The Food Standards Agency’s new approach to regulating large food retailers is under scrutiny and currently there are more questions than answers. By Nick Hughes.
The Food Standards Agency (FSA) is grappling with a dilemma as it seeks to create a regulatory regime fit for the future. How can ever-scarcer local authority resources be targeted to where they are most needed, while ensuring the public is protected wherever they choose to shop or eat?
The Agency’s latest attempt to square this seemingly impossible circle has triggered an angry response from the Chartered Institute of Environmental Health (CIEH), which warned that a proposal for so-called ‘national level regulation’ of large food businesses risks a loss of consumer confidence in the system.
To recap: the FSA recently piloted a new system with five major retailers – Tesco, Asda, Aldi, Sainsbury’s and Waitrose – which used data from the retailers’ third party auditors to inform the food hygiene rating awarded to individual stores. It now wants to move to a phased implementation of the new approach which could at some point be expanded to include high street food-to-go stores with a national presence like Greggs and Pret (and potentially caterers too), although the FSA says more work is needed to establish the case for extending it beyond retailers.
Local authorities would remain as the enforcing body and still have the ability to carry out inspections of the retailers under the proposed scheme, however these would be at a much lower frequency should they validate retailers’ own audit results.
In a paper presented in advance of September’s board meeting, the FSA described the pilot as “the first stage in a gradual move away from reliance on local inspection and towards a business-level assessment of data for these businesses”.
That in turn set alarm bells ringing not just among environmental health professionals but also regulators in the devolved authorities, both of which felt the FSA had not undertaken a full process of engagement before setting out its preferred next steps.
Although FSA board members generally expressed broad support for the proposals at this month’s board meeting, the Agency has gently applied the brakes at their request and following feedback from other stakeholders. It now says the idea for national level regulation will be explored further “with extensive engagement and consultation with local authorities, primary authorities, businesses and consumers, as well as discussions with governments across England, Wales and Northern Ireland” (Scotland has its own regime), with a fresh set of next steps to be presented at the December board meeting.
While the detail is finessed, a bigger question remains of whether the principle behind business level regulation is sound?
Evolution
Regulatory change is always fraught with difficulty but there are good reasons why the FSA is seeking to evolve the way hygiene rules are monitored and enforced. A local authority inspector might visit a local outlet of a large supermarket once every few years, yet businesses’ own private auditors carry out their own checks on a far more frequent basis. A business the size of Tesco with several thousand stores spread across the UK will have a highly tuned food management system of its own in place to guard against the risk of the kind of food hygiene breaches that make for unfortunate headlines. Large businesses also tend to make use of a primary authority, a local authority that is paid to provide consistent, tailored advice that helps them develop their own national systems and comply with regulations.
Yet even the largest of businesses can come up short from time to time. In 2021, Tesco was fined over £7.5m for selling 67 items of fresh products that were past their ‘use-by’ dates. The offending items included packs of grapes and strawberries with mould on them, pork belly slices and soup that was 17 days over its use-by date.
Although relatively rare, this kind of incident gives succour to the argument that businesses – even those as big as Tesco – cannot be trusted to mark their own homework.
Self-regulation?
The proposal to use businesses’ own audit data to inform food hygiene ratings has inevitably come with accusations of a shift towards self-regulation – an argument the FSA is determined to confront head on. Speaking during the board meeting, Carmel Lynskey, head of the achieving business compliance (ABC) programme at the FSA, said: “What we’re proposing today is absolutely not self-regulation or deregulation. It’s about increasing scrutiny across a small number of businesses and creating central oversight within the FSA.”
The FSA can cite in its favour the results of an independent evaluation of its proposals based on evidence from the trial, from which the Agency concluded that a national level approach “continues to provide strong protection for consumers” and “increases the insight into large businesses in a way that the current system could not achieve”.
Significantly, it also found it makes better use of limited local authority resources by creating the opportunity to remove a small number of inspections from the local authority workload and enabling those on the ground to redirect their resources to other priority areas and potentially spend more time supporting smaller businesses.
Targeting resources
FSA chair Susan Jebb was keen to downplay the resource argument during the board meeting and instead highlight that “this is about doing it better and getting better outcomes”. Yet the opportunity for food safety officers to work more efficiently is compelling given the parlous state of local authority headcounts and capacity.
In their joint annual review published in October 2023, the FSA and Food Standards Scotland warned that the UK’s ability to carry out critical food safety and standards checks in food businesses was at risk of being undermined by a shortage of key workers like hygiene inspectors and vets. FSA analysis of local authority staffing found there were approximately 14% fewer food safety posts being funded across England, Wales and Northern Ireland compared to a decade ago – and even where these posts did exist, over 13% were vacant. The number of UK food standards officers has fallen even further – by 45% compared to 10 years ago.
This is especially significant at a time when the food landscape is more fragmented and dynamic than ever – especially in foodservice. Traditional linear supply chains are being disrupted by aggregators like Just Eat and Deliveroo and by platforms like Facebook and eBay whose marketplaces offer people the opportunity to sell food prepared in their own kitchen direct to the public. This is bringing more risks than ever.
Safety on the net
The FSA has already engaged with the big delivery aggregators as part of the wider ABC programme. The three market leaders, Deliveroo, Uber Eats and Just Eat, have signed up to an aggregators food safety charter by which they will only accept registered food businesses onto their platforms and require a minimum food hygiene rating system (FHRS) rating (currently two for Deliveroo and UberEats, and three for JustEat, out of five). All three now display FHRS ratings to customers, and both Deliveroo and JustEat allow customers to filter restaurants by FHRS ratings. They have also all committed to use their channels to share food safety information and guidance, and to work with restaurants to support customers with food hypersensitivities.
The Agency wants more businesses to engage with the charter to help assure that food sold online meets the required standards, however it has not yet been able to bring the big online marketplaces like Facebook and eBay into the fold. Speaking at a CIEH conference in November last year, Katie Pettifer, then the FSA’s director of strategy and regulatory compliance and now interim chief executive, said of efforts to engage with Facebook: “We are a tiny, tiny fish in a much bigger pond of consumer protection issues,” adding, “we need to try and make common cause by joining up with other regulators in other sectors rather than just thinking about food”.
More immediately, the regulator must persuade key stakeholders that its proposals for national business regulation are fit for purpose. Speaking prior to the board meeting, Chris Elliott, professor of food safety at Queen’s University Belfast and vice president of the CIEH, said: “Any proposed changes to the regulatory framework must be underpinned by clear evidence and thorough consultation. I am concerned that without careful consideration, these reforms could weaken the very systems we rely on to ensure food quality and safety.”
Elliott knows a thing or two about the subject having overseen the eponymous Elliott Review into the horsemeat scandal. That review underscored the importance of consumer trust and transparency in the food system, which the CIEH believes the new proposals put at risk.
There are no easy answers to the FSA’s dilemma. But answers it must find if plans for national level regulation are to pass their inspection.
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