Addressing the Requirements of the Food Hygiene (Scotland) Regulations 2006

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1 Item no 18 THE CITY OF EDINBURGH COUNCIL Addressing the Requirements of the Food Hygiene (Scotland) Regulations 2006 Executive of the Council 10 October Purpose of report 1.I For Scotland s capital city with its major role in tourism and culture, high standards of food hygiene are a major priority and the city has a strong trackrecord in this area. 1.2 This report seeks the Executive s approval for revised and expanded food law enforcement policies, the 2006/07 Food Service Plan and extended support to food business operators to assist them to meet legislative requirements. This will ensure that the city s high food hygiene standards continue to be maintained and improved. 2 Summary 2.1 As a consequence of European Community Regulation (EC) No. 852/2004, the Food Hygiene (Scotland) Regulations 2006 came into force on 11 January This legislative change coupled with an amended statutory Code of Practice and associated Practice Guidance necessitated a fundamental review of our food enforcement policies, the manner in which we conduct food hygiene inspection activities and institute enforcement actions. 3 Main report 3.1 The main impact of these changes on food businesses is the requirement under Article 5 of Regulation (EC) No. 852/2004 that food business operators shall put in place, implement and maintain a permanent procedure or procedures based on Hazard Analysis Critical Control Point principles (HACCP). For most food businesses this will require them to put documentation, systems and checks in place which can be evidenced and verified in order to show compliance with legal requirements. 3.2 At present enforcement personnel are adopting an educative approach to assist food business operators (FBOs) to meet these new legal requirements. However, the average time taken to complete a food hygiene inspection has increased by approximately 20-25% as a direct consequence of the need to verify compliance. Where problems are identified, Officers are currently able to enlist the assistance of CookSafe practitioners who are able to spend time with FBOs and mentor them towards meeting their legal obligations without the need to revert to statutory action. 1

2 The CookSafe Project which is fully funded by the Food Standards Agency (Scotland) has enabled the City of Edinburgh Council to assist 882 Edinburgh businesses since October 2004 by providing a range of materials, seminars, workshops and one to one mentoring, all aimed at raising awareness within the catering trade thus promoting the adoption of food safety management systems. Advice, guidance and support materials are provided free of charge to the CookSafe client and have been delivered in English, Cantonese, Punjabi and Urdu. Whilst the funding for the project was initially due to end at 30 September 2006, the opportunity to bid for an extension to 31 March 2007 has been pursued and at this stage the Food Standards Agency (Scotland) have indicated that subject to certain contractual matters the funding has been secured. The Food Standards Agency (Scotland) have stated that no further financial support will be available for this project after that date. The current availability of the three CookSafe practitioners greatly assists food enforcement personnel, enabling them to concentrate on meeting the Council s statutory obligations in relation to programmed inspection targets. Inevitably once the CookSafe project funding is exhausted this free consultancy will be withdrawn unless alternative funding arrangements are put in place. Under these circumstances, FBOs who require assistance to meet their legal obligations will need to secure that help from other providers. Otherwise they risk failing to meet legal requirements and face statutory action as a result. The alternative of enforcement personnel giving often extensive help and advice over several visits would not be sustainable without a serious impact on our ability to meet the targets for the food hygiene inspection programme. It is proposed, therefore, that in order to be able to assist food business operators to meet their legal obligations, to convert an existing Food Hygiene Enforcement Officer vacancy into a HACCP Enforcement Officer post to enable the Department to continue to respond to referrals of businesses in need of assistance identified by food safety enforcement personnel. Whilst the Food Hygiene (Appendix 1) and Food Standards (Appendix 2) Enforcement Policies are updated policies taking account of legislative changes, the alternative Enforcement Policy (Appendix 3) is entirely new and in line with the latest statutory guidance which requires Local Authorities to undertake enforcement activities in low-risk food businesses in a proportionate manner. The Food Service Plan (Appendix 4) is an annually revised document produced in line with the requirements of the Framework Agreement on Local Authority Food Law Enforcement with the Food Standards Agency (Scotland). Whilst it is not a requirement that each year s plan be subjected to member scrutiny, this year s proposed plan addresses all new legal and other requirements, particularly the intention to adopt an alterative enforcement policy and for that reason it too is being placed before the Executive. Financial Implications The conversion of an existing funded vacant Enforcement Officer post (AP4/5) into that of a temporary HACCP Enforcement Officer (AP4) for a period of two years can be contained within budget. Conclusions The coming into force of the Food Hygiene (Scotland) Regulations 2006 has had a major impact on both the regulator and the food business operator. The Council s food law enforcement service has had to critically re-evaluate all its policies, processes and procedures to ensure that they are in line with legal 2

