The Food Safety Act 1990 predates the EU general food Regulation (EC) 178/2002 by some 12 years but has remained the main source of domestic UK food law. The 1990 Act has been subject to significant amendment on two occasions:
Under the Food Standards Act 1999 which created the Food Standards Agency (FSA). The FSA and the Secretary of State for Health share responsibility for food safety, subject to the devolution of functions in Scotland and Wales. Northern Ireland has its own very similar legislation.
The Food Safety Act 1990 (Amendment) Regulations 20041 and the General Food Regulations 20042 made the changes necessary to bring the provisions of the Act consistent with the general food Regulation (EC) 178/2002.
In particular, regulation 3 of the Food Safety Act 1990 (Amendment) Regulations 2004 amended the definition of ‘food’ under the 1990 Act so that is has the same meaning as it has in Regulation (EC) 178/2002, the basic food law measure having effect throughout Europe.
Whilst, at first sight, the arrangements in England, Wales, Scotland and Northern Ireland may appear to differ:
In practice, the food law rules of the various parts of the United Kingdom are unlikely to diverge very much because they are mostly made in implementation of common Community obligations.3
The Food Standards Agency summarises4 the main responsibilities of food businesses under the Act as being to ensure:
You do not include anything in food, remove anything from food or treat food in any way which means it would be damaging to the health of people eating it.
The food you serve or sell is of the nature, substance or quality which consumers would expect.
The food is labelled, advertised and presented in a way that is not false or misleading.
2 The Definition of ‘Food’
Regulation (EC) 178/2002 establishes common definitions in all EU Member States and among them widely defines ‘food law’ to include measures that extend beyond food and include, for example, all measures relating to materials and substances in contact with food or which may have a direct or indirect impact on the safety of food.
The definitions of ‘food’ and ‘feed’ are set out in Articles 2 and 3 respectively. Article 2 provides:
For the purposes of this Regulation, ‘food’ (or ‘foodstuff’) means any substance or product, whether processed, partially processed or unprocessed, intended to be, or reasonably expected to be ingested by humans.
‘Food’ includes drink, chewing gum and any substance, including water, intentionally incorporated into the food during its manufacture, preparation or treatment. It includes water after the point of compliance as defined in Article 6 of Directive 98/83/EC and without prejudice to the requirements of Directives 80/778/EEC and 98/83/EC.
‘Food’ shall not include:
(b) live animals unless they are prepared for placing on the market for human consumption;
(c) plants prior to harvesting;
(d) medicinal products within the meaning of Council Directives 65/65/EEC (1) and 92/73/EEC (2);
(e) cosmetics within the meaning of Council Directive 76/768/EEC (3);
(f) tobacco and tobacco products within the meaning of Council Directive 89/622/EEC (4);
(g) narcotic or psychotropic substances within the meaning of the United Nations Single Convention on Narcotic Drugs, 1961, and the United Nations Convention on Psychotropic Substances, 1971;
(h) residues and contaminants.
Oysters and other live shellfish fall within the definition of ‘food’ where, in accordance with paragraph (b) above, they are prepared for placing on the market for human consumption.
Where a product falls within the definition of both a ‘food’ and a ‘medicinal product’ within the meaning of paragraph (d) above, EU law specific to medicinal products alone applies.5 It has been held that a garlic capsule is not a medicinal product.6
In the case of ‘feed’ Article 3 provides:
‘(F)eed’ (or ‘feedingstuff’) means any substance or product, including additives, whether processed, partially processed or unprocessed, intended to be used for oral feeding to animals.
3 Extended Meaning of ‘Sale’ of Food
Under the law of contract a sale arises where there is an offer to sell by one party and acceptance by the other party which is accompanied by an intention to create legal relations and valuable consideration which passes between the parties. In the ordinary course of events a customer offers to purchase goods from a trader and the contract is agreed when the trader accepts the offer and the price paid, the valuable consideration, for the goods.7
The display of goods on a stall is not an offer for sale but an invitation to treat, it is the customer who makes the offer to buy at the price indicated or by striking a bargain.
