1999 Chapter 28

© Crown Copyright 1999

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These notes refer to the Food Standards Act 1999
which received Royal Assent on 11 November 1999 (c.28)

FOOD STANDARDS ACT 1999

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EXPLANATORY NOTES

INTRODUCTION

1.     These explanatory notes relate to the Food Standards Act 1999. They have been prepared jointly by the Ministry of Agriculture, Fisheries and Food, Department of Health, Scottish Executive, National Assembly for Wales and the Department of Health and Social Services in Northern Ireland in order to assist the reader in understanding the Act. They do not