3 requirements and best practice. The appendices to this report coupled with revised internal monitoring procedures, which will be subjected to regular review, are the foundations on which future food law enforcement in Edinburgh will be based. 6 Recommendations 6.1 The Executive is requested to approve the four documents appended to this report: 0 Food Hygiene Enforcement Policy (Appendix 1) Food Standards Enforcement Policy (Appendix 2) Alternative Enforcement Policy (Appendix 3) Food Service Plan 2006/07 (Appendix 4) 6.2 Having approved these documents the Executive is also requested to instruct the Director of Services for Communities to ensure that they are placed on the Council s website to permit public access, ensure transparency and to discharge the requirements of Section 15.1 of the Framework Agreement with the Food Standards Agency (Scotland). Mark Turley Director, Services for Communities 21 I 41 ob Appendices Appendix 1 Food Hygiene Enforcement Policy Appendix 2 Food Standards Enforcement Policy Appendix 3 Alternative Enforcement Policy Appendix 4 Food Service Plan 2006/07 Contactltel Colin Sibbald Tel: Wards affected All wards Background Papers T:Typist-Data.Cornrep.06.food hygiene.cjs. kr 25 September

4 APPENDIX 1 THE CITY OF EDINBURGH COUNCIL SERVICES FOR COMMUNITIES FOOD HYGIENE ENFORCEMENT POLICY Introduction 1.O The policy meets the Principles of Good Enforcement contained in the Enforcement Concordat developed by the Better Regulation Unit of the Cabinet Office and guidance and advice produced by the Food Standards Agency, the Local Authorities Co-ordinators of Regulatory Services (LACORS) and the Crown Office. 1.I The key factors of this policy are: The City of Edinburgh Council, as food authority: (0 (ii) (iii) (viii) has adopted this documented food safety policy, has decided that enforcement activity will be based on risk to public health, is committed to having regard to statutory Codes of Practice and the Enforcement Concordat supports the Lothian and Scottish Borders Food Liaison Group and the Scottish Food Enforcement Liaison Committee (SFELC) in their roles in improving consistency of enforcement and sharing best practice amongst food authorities, supports the home authority principle, has identified, by designation, the various enforcement decision makers and the limits of their authorisation, has defined informal action and will clearly demonstrate distinctions between legal requirements and advice on good practice, has identified circumstances appropriate to taking formal action including the issuing of statutory notices, has identified the circumstances for submitting reports to the Procurator Fiscal. Policy Objective 2.0 It is the City of Edinburgh Council s policy to strive to ensure that food and drink intended for sale for human consumption, which are produced, stored, distributed, handled or consumed within the City of Edinburgh are without risk to the health or safety of the consumer. Development and Review 3.0 This policy has been developed to meet legislative requirements; incorporate specific guidance contained in statutory codes of practice issued under the Food Safety Act 1990 and the Food Hygiene (Scotland) Regulations 2006; Food Hygiene Enforcement Policy July 2006 Page 1 of 8

5 follow the principles of the Enforcement Concordat; and support guidance issued by LACORS and SFELC. 3.1 The policy will be subject to regular review. It will be reviewed annually or earlier in the light of circumstances (eg changes in legislation or FSA(S) guidance). Compliance 4.0 All Authorised Officers, when making enforcement decisions, should abide by this policy. Any departure from this policy must be for exceptional reasons only and be capable of justification to the Divisional Officer and the Section Head responsible for food safety matters before the decision is taken, unless it is considered that there is a significant risk to the public in delaying the decision. Enforcement Action 5.0 Enforcement action, be it verbal warnings, written warnings, statutory notices or report to Procurator Fiscal, will primarily be based upon an assessment of risk to public health or failure to meet approval conditions. In this context, risk is the probability of harm to health occurring due to non-compliance with food safety law. Training 6.0 All Authorised Officers will be acquainted with the requirements of this policy and relevant procedures. All Officers will hold appropriate qualifications to enforce food safety legislation, will be mentored when joining the Food/Health and Safety Division and will receive ongoing training as necessary. Authorised Officers will receive a minimum ongoing training of I O hours per year based on the principles of continuing professional development. Communication Verbal and written communications with food businesses will differentiate between legal requirements and recommendations of good practice and will detail remedial action required, while recognising that alternative means of compliance are available. The Division will make use of translation, interpreter and signing services as required. When dealing with multi-site businesses, letters and other correspondence will be sent to the business s head office, registered office or other address (eg company food safety department) as well as, where appropriate, to the local branch. Notices will be sent recorded delivery to the company s registered or principal office. More detailed specific procedures and guidance on notices is provided to Officers. Food Hygiene Enforcement Policy July 2006 Page 2 of 8

6 Equipment 8.0 Appropriate equipment, properly calibrated where necessary, will be made available to Authorised Officers. Decision Making and Authorisation A Divisional Officer qualified in Environmental Health will be nominated as being responsible for all food safety matters. For the purposes of this policy the Environmental Health Manager will make the final decision on whether a report should be sent to the Procurator Fiscal. The decision to initiate formal enforcement action may be made by an Authorised Officer who meets the following criteria: (i) (ii) (iii) They are an Environmental Health Officer and they have a minimum of six months experience in food safety work. They are an Enforcement Officer and they possess the Higher Certificate in Food Premises Inspection of the Scottish Food Safety Officers' Registration Board; and they have a minimum of six months experience in food safety work. They meet the competence criteria set out in the Code of Practice made under the Food Safety Act (See also internal documented procedures PM15/1 and PM15/2.) The criteria for the authority to serve Hygiene Emergency Prohibition Notices are detailed later in this policy document. For the purposes of this policy, where proposed action would exceed the limits of the criteria of an Officer's authority under the preceding paragraph, the decision should be referred to a Senior Officer, Head of Section or Divisional Officer who will attend the location and make the final decision on action to be taken at that time. In the case of any decisions relating to food safety, regard shall be had to any Code of Practice made under the Food Safety Act 1990, the Food Hygiene (Scotland) Regulations 2006 and any other relevant legislation and to any associated Guidance. Enforcement Options 10.0 It is a purpose of this policy, in relation to enforcement options, to recognise the importance of achieving consistent, balanced and fair enforcement. To achieve and maintain consistency, the contents of the following documents will always be considered and adopted where appropriate: (i) Statutory Codes of Practice (ii) Food Standards Agency guidance (iii) Industry Guides (iv) LACORS circulars (v) Home Authority principle Food Hygiene Enforcement Policy July 2006 Page 3 of 8