The prohibitions and restrictions imposed under the 1990 Act are expressed in terms which encompass offering, exposing or possessing for sale. Exposure for sale involves exposure to view in a setting where sales are taking place or are expected.8 Margarine may be exposed for sale although wrapped in paper and so not visible.9 Possession means actual possession, it includes possession by an agent and is not narrowly defined.10 However, food left for collection at a place agreed in the contract of sale may no longer be in the possession of the seller.11
Finally, the general meaning of ‘sale’ is extended by the 1990 Act to include “the supply of food, otherwise than on sale, in the course of a business” and “any other thing which is done with respect to food and is specified in an order made by the Secretary of State”. The 1990 Act also includes food which is offered as a prize or reward or given away in connection with any entertainment.12
4 Human Consumption
The 1990 Act is concerned with the sale of food for human consumption13 in relation to which three presumptions are set out in section 3:
(2) Any food commonly used for human consumption shall, if sold or offered, exposed or kept for sale, be presumed, until the contrary is proved, to have been sold or, as the case may be, to have been or to be intended for sale for human consumption.
(3) The following, namely—
(a) any food commonly used for human consumption which is found on premises used for the preparation, storage, or sale of that food; and
(b) any article or substance commonly used in the manufacture of food for human consumption which is found on premises used for the preparation, storage or sale of that food;
shall be presumed, until the contrary is proved, to be intended for sale, or for manufacturing food for sale, for human consumption.
(4) Any article or substance capable of being used in the composition or preparation of any food commonly used for human consumption which is found on premises on which that food is prepared shall, until the contrary is proved, be presumed to be intended for such use.
The effect of these presumptions is that, save for domestic situations, food is treated as being for human consumption unless and until the contrary is proven. There is, therefore, an evidential burden placed upon the defendant which is sufficient to raise the issue but it remains for the prosecution to prove, beyond reasonable doubt, that the defence has not been established.
5 Food Authorities
The overwhelming majority of food law enforcement is undertaken by local authorities, in England these are principally the London boroughs, the district councils and the non-metropolitan county councils14 and, in Wales, the county councils and county borough councils.15
This gives rise to instances of concurrent responsibility which in some situations is clarified in legislation. The functions relating to emergency prohibition notices and orders under section 12 of the 1990 Act are carried out only by district councils while those concerning falsely describing or presenting food under section 15 are the responsibility of county councils.16 In other areas the Food Standards Agency provides guidance on inter-authority co-operation.17
Every food authority is required to enforce the 1990 Act within its area where that duty has not been placed on some other authority.
The principal offences under the 1990 Act are to be found in sections 7, 8, 14 and 15 as amended and supplemented by The General Food Regulation 2004.18
6.1 Rendering Food Injurious to Health
Any person who renders any food injurious to health by adding any article or substance, using any article or substance as an ingredient, abstracting any constituent or subjecting food to any other process or treatment, with intent that it shall be sold for human consumption is guilty of an offence.19
Positive steps are required to add, use or abstract something or subject to a process. An offence would not be committed under the provision where food becomes injurious to health by, for example, the process of decomposition.
Generally reliance is placed on other provisions in bringing proceedings. Offences under the 1990 Act are generally of strict liability whereas section 7 requires proof of intent that food is to be sold for human consumption.
6.2 Failure to Comply with Food Safety Provisions of Article 14
The substance of section 8 of the 1990 Act has been superseded by Article 14 of general food Regulation (EC) 178/2002. Any person who contravenes or fails to comply with the food safety requirements of Article 14(1) is guilty of an offence.20
6.3 Food Not of the Nature, Substance or Quality Demanded
The formulation now found in section 14 of the 1990 Act has been in existence since 1875. It is an offence for a person to sell to the purchaser’s prejudice any food that is not of the nature or substance or quality demanded by the purchaser.
The purchaser may stipulate qualities or characteristics which the food must possess, but this is not usually the case and in the absence of any regulatory standards it is for the court to decide on the evidence what the purchaser had demanded.
