers for transporting food and machinery to process it to packaging materials and kitchen and table wear. The legislation requires manufacturers, producers and sellers of food to ensure that the materials do not present a health risk for consumers or have a detrimental effect on food, such as altering its taste, aroma or composition.
The Regulations give authorities powers to implement and enforce a harmonised European legal framework covering FCMs. The Regulations are intrinsically linked to the European framework by identifying which breaches of EU provisions constitute an offence. The Regulations will remain in force following the UK’s exit from the EU through legislation which has already been drafted (The Materials and Articles in Contact with Food (Amendment) (EU Exit) Regulations 2019). This allows for the transfer of responsibilities from the EU to UK authorities and so the rules conferred by The Regulations will remain, at least for now.
At present, offences within the Regulations carry the maximum penalty on conviction of an unlimited fine or imprisonment for a term not exceeding two years.
The November 2020 consultation
The FSA is seeking views on its intention, in relation to offences set out in the Regulations, to reduce the maximum sentence from imprisonment to an unlimited fine. The FSA proposes that this change should apply to the nine offences already existing under the Regulations, as well as a new offence of failure to comply with Article 3(1) (requirements for plastic materials and articles), for which the FSA sought consultation in 2018 but has yet to be implemented. It is worth noting that the FSA does not intend for these changes to offence penalties to apply to offences linked to the use of bisphenol A in varnishes and coatings intended to come into contact with food (the BPA Regulation). As it explains within the consultation note, the potential significant health risks caused to vulnerable groups for non-compliance with this requirement, a maximum sentence of imprisonment remains an appropriate penalty for this offence.
The FSA explains that adjusting the maximum penalty to an unlimited fine will provide for a more proportionate and consistent approach, whilst also representing a significant deterrent to potential offenders.
Food for thought?
The deterrent power of unlimited fines has been recognised elsewhere with other regulators, such as the Health and Safety Executive who has successfully utilised the 2015 changes, which removed limits on the fines magistrates could order, to ensure offenders who breached relevant legislation faced significant financial penalties. As demonstrated by the £250,000 fine handed out in March 2019 to Dunbia (Preston) Limited, an abattoir who failed to remove ‘specified risk material’ from slaughtered animals, as required by the Transmissible Spongiform Encephalopathies (England) Regulations 2010, the FSA already has form for pursuing significantly deterrent fines for non-compliance. Whilst this may have been the FSA’s highest ever fine, it is clear that this case, and approaches taken by other like regulators, do show that monetary penalties alone can act as a sufficient deterrent for businesses and those working for them.
For further information on the issues raised in this blog post, please contact a member of our corporate manslaughter and health and safety team.
About the authors
Sophie Wood is an Senior Associate (Barrister) in our Criminal Litigation team with extensive experience in advising corporate and individual clients involved in a wide range of internal, criminal and regulatory investigations. Sophie has acted for individuals and companies involved in investigations brought by the Environment Agency, Health and Safety Executive and local authorities, and is a member of the firm’s cross-practice Health, Safety and Environment Group.
Magda Zima is an Associate in the Criminal Litigation team and deals with all areas of general crime, financial and business crime, international crime and investigations. Prior to joining Kingsley Napley, Magda worked as an adviser with the Refugee Council and with the United Nations High Commissioner for Refugees (UNHCR) in the Middle East, Asia, and Europe. She was also a Research Fellow with the Siracusa International Institute for Criminal Justice and Human Rights.