7 (vi) (vii) (viii) (ix) SFELC circulars Scottish Food Co-ordinating Committee guidance Crown Office guidance Scottish Executive guidance 10.1 Authorised Officers will also have access to the following references: (i) (ii) (iii) (iv) (v) (vi) Computers with internet access Registered premises list ITECS database Departmental Food Safety Procedures and Guidance LACORS guidance Relevant legislation, Code of Practice and Practice Guidance Where this Authority is considering taking enforcement action which we believe, or are informed, is inconsistent with that adopted by other local authorities or contrary to any advice issued by LACORS or SFELC we will discuss these matters with the relevant food liaison / co-ordinating group. Where this Authority is considering taking enforcement action that may be contrary to any advice issued by the relevant home and / or originating Authority, the matter will be discussed with all relevant Authorities before initiating any action. Having considered all relevant information and evidence, the choices for enforcement action will be: (i) (ii) (iii) (iv) (v) (vi) Take no action Take informal action (verbal or written) Send a written warning (letter) Suspend or withdraw an approval Use statutory notices Send a report to the Procurator Fiscal 10.5 The latter three options above will be considered formal enforcement action. Enforcement within premises operated by the Council 11.O Council premises and in-house catering organisations are subject to the same food safety legislation and inspection procedures as other food premises. 11.I Any serious breaches of food safety law or matters requiring formal action will be brought to the attention of the appropriate Director and the Chief Executive. Informal Action 12.0 Informal action to secure compliance with legislation includes offering advice, verbal warnings and requests for action, voluntary closures, voluntary surrender of food, use of letters and the issuing of food hygiene inspection reports including hand-written reports generated on premises at the time of inspection. Food Hygiene Enforcement Policy July 2006 Page 4 of 8

8 12.1 Circumstances in which it will be appropriate to use informal action may include where: (i) (ii) (iii) (iv) (v) The act or omission is not serious enough to warrant formal action From the past history of the business or proprietor it can be reasonably expected that informal action will achieve compliance Confidence that the organisation s standards of management are high The consequences of non-compliance will not pose a significant risk to public health The circumstances, though serious and / or posing a risk to public health, in the judgement of the Authorised Officer the risk can be adequately controlled through voluntary action of the business Inspection reports (ie hand-written notes on self carbonised forms) will be issued following all programmed inspections even where conditions at the time of inspection are satisfactory. Where an informal approach is used to secure compliance with food safety law then any written documentation issued or sent to proprietors will: (i) (ii) (iii) Contain all the information necessary to understand what work is required and why it is necessary Indicate the legislation contravened, measures required to ensure compliance and that other means of achieving the same effect may be chosen Make a distinction between statutory requirements and recommendations of good practice Where an Officer accepts voluntary action by a business which involves closure of premises, the cessation of a food operation or the use of equipment, the Officer will ensure a written undertaking is obtained confirming the terms of the closure or prohibition. More detailed specific procedures and guidance on voluntary closure is provided to Officers. Verbal advice will also differentiate between legal requirements and recommendations of good hygiene practice. Where a food business is associated with voluntary organisations using volunteers, consideration will be given to using an informal approach even where formal action may normally be merited. Hygiene Improvement Notices 13.0 Circumstances in which it will be appropriate to use Hygiene Improvement Notices are: (i) (ii) (iii) (iv) There are significant contraventions of legislation There is a lack of confidence in the proprietor or enterprise to respond to an informal approach There is a history of non-compliance with informal action Standards are generally poor with little management awareness of statutory requirements Food Hygiene Enforcement Policy July 2006 Page 5 of 8