6.4 Falsely Describing Food
The general prohibition on misleading labelling was introduced under Article 2 of Directive 2000/13/EC now subject to replacement and repeal as from 13 December 2014 by Articles 7 and 53 of the food information to consumers Regulation (EU) 1169/2011. Until this date it remains in force and implemented by section 15(1) of the 1990 Act.
It is an offence to give with any food sold, or display with any food offered or exposed for sale, or in possession for sale, a label, whether or not attached to or printed on the wrapper or container which falsely describes the food or is likely to mislead as to the nature or substance or quality of the food.
Section 15(2) extends these provisions to advertising so that it is an offence to publish, or be a party to the publication of, an advertisement that falsely describes any food or is likely to mislead as to the nature or substance or quality of the food.
The criminal law generally requires proof of criminal intent in order to secure a conviction for an offence. In a number of situations Parliament has decided that some things are so important they must be prohibited absolutely and food legislation has generally always fallen into this category, known as offences of strict liability. In order to lessen their impact on the honest trader, however, a number of statutory defences have been introduced.
7.1 Offences Due to the Fault of another Person
Section 20 of the 1990 Act provides a defence where the commission of an offence is due to an act or default of some other person. In these circumstances that other person may be prosecuted and convicted of the offence regardless of whether or not the first is subject to prosecution.
7.2 Defence of Due Diligence
Section 21(1) of the 1990 Act provides that it shall be a defence for the person charged with an offence to prove that he or she took all reasonable precautions and exercised all due diligence to avoid the commission of the offence by him or herself or by a person under their control.
Specific criteria are laid down in relation to the offences under section 14 and 15, without prejudice to the generality of section 21(1), in the case of persons who neither prepared nor imported the food in issue.21 Where these criteria are satisfied the defence is established.
If the defence involves an allegation that the commission of the offence was due to the act or default of another person, the defence cannot be relied upon, without leave of the court, unless at least seven clear days before the hearing and within one month of a first appearance before the court in connection with the matter, written notice has been served on the prosecutor giving such information then known identifying or assisting in the identification of that other person.22
7.3 Defence of Publication in the Course of Business
Section 22 of the 1990 Act provides a defence for persons who innocently publish adverts. In proceedings for an offence involving the advertisement for sale of any food, it is a defence to prove that he or she is a person whose business it is to publish or arrange for the publication of advertisements and he or she received the advertisement in the ordinary course of business, did not know and had no reason to suspect that its publication would amount to an offence.
8 Power to Inspect and Seize Food
Section 9 of the 1990 Act provides authority for an authorised officer of a food authority, at all reasonable times, to inspect any food intended for human consumption which:
Has been sold or is offered or exposed for sale.
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.
Is otherwise placed on the market within the meaning of Regulation (EC) No 178/2002.
Where, on inspection, it appears to an authorised officer that any food fails to comply with food safety requirements or, otherwise than on inspection, it appears that any food is likely to cause food poisoning or any disease communicable to human beings, the authorised officer may:
Give notice to the person in charge of the food that, until the notice is withdrawn, the food or any specified portion of it is not to be used for human consumption; and either is not to be removed or is not to be removed except to some place specified in the notice.
Seize the food and remove it in order to have it dealt with by a justice of the peace
Any person who knowingly contravenes a notice commits an offence.
Guidance on the operation of powers to seize and detain food is given in the Food Standards Agency’s Food Law Code of Practice (England)23 and associated Food Law Practice Guidance (England). These are covered in more detail in Food Safety General: Inspection, Detention and Seizure.
9 Improvement Notices
Section 10 of the 1990 Act provides that an authorised officer may serve an improvement notice on the proprietor of a food business24 where he or she has reasonable grounds for believing that the proprietor is failing to comply with any hygiene regulations or regulations controlling the processing or treatment of food.
Any person who fails to comply with an improvement notice commits an offence.
Improvement notices are covered in more detail in Food Hygiene Unhygienic Food Businesses: Improvement Notices.
10 Prohibition Orders
Section 11 of the 1990 Act creates two categories of prohibition order. Firstly, if the proprietor of a food business is convicted of an offence under hygiene or processing regulations the court is satisfied that the health risk condition is fulfilled with respect to that business the court shall impose the appropriate prohibition.25 In this category the court has a duty.
