Sections 7 to 9 of the Food Safety Act 1990 comprise the core of the 1990 Act, although now amended to come into line with Article 14 of the EU general food Regulation (EC) 178/2002.
Producers are forbidden from placing unsafe products on the market under the provisions of the General Product Safety Regulations 2005, which gives effect to EU Directive 2001/95/EC. Food and feed come within the remit of the 2005 Regulations; it has limited application in that it only applies where there is no provision with the same objective other than the Directive. General food Regulation (EC) 178/2002 and additional specific food and feed legislation mean the 2005 Regulations are unlikely to have any relevance to food and feed but may provide a safety net if food and feed legislation is found wanting in any way.
2 Rendering Food Injurious to Health
Section 7 of the Food Safety Act 1990, as amended by regulation 9 of The General Food Regulations 2004, provides:
(1) Any person who renders any food injurious to health by means of any of the following operations, namely—
(a) adding any article or substance to the food;
(b) using any article or substance as an ingredient in the preparation of the food;
(c) abstracting any constituent from the food; and
(d) subjecting the food to any other process or treatment,
with intent that it shall be sold for human consumption, shall be guilty of an offence.
(2) In determining for the purposes of this section whether any food is injurious to health, regard shall be had to the matters specified in sub–paragraphs (a) to (c) of Article 14(4) of Regulation (EC) No. 178/2002.
It must, in order to secure a conviction for an offence under section 7, be shown that the food was in fact injurious to health.1 This, in turn, involves a consideration of the matters contained in Article 14(4)(a) to (c):
In determining whether any food is injurious to health, regard shall be had:
(a) not only to the probable immediate and/or short-term and/or long-term effects of that food on the health of a person consuming it, but also on subsequent generations;
(b) to the probable cumulative toxic effects;
(c) to the particular health sensitivities of a specific category of consumers where the food is intended for that category of consumers.
These provisions go further than the original section 7, not only must regard be had to the cumulative effect on individuals, but also the probable effects on future generations, and the particular health sensitivities of consumers for whom the food is intended.
The offence cannot generally be committed by an act of omission, it requires a positive act of ‘adding’, ‘using’, ‘abstracting’, or ‘subjecting’ a food to a process. The passage of time which results in food rotting and decaying does not fall within the remit of section 7.
Furthermore, residues of pesticides and veterinary medicines present in food above permitted levels are not within the scope of section 7 since these were added to ‘food sources’ not ‘food’. These residues are more properly regarded as contaminants.
The concept of the abstraction of a constituent from food has been the subject of judicial consideration in the past. It has been held to mean no more than a failure to correct the natural tendency of a constituent to rise or fall in a liquid.2 Where milk was allowed to stand so that the milk fat rose to the top and milk was sold by drawing from a tap at the base of the container an abstraction occurred by reason of a failure to stir the milk.3 A dilution of milk does not, however, amount to an abstraction4 but is likely to be an offence under other head as a consequence of adding water.
3 The Food Safety Requirements
(2) For the purposes of this Part food fails to comply with food safety requirements if it is unsafe within the meaning of Article 14 of Regulation (EC) No. 178/2002 and references to food safety requirements or to food complying with such requirements shall be construed accordingly.
Only section 8(4) of the Food Safety Act which concerns knackers’ yards survived the changes. This provides that any part of, or product derived wholly or partly from, an animal which has been slaughtered in a knacker’s yard, or of which the carcase has been brought into a knacker’s yard is deemed unfit for human consumption.
4 Inspection, Detention and Seizure of Suspect Food
The powers to inspect and seize suspect food contained in section 9 of the Food Safety Act 1990 continued largely unaffected by Regulation (EC) 178/2002 although now relate to the food safety requirements set out in Article 14.
The Food Standards Agency’s Code of Practice5 sets out the circumstances where the use of powers under section 9 to detain and seize food is considered appropriate, procedures for the serving and withdrawal of notices, voluntary surrender and the destruction or disposal of food.6
Section 9 provides that:
(1) An authorised officer of a food authority may at all reasonable times inspect any food intended for human consumption which —
(a) has been sold or is offered or exposed for sale;
(b) is in the possession of, or has been deposited with or consigned to, any person for the purpose of sale or of preparation for sale; or
(c) is otherwise placed on the market within the meaning of Regulation (EC) No. 178/2002;
and subsections (3) to (9) below shall apply where, on such an inspection, it appears to the authorised officer that any food fails to comply with food safety requirements.