9 (v) (vi) The consequences of non-compliance could be potentially serious to public health Although it is intended to send a report to the Procurator Fiscal, effective action also needs to be taken as quickly as possible to remedy conditions that are serious or deteriorating The use of statutory improvement notices will, in general, be related to risk to health. It will not normally be appropriate to issue notices for minor technical contraventions. Hygiene improvement notices may only be issued by Officers authorised to do so, ie meet the criteria specified in the Decision Making and Authorisation section of this policy document, and are duly authorised by the Council. Hygiene improvement notices will not be signed by Authorised Officers on behalf of non-authorised Officers unless the Authorised Officer has witnessed the contravention and is satisfied that it is significant and all other appropriate criteria are satisfied. Officers will follow all relevant legal procedures and guidance in the statutory Code of Practice relating to the use and serving of hygiene improvement notices. Realistic time periods (preferably agreed with the proprietor as attainable and appropriate) will be placed on hygiene improvement notices. The Officer should also discuss with proprietors the works that will be specified and/or action required to comply with the notice. As a general policy, failure to comply with a hygiene improvement notice will result in a report to the Procurator Fiscal. Officers should therefore have sufficient evidence available to justify the issue of the notice and prove noncompliance, be prepared to pursue non-compliance by further legal action and be satisfied that proceedings are likely to succeed. More detailed specific procedures and guidance on hygiene improvement notices and reports to the Procurator Fiscal is provided to Officers. Hygiene Emergency Prohibition Notices and Orders 14.0 Circumstances in which it is appropriate to use a Hygiene Emergency Prohibition Notice (HEPN) are when: (i) (ii) (iii) The consequences of not taking immediate and decisive action to protect public health would be unacceptable. An imminent risk of injury to health can be demonstrated. This might include evidence from relevant experts including a public analyst, food examiner or microbiologist. The guidance criteria, specified in the relevant statutory Code of Practice, concerning the conditions when HEPN may be appropriate, are fulfilled Food Hygiene Enforcement Policy July 2006 Page 6 of 8

10 (iv) (v) There is no confidence in the integrity of an unprompted offer made by a proprietor to voluntarily close premises or cease the use of any equipment, process or treatment associated with the imminent risk A proprietor is unwilling to confirm in writing hidher unprompted offer of a voluntary prohibition 14.1 HEPNs can only be signed by an Authorised Officer who meets the qualifications criteria specified in the Decision Making and Authorisation section of this policy document and has two years food safety enforcement experience Where HEPN action involving chemical or bacterial contamination is being considered, medical or other expert advice may, if necessary, be obtained before a final enforcement decision is made Officers will follow all relevant guidelines in the statutory Codes of Practice relating to the use of prohibition procedures, including the detention and seizure of suspect food More detailed specific procedures and guidance on HEPNs and Hygiene Emergency Prohibition Orders is provided to Officers. Reports to the Procurator Fiscal 15.0 Any decision to initiate a report to the Procurator Fiscal shall be discussed by the Authorised Officer and Section Head at the earliest opportunity A proportionate approach to enforcement will be followed. Before deciding whether to prepare a report for the Procurator Fiscal it will be considered whether other action (eg informal action or Hygiene Improvement Notice) would be more appropriate Circumstances relevant to a decision to submit a report to the Procurator Fiscal include: (i) Serious breach of food law leading to risk to public health or actual harm to a consumer or group of people (ii) Poor hygiene standards which would warrant Hygiene Emergency Prohibition Notice or voluntary closure procedures (iii) Poor history of compliance (iv) Blatant failure to comply with Hygiene Improvement Notice or other notice Officers preparing reports to the Procurator Fiscal will consider guidance from the Crown Office and from other relevant agencies. Factors to be considered include - (i) (ii) (iii) (iv) the sufficiency of the evidence the likely cogency of any important witness and their willingness to cooperate the alleged person or persons have been identified any explanation offered by the food business operator Food Hygiene Enforcement Policy July 2006 Page 7 of 8

11 (v) (vi) (vii) (viii) the likelihood of the food business operator being able to establish a defence, in particular a due diligence defence the seriousness of the offence the suspect s previous convictions whether the offence was committed as a result of a genuine mistake or misunderstanding (though this must be balanced against the seriousness of the offence) More detailed specific procedures and guidance on reports to the Procurator Fiscal is provided to Officers. Genera I Proprietors of businesses will always be advised in writing of their statutory right of appeal against notices served under food safety legislation. Any formal action and its outcome may be notified to other bodies such as home and originating authorities, the Food Standards Agency, LACORS and food safety liaison groups. Specific procedures and guidance have been established and is provided to appropriate Authorised Officers in connection with approved premises. Revisits to check compliance will be carried out as necessary; in an appropriate timescale; and in accordance with any Departmental procedure or guidance on revisits. Complaints about food hygiene in premises will be investigated in a proportionate and timely manner and in accordance with Council/Departmental procedures, ie all complaints to have initial response within five days, maintain the confidentiality of complainant. Serious complaints to be actioned within 1 working day. Complaints will be actioned and followed up by out of hours staff if necessary. Food Hygiene Enforcement Policy July 2006 Page 8 of 8