Secondly, if the proprietor or manager of a food business is convicted of an offence under hygiene regulations and the court thinks it proper to do so in all the circumstances of the case, the court may impose a prohibition on the proprietor of a specified class or description.26
These administrative sanctions have been adopted by regulation 7 of the Food Hygiene (England) Regulations 2006 in regard to hygiene prohibition orders.
Guidance on the operation of prohibition orders is given in the Food Standards Agency’s Food Law Code of Practice (England)27 and associated Food Law Practice Guidance (England). These are covered in more detail in Food Hygiene Unhygienic Food Businesses: Prohibition Notices, and Emergency Prohibition Notices and Orders.
11 Regulations and Orders
General food Regulation (EC) 178/2002 extended food controls in ways in which the secondary legislative powers under the Food Safety Act 1990 have not been adequate to cover. In these instances resort has been made to section 2(2) of the European Communities Act 1972.
Regulations and orders made under the 1990 Act are made by statutory instrument subject to annulment by resolution of either House of Parliament.28 The Secretary of State shall, subject to some exceptions, consult with such organisations as appear to be representative of interests likely to be substantially affected. Consultation undertaken by the Food Standards Agency may be treated as being effective for these purposes.29
In practice consultation under Article 9 of Regulation (EC) 178/2002 takes precedence.
12 Public Analysts
12.1 Public Analysts
Public analysts were first appointed in the second half of the nineteenth century. Every food authority is required to appoint a public analyst30 to act as principal scientific adviser and who holds a public office with a degree of independence.
Public analysts are responsible for carrying out the analyses required for the purpose of enforcement proceedings and issue certificates of non-compliance in relation to food under a number of regulations.
12.2 Food Analysts and Food Examiners
A ‘food analyst’ means a public analyst or other person who possesses the requisite qualifications to carry out analyses for the purposes of the 1990 Act.
The qualifications of both are prescribed by the Food Safety (Sampling and Qualifications) Regulations 1990.
12.3 The Government Chemist
The Food Safety Act 1990
Food Safety (Sampling and Qualifications) Regulations 1990
Poultry Meat (Water Content) Regulations 1984
Materials and Articles in Contact with Food Regulations 2007
Agriculture Act 1970
Genetically Modified Animal Feed Regulations 2004
Feed (Hygiene and Enforcement) Regulations 2005
Feed (Corn Gluten Feed and Brewers Grains) (Emergency Control) Regulations 2005
Medicines Act 1968
Farm and Garden Chemicals Act 1967
The Government Chemist also has an advisory function to act as a source of advice for HM Government and the wider analytical community concerning the analytical chemistry implications in matters of policy, standards and regulation.
1 SI 2004/2990
2 SI 2004/3279
3 Barry Atwood, Katharine Thompson and Chris Willett, Food Law, 3rd edition, Tottel Publishing, 2009, para 4.1.2
7 Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern) Ltd  2 QB 795,  2 All ER 456
8 McNair v Terroni  1 KB 526; Keating v Horwood (1926) 90 JP 141
9 Wheat v Brown  1QB 418
10 Webb v Baker  2 KB 753
11 Oliver v Goodger  2 All ER 481
13 Ibid., sections 7(1), 8(1), 9(1), 14(2), 15(5), 16(5)(a) and 17(3)
14 Ibid., section 5(1)
15 Ibid., section 5(1A)
18 SI 2004/3279
19 Food Safety Act 1990, section 7
20 Ibid., section 8 as amended by The General Food Regulation 2004 SI 2004/3279, regulation 10. The offence is contained in regulation 4.
21 Food Safety Act 1990, section 21(3) and (4)
22 Ibid., section 21(5)
23 See Chapter 3.4, p60
25 Ibid., section 11(1)
26 Ibid., section 11(4)
27 See Chapter 3.3, p54
28 Food Safety Act 1990, section 48(3)
29 Ibid., section 48(4B)
30 Ibid., section 27(1)
31 Ibid., section 30(9)
32 Ibid., section 28(2)