In the ordinary course of events “all reasonable times” would be when the premises where the food is located are open for business, but circumstances may dictate otherwise since what constitutes a reasonable hour is a question of fact, which depends on the circumstances of the particular case.7
The Food Standards Agency’s Code of Practice states:
Unless the circumstances require immediate action, a decision to detain food should only normally be taken if it has been discussed with the owner or person in charge of the food and, if appropriate, with the manufacturer.8
Sections 9(3) to (8)9 go on to set out the power to serve notice on the person in charge of the food and seize, condemn and dispose of food. In the case of serving a notice:
(3) The authorised officer may either —
(a) give notice10 to the person in charge of the food that, until the notice is withdrawn, the food or any specified portion of it —
(i) is not to be used for human consumption; and
(ii) either is not to be removed or is not to be removed except to some place specified in the notice; or
(b) seize the food and remove it in order to have it dealt with by a justice of the peace;
and any person who knowingly contravenes the requirements of a notice under paragraph (a) above shall be guilty of an offence.
Where notice is given pursuant to section 3(a) the authorised officer must, as soon as reasonably practicable and in any event within 21 days, determine whether or not s/he is satisfied that the food complies with food safety requirements and, if satisfied, must immediately withdraw the notice. If not satisfied, s/he must seize the food and remove it in order to have it dealt with by a justice of the peace.11 The Code of Practice advises:
Food that has been seized should be dealt with by a Justice of the Peace as soon as is reasonably practicable, normally within two days, but if necessary longer to ensure that parties attend and be represented should they so choose. Highly perishable food should be dealt with by a Justice of the Peace at the earliest opportunity.12
Where the authorised officer seizes food and removes it, s/he must inform the person in charge of the food of the intention to have it dealt with by a justice of the peace13 and any person who might be liable to a prosecution14 in respect of the food is, if s/he attends before the justice of the peace by whom the food falls to be dealt with, entitled to be heard and to call witnesses.15
Finally, section 9(6) provides:
(6) If it appears to a justice of the peace, on the basis of such evidence as he considers appropriate in the circumstances, that any food falling to be dealt with by him under this section fails to comply with food safety requirements, he shall condemn the food and order —
(a) the food to be destroyed or to be so disposed of as to prevent it from being used for human consumption; and
(b) any expenses reasonably incurred in connection with the destruction or disposal to be defrayed by the owner of the food.
The justice of the peace, where satisfied that food fails to comply with food safety requirements, has no discretion in the matter and is bound to condemn the food.16
Where a notice under section 9(3)(a) is withdrawn or the justice of the peace refuses to condemn the food, the food authority must compensate the owner of the food for any depreciation in value as a result of the action taken.17 If there is any dispute the question must be referred to arbitration.18
The forms of notice pursuant to section 9 are prescribed by the Detention of Food (Prescribed Forms) Regulations 1990.19
The offence under section 9(3) is one of knowingly contravening a Detention of Food Notice which means that the prosecution must prove the defendant knew of the existence of the Notice and its contents. The offence is an exception to the general rule that food law offences carry strict liability, meaning the knowledge and intent of the defendant are irrelevant to the commission of the offence.
1 Hull v Horsnell (1904) 68 JP 591
2 Penrice v Brander (1921) JC 63
3 Bridges v Griffin  2 KB 233
4 Dearden v Whiteley (1916) 85 LJKB 1420
6 Including where food is certified as not having been produced, processed or distributed in compliance with hygiene regulations under regulation 27 of the Food Hygiene (England) Regulations 2006, SI 2006/14
7 Small v Bickley (1875) 40 JP 119
8 Op. cit., para 3.4.4
9 These provisions also apply where, otherwise than on inspection, it appears to an authorised officer that any food is likely to cause food poisoning or any communicable disease. Section 9(9) applies only to Scotland.
10 The form of notice pursuant to section 9(3)(a) is prescribed by the Detention of Food (Prescribed Forms) Regulations 1990.
11 Section 9(4) of the Food Safety Act 1990
12 Op. cit., para 3.4.5
13 The form of notice pursuant to section 9(3)(a) is prescribed by the Detention of Food (Prescribed Forms) Regulations 1990.
14 Under section 7 of the Food Safety Act 1990 or regulation 4(a) of the General Food Regulations 2004
15 Section 9(5)(a) of the Food Safety Act 1990
17 Ibid., section 9(7)
19 The Food Standards Agency provides a model form for the Detention Notice for use in cases where regulation 27 of the Food Hygiene (England) Regulations 2006 applies