12 APPENDIX 2 THE CITY OF EDINBURGH COUNCIL SERVICES FOR COMMUNITIES FOOD STANDARDS ENFORCEMENT POLICY Purpose 1.O The purpose of this policy is to ensure a consistent approach among Officers when undertaking food standards inspections, investigating complaints and sampling with regard to food standards issues. 0 bjective 2.0 It is this Council s policy to strive to ensure that food and drink intended for sale for human consumption, which are produced, stored, distributed, handled or consumed within the City of Edinburgh, are without risk to the consumer and are so labelled so as to allow the consumer to make an informed choice Development and Review 3.0 This policy has been developed with regard to advice contained in Statutory Codes of Practice issued under Section 40 of the Food Safety Act 1990, The Enforcement Concordat, the Food Standards Agency (FSA), the Local Authorities Co-ordination of Regulatory Services (LACORS) and Scottish Food Enforcement Liaison Committee Guidance (SFELC). The policy will be subject to regular review to account for changing circumstances eg changes in legislation or new guidance. Compliance 4.0 All Authorised Officers when making enforcement decisions should abide by this policy. Any departure from this policy must be for exceptional reasons only, capable of justification and be fully considered by the Head of Section and the Divisional Officer responsible for food standards matters before the decision is taken, unless it is considered that there is significant risk to the public in delaying the decision. Enforcement Action 5.0 Enforcement action may range from offering advice to issuing verbal warnings to prosecution and will be based upon an assessment of risk to public health and the level to which any purchaser might be prejudiced. In this context, risk is the probability of harm to health occurring due to non-compliance with food safety law. Food Standards Enforcement Policy July 2006 Page 1 of 8

13 Training 6.0 All Authorised Officers will be fully acquainted with the requirements of this policy and relevant procedures. Authorised Officers will receive a minimum ongoing training of 10 hours per year based on the principles of continuing p rofessiona I develop men t. Equipment 7.0 All authorised Officers will be provided with the relevant equipment deemed necessary to carry out their work effectively. Decision Making 8.0 A Divisional Officer qualified in Environmental Health will be nominated as being responsible for all food standards matters. 8.1 For the purposes of this policy, the Environmental Health Manager will make the final decision as to whether a report should be sent to the Procurator Fiscal. Advice and Education 9.0 The Department will give advice in response to approaches from businesses with regard to food standards issues and will undertake an educational role in relation to business in whatever form deemed appropriate according to changing ci rcu msta nces. Sampling 10.0 Samples will be taken in accordance with a sampling programme drawn up for the financial year. The purpose of the programme will be to establish that the food: (i) (ii) (iii) (iv) (v) is safe is compositionally correct contains no harmful contaminants or additives is correctly described bears all the necessary markings correctly The programme will be drawn up following consultation with the Public Analyst and take account of national surveys. Samples for bacteriological examination shall be taken in accordance with Code of Practice (Chapter 6 Sampling). Only samples taken formally in accordance with the code of practice will result in any kind of formal action as outlined in Food Standards Enforcement Policy July 2006 Page 2 of 8

14 Complaints Regarding Food Standards 11.O The purpose in investigating food complaints is to prevent a recurrence of a problem and to protect the public health; it is not to seek compensation for an alleged victim. This purpose will be made clear to any complainant. 11.I The decision to investigate food complaints beyond a preliminary discussion with the complainant will depend upon the evidence available and the following points will be considered: (i) (ii) (iii) (iv) (v) (vi) Is there food remaining? Is the relevant labelling present? Is there a witness to the purchaseldiscovery? Willingness of the complainant to provide a statement. Willingness of the complainant to appear in court if necessary. The voluntary surrender of the foodlpackaginglforeign body for disposal as seen fit by this Department The Department will recognise the Home Authority Principle. Where this authority, acting as an Enforcing Authority, is requesting information or assistance from a Home or Originating Authority, it will give the following information along with the request: (i) (ii) (iii) (iv) (v) (vi) (vii) The name of the product. Details of the referral and the complainant. The reason for referral. A copy of the public analyst s report and our comments. The productlsupplier s code. The health mark code. Contact details for an Officer will be provided to ensure liaison can be achieved Where this authority is the Home or Originating Authority and is in receipt of a request for assistance from an Enforcing Authority, it will only act on the request where the above-mentioned information is supplied. Exceptions to this will occur when the lack of Nos. 1, 5 or 6 is the reason for the complaint or if there is a good reason for the lack of information or a pressing need to respond despite poor information, eg a serious risk to health. Inspections 12.0 Food Standards Inspections will be carried out in accordance with a programme generated on the basis of risk in compliance with Code of Practice (Chapter 4 Inspections). The inspection shall be carried out with the assistance of forms FHS 3.1 and FHS 3.2. Food Standards means: legal requirements covering the quality, composition, labelling, presentation and advertising of food and of materials in contact with food. Food Standards Enforcement Policy July 2006 Page 3 of 8

15 Food Standards Inspection means: an inspection carried out in order to establish whether food standards are being met. Aut ho risat i on 13.0 Food Standards inspections, formal action following complaint investigation and formal sampling will only be carried out by an Authorised Officer who meets the following criteria: (i) or (ii) or (iii) They are an Environmental Health Officer, and are considered competent in food standards work. They are an enforcement Officer, and possess the Higher Certificate in Food Standards Inspection of the Scottish Food Safety Officers Registration Board, and are considered competent in food standards work. They meet the requirements of Chapter and of Code of Practice issued under Food Safety Act For the Purposes of this policy, where the limits of authorisation are exceeded, the decision should be referred to the relevant line manager In the case of decisions relating to food standards, due consideration will be given to the Codes of Practice made under the Food Safety Act Section 40, and advice and guidance given by the Food Standards Agency, the SFELC and LACORS. Enforcement Options 14.0 It is the purpose of this policy, in relation to enforcement options, to recognise the importance of achieving consistent, balanced and fair enforcement To achieve and maintain consistency, the contents of the following documents will always be considered and adopted where appropriate: Statutory Codes of Practice FSA(S) Guidance LACORS guidance Home Authority Principle Scottish Food Enforcement Liaison Committee Guidance Crown Office Guidance Scottish Executive Guidance 14.2 Authorised Officers will also have access to the following references, which will be kept on file and updated regularly: Registered Premises List (Computer) Food Safety Manuals Food Standards Enforcement Policy July 2006 Page 4 of 8

