Trading Standards Prosecutions

Producer Obligations

The main obligation on a producer is to supply a safe product. There is an obligation for producers to provide consumers with relevant information to enable them to:

• assess the risk inherent in a product throughout the period of its use (where such risks are not immediately obvious)
• take precautions against those risks

This in essence, means clear, legible durable warnings and instructions.

Producers must also allow for traceability by indicating on the product or its packaging:

• the name and address of the producer
• the product reference or, where applicable, the batch of products to which it belongs

Also, to enable producers to become aware of risks the product they should:

• sample test marketed products
• investigate and if necessary keep a register of complaints concerning the safety of the product
• keep distributors informed of the results of such monitoring where a product presents a risk or may present a risk

The Regulations state that Producers should be proactive, where they discover that a product they are  placing on the market or have already supplied poses risks to the consumer and is unsafe, they  immediately, in writing, notify their local trading standards. The authorities will advise on actions aimed at removal of the risk and work with Producers  on completing the notification.

Risk assessment is a procedure for identifying and assessing hazards, consisting of three steps:

• identify the hazard that is intrinsic and determine how serious it is (injury scenario)
• determine the probability of injury
• combine the hazard with the probability to determine risk

Using the model the resultant risk level may be ‘serious’, ‘high’, ‘medium’ and ‘low’

Enforcement action by the authorities

Where producers have not fulfilled their obligations under these Regulations, enforcement authorities have access to a range of measures that can be employed in removing risk to consumer safety. These are known as safety notices. They are only used when voluntary actions have not removed the risk.

Suspension Notices

Where there may have been a breach of the Regulations, these notices temporarily ban the placing on the market or the supply of a product while tests are undertaken and the results are awaited.

Requirement to mark /Requirement to warn

These powers allow an enforcement authority to order the marking of a product with suitable warnings where it could pose risks in certain conditions, or require that specific warnings be given to certain persons considered to be at particular risk from a product (for example, young children, the elderly, etc).

Withdrawal Notices

Enforcement authorities can issue a withdrawal notice to permanently prevent a person from further supplying a product that is believed to be dangerous where it is already on the market (if the voluntary action taken by producers and distributors is insufficient or unsatisfactory).

Recall Notices

Where an enforcement authority has reasonable grounds for believing that a dangerous product has already been made available to consumers and voluntary action falls short of that considered necessary and sufficient to remove the risk, a last resort (that is, no other measure available to the authority will suffice) power to serve a recall notice exists. This will require the person it is served on to take such steps as are identified in the notice to organise the return of the product from consumers.

Forfeiture and Destruction

Where products are dangerous the enforcement authority may apply to the court for an order for their forfeiture and destruction. However, as an alternative to destruction the court may, on condition that any order to pay the costs and expenses of the proceedings is complied with, permit the supply of the product to a person for repair or reconditioning or for scrap.

Distributor Obligations

Different obligations under the GPSR apply to retailers and wholesalers of consumer goods whose actions do not affect the safety of the goods (termed a ‘distributor’ under the Regulations).

GPSR Offences

It is an offence under the GPSR not to fulfil these obligations. Under s20 of the regulations a person, producer or distributor who is convicted of an offence could face up to 12 months imprisonment and up to a £20,000 fine.

Here at Olliers Solicitors we bring experience and understanding in giving advice on how best to handle being prosecuted under this legislation. We will be able to minimise the impact on yourself and your business in a cost effective way.

Olliers Solicitors are able to defend all manner of food safety prosecutions including:

• Food Safety Act 1990
• The General Food Regulations 2004
• The Food Hygiene (England) Regulations 2006

Any business working in the Food Sector is required to comply with Food Safety Standards as found in the above legislation.  The specific requirements depend on the type of business that is operated.

For larger businesses involved in the importation and distribution of food, regulations manage the safe importation, traceability, safe handling and labelling.

For smaller food retailers the regulations cover the safe management of food, staff training and cleanliness.

Offences under the Food Safety Act 1990

The main food safety and consumer protection offences created by the Food Safety Act 1990 include:

Section 7 Food Safety Act 1990 – rendering food injurious to health by:

• adding an article or substance to the food
• using an article or substance as an ingredient in the preparation of the food
• abstracting any constituent from the food
• subjecting the food to any process or treatment
• with the intention that it shall be sold for human consumption

Section 14 Food Safety Act 1990 – selling to the purchaser’s prejudice any food which is not of the nature or substance or quality demanded by the purchaser.

Section 15 Food Safety Act 1990 – falsely describing or presenting food.

Under section 20, if the commission of an offence is due to the act or default of another person, the other person is guilty of the offence.

Under section 21 in proceedings for an offence under the provisions of Part 2 of the Act – which includes the offences listed above – it is a defence for a food business operator to prove that he took all reasonable precautions and exercised due diligence to avoid the commission of the offence.

Here at Olliers Solicitors we bring experience and understanding in giving advice on how best to handle being prosecuted under this legislation. We will be able to minimise the impact on yourself and your business in a cost effective way.