16 FSA guidance SFELC guidance LACORS guidance Where this Authority is considering taking enforcement action, which may be contrary to any advice issued by the relevant home and/or originating authority, the matter will be discussed with all the relevant Authorities before initiating any action. Having considered all relevant information and evidence, the choices for enforcement action will be: (i) (ii) (iii) (iv) take no action take informal action take graduated formal action send a report to the Procurator Fiscal When formal action is being considered, corroborative evidence will be obtained and contemporaneous notes taken at the time of inspection. Informal Action 15.1 Informal action to secure compliance with legislation includes offering advice, verbal requests for action, verbal warnings and the voluntary surrender of food, the use of letters and food standards inspections reports, including those generated on the premises following an inspection, and referral of the matter to a home authority Circumstances in which it will be appropriate to use informal action may include: (i) (ii) (iii) (iv) (v) The act or omission is not serious enough to warrant formal action. From the individual s/enterprise s past history it can reasonably be expected that informal action will achieve compliance. Confidence in the individual s/enterprise s management is high. The consequence of non-compliance will not pose a significant risk to public health and the level to which any purchaser might be prejudiced. The circumstances, although serious, can, in the judgement of the authorised Officer, be corrected by the voluntary action of the business 15.3 Standardised inspection reports will be issued following all programmed inspections. This will apply even when conditions at the time of inspection are satisfactory Where an informal approach is used to secure compliance with food standards requirements, then any written documentation issued or sent to proprietors will: (i) contain all the information necessary to understand what changes/ improvements are being required and why these are necessary. Food Standards Enforcement Policy July 2006 Page 5 of 8

17 (ii) (iii) (iv) indicate the legislation being contravened and the measures, which will enable compliance and that, where not, specified in the legislation, other means of achieving the same effect may be chosen. clearly indicate that any recommendations of good practice are not a legal requirement. Provide contact details for Officers so advice can be sought where necessary. Verbal advice will also differentiate between legal requirements and recommendations of good practice. Formal Action 16.0 The circumstances in which it will be appropriate to use formal action occur when: (i) (ii) (iii) (iv) there are significant contraventions of legislation. there is a lack of confidence in the individual s/enterprise s willingness to respond to an informal approach. there is a history of non-compliance with informal action. The consequences of non-compliance could be potentially serious to public health and the level to which any purchaser might be prejudiced Standardised inspection reports will be issued following all programmed inspections. Where a formal approach is used to secure compliance with legislation, then any written documentation issued or sent to proprietors will: (i) (ii) (iii) (iv) contain all the information necessary to understand what changes/ improvements are being required and why these are necessary. indicate the legislation being contravened and the measures, which will enable compliance and that, where not, specified in the legislation, other means of achieving the same effect may be chosen. clearly indicate that any recommendations of good practice are not a legal requirement. clearly indicate a timescale within which the changes/improvements must be made and the consequences of failure to comply, that a report may be prepared for the Procurator Fiscal Prosecution 17.0 Circumstances under which it will be appropriate to initiate prosecution by a report to the Procurator Fiscal are: (i) (ii) Where the alleged offence involves a flagrant breach of the law such that public health, safety or well being is or has been put at risk. Where the alleged offence involves a flagrant breach of the law so as to defraud the public. Food Standards Enforcement Policy July 2006 Page 6 of 8

18 (iii) Where the alleged offence involves a failure by the suspected offender to comply in full or in part with a formal communication from an Authorised Officer requiring compliance with legislation within a specified time When circumstances have been identified which may warrant a report to the Procurator Fiscal, all relevant evidence and information will be considered, to enable a consistent, fair and objective decision to be made. Where, having considered all the relevant facts, an Officer is of the opinion that an offence has been committed, helshe shall forthwith caution, before questioning, any person who may subsequently become the subject of such a report. The words used shall be I suspect that an offence may have been committed with respect to, and that as a result a report may be submitted to the Procurator Fiscal. I must therefore caution you that you are not obliged to say anything, but anything you do say will be taken down in writing and may be used in evidence. Do you understand?, as printed in the back of the official notebook in which all contemporaneous notes must be made. Where such questions are put in writing, the communication will include a si m i I a r caution. Before preparing a report to the Procurator Fiscal, the Officer responsible for enforcement action must be satisfied that there is relevant, admissible, substantial and reliable corroborated evidence that an offence has been committed by an identifiable person or company. There must be a realistic prospect of the Procurator Fiscal proceeding with the case. When a decision is being taken on whether to send a report to the Procurator Fiscal, the relevant guidance will be followed. The factors to be taken into consideration may include: The seriousness of the alleged offence The risk of harm to the public Id en t ifia bl e victims Failure to comply with a formal request Disregard of public health for financial reward The level to which any purchaser might be prejudiced The previous history of the alleged offender Previous history of similar offences Failure to respond to past warnings The likelihood of the defendant being able to establish a due diligence defence The ability and willingness of any important witnesses to co-operate The willingness of the alleged offender to prevent a recurrence of the problem The probable public benefit and the importance of the case Whether alternate action such as a formal request would be more effective or appropriate Food Standards Enforcement Policy July 2006 Page 7 of a

19 (xv) Any explanation offered by the individuaventerprise Once a decision has been taken to submit a report to the Procurator Fiscal, the matter will be referred without undue delay. Prosecution reports shall be checked and approved by Senior Officers up to Environmental Health Manager before electronic submission to the Procurator Fiscal. Any prosecutions and their outcomes may be notified to other bodies such as home and originating authorities, FSA(S), LACORS, SFELC, REHIS and food safety liaison groups. Review and Auditing 18.0 In addition to being subject to regular review, the policy will be updated as and when new or revised codes of practice become available For the purpose of this policy an audit trail will be established for all samples, complaints, inspections and enforcement actions The Head of Section and the Divisional Officer will be responsible for ensuring that the audit trail is maintained. Quality Control 19.0 All Officers carrying out food standards inspections will be assessed on a regular basis to ensure the quality and consistency of inspections is maintained at a high level The assessments will be made on the basis of: (i) (ii) joint inspections both with line managers and an Officers peers, and follow-up inspections by line managers or Officers with a high level of food standards enforcement experience There will be post-assessment interviews with the Officer, the assessor (and the Head of SectionlDivisional Officer, if different from the assessor) in order to agree on any areas for improvementltraining which may be necessary. Food Standards Enforcement Policy July 2006 Page 8 of 8

20 APPENDIX 3 THE CITY OF EDINBURGH COUNCIL SERVICES FOR COMMUNITIES FOOD/HEALTH AND SAFETY DIVISION 1.o ALTERNATIVE ENFORCEMENT POLICY Frequencies for food hygiene inspections and food standards inspections are dictated by the risk posed to consumers by the premises. The degree of risk is determined by competent personnel giving businesses an aggregate risk score across, for food hygiene, seven critical areas and for food standards, six critical areas. The aggregate risk score given to a business, places it into an appropriate risk category and inspections are generated at appropriate intervals by a computer database. The frequency that each risk category is inspected is determined by the Code of Practice issued under the Food Safety Act This Code of Practice requires a Local Authority to adopt an alternative enforcement strategy for premises which are designated as low risk and not included in their primary inspection programme. Low risk businesses are those that present little or no risk to public health or safety for food hygiene purposes or represent little or no risk of prejudicing consumers or trading unfairly for food standards purposes by virtue of their trading activities or the number of consumers they supply. Premises with an aggregate risk score of 30 or lower (provided the total does not include 22 points allocated for vulnerable groups) for food hygiene will be deemed low risk and will be included in the alternative enforcement strategy with the scope and other details of the business being confirmed not less than every three years. Premises with an aggregate risk score of 45 or lower for food standards will be deemed low risk and will be included in the alternative enforcement strategy with the scope and the details of the business being confirmed not less than every five years. Full inspections of premises falling into this alternative enforcement strategy will not be generated automatically but will take place as a result of:- * consumer complaints receipt of food premises registration forms a change in food business operator significant changes in activities Civic Government licensing requirements information gathered by other inspectors information provided by the food business operator as a result of periodic postal questionnaires sent by Services for Communities. Alternative Enforcement Policy Page 1 of 2 July 2006 Version 1.I

21 7.0 Food Standards Agency and Local Authority Co-ordinators of Regulatory Services (LACORS) guidance suggests that Officers carrying out information gathering visits to premises falling into the Alternative Enforcement categories do not require to meet formal qualification requirements as long as their activities are restricted to data /information gathering only. 8.0 Currently 2,500 premises are un-risk rated for food standards and 500 are unrisk rated for food hygiene. On the basis of their premises classification all would appear to fall into the low risk categories and will therefore be suitable to be visited by officers employed to carry out other duties eg anti-smoking enforcement. 9.0 With visits to 20,000 premises programmed to be undertaken by 31 December 2007, for the purpose of enforcing the Smoking, Health and Social Care (Scotland) Act 2005, Officers will at the same time as discharging their principle duties, after receiving appropriate training, administer a questionnaire to confirm the scope of the business and any changes which have taken place which may affect the risk rating. Food Hygiene Enforcement Officers will also as part of their routine duties gather similar information A desk based risk rating will be carried out by a qualified officer based on the information gathered. The risk score generated by this exercise will then determine whether the business will fall into an alternative enforcement regime or a normal inspection programme. 11.O The Government s Better Regulation Agenda, aimed at reducing the regulatory burden on business has been fully considered in the development of this policy. In particular it is felt that initial data acquisition by staff of Services for Communities rather than the alternative of an initial postal questionnaire will facilitate the collection of clear and accurate information, whilst ensuring consistency of the data gathered. This approach will also minimise disruption to business caused by additional administrative burdens Subsequently those business operators subject to an alternative enforcement strategy will only receive enforcement visits when triggered by any of the above criteria. Alternative Enforcement Policy Page 2 of 2 July 2006 Version 1.I

22 APPENDIX 4 THE CITY OF EDINBURGH COUNCIL SERVICES FOR COMMUNITIES COMMUNITY SAFETY FOOD SERVICE PLAN Food Service Plan Page 1 of21 July 2006

23 INDEX PAGE 3 SECTION 1 - FOOD SERVICE AIMS AND OBJECTIVES 1.1 The Main Aim 1.2 Links to Corporate objectives and plans PAGE 7 SECTION 2 - AUTHORITY BACKGROUND 2.1 Profile rg an isational S t ru ct u re 2.3 Scope of the Service 2.4 Demands on the service 2.5 Enforcement Policy PAGE 12 SECTION 3 - SERVICE DELIVERY PLAN Food and feeding stuff premises Complaints Home Authority Principle Advice to Business Food and Feeding stuffs Inspection and Sampling Control and Investigation of Outbreaks of Food Related Infectious Disease Food Safety Incidents Liaison with Other Organisations Food and Feeding stuffs Safety and Standards Promotion Working with the Food Standards Agency (Scotland) PAGE 17 SECTION 4 - RESOURCES 4.1 Financial Allocation 4.2 Staffing 4.3 Staff development Plan PAGE 18 SECTION 5 - QUALITY ASSESSMENT 5.1 Quality Assessment I Monitoring PAGE 19 SECTION 6 - SERVICE PLAN AND OPERATIONAL PLAN REVIEW 6.1 Review of Identification of Variances from the Service Plan 6.3 Areas of improvement Food Service Plan Page 2 of 21 July 2006

24 SECTION 1 - FOOD SERVICE AIMS AND OBJECTIVES The Food Safety and Animal Feeding stuffs Services are part of Community Safety in Services for Communities based at Chesser House, 500 Gorgie Road, Edinburgh. 1.1 The main aim of the Food Safety Service is: Aims To enforce and execute the provisions of the Food Safety Act 1990 and the European Communities Act 1972 and associated Regulations with regard to the safety and quality of food. To inspect all food premises within the City to secure hygienic standards of food production, processing, storage, distribution and sale in accordance with relevant legislation, Codes of Practice, centrally issued guidance and our policies and procedures. 0 To examine and sample, in order to secure satisfactory standards, food produced or purchased within the City to ensure that it is fit for human consumption and of the nature, substance and quality demanded by the public. 0 To react to food hazard warnings issued by The Food Standards Agency or other bodies as appropriate to secure the withdrawal of any suspect foodstuffs from premises within the City. 0 To investigate food and food premises related complaints in accordance with relevant legislation, Code of Practice, centrally issued guidance and our policies and procedures. 0 To react to public and business enquiries in relation to food matters including liaison with and giving advice to food businesses during planning and building operations to secure compliance with relevant legislation and Industry Guides. To provide up to date information and advice to the consumer and industry on Food Safety matters. To respond to consultation documents, prepare relevant reports and provide administrative and statistical data to the Council, Central Government, the Food Standards Agency (Scotland), professional bodies and any other interested party as appropriate. To investigate instances of food and water borne diseases within the City in accordance with relevant legislation, Codes of Practice, centrally issued guidance and our plans, policies and procedures. To provide an effective imported food and port health control service. Food Service Plan Page 3 of 21 July 2006

25 The main aim of the Animal Feeding stuffs service is: Aims To enforce and execute the provisions of the Agricultural Act 1970 and the Feeding Stuffs (Scotland) Regulations 2005 and the Feed Hygiene and Enforcement (Scotland) Regulations To provide up to date information and advice to the consumer and industry on Animal Feeding stuffs matters. To investigate complaints and enquiries in respect of fertiliser and animal feeding stuffs legislation in retail premises. To sample fertilisers and animal feeding stuffs to ensure that they do not pose a risk to animal or human health. To react to food hazard warnings issued by The Food Standards Agency or other bodies as appropriate to secure the withdrawal of any suspect animal feeding stuffs from premises within the City. To inspect fertiliser and animal feeding stuffs premises and deal with related enquiries and complaints for manufacturers, importers, packers and wholesalers. To register and approve relevant premises within the animal feed sector and to enforce and advise on fertiliser and animal feeding stuffs legislation in relation to the farming community. Objectives of the Food Safety and Animal Feeding stuffs Service 0 To ensure compliance with Food Safety and Animal Feeding stuffs legislation throughout the food chain from farm to consumer. To reduce the incidence of disease associated with contaminated food To improve Food Safety management systems among food business opera tors. 0 To improve public awareness of Food Safety and Hygiene. 0 To reduce the incidence and spread of disease associated with cases and outbreaks of foodborne disease. 0 To improve public awareness on the prevention of food borne disease. To protect the public from health risks arising from animal feeding stuffs. Food Service Plan Page 4 of 21 July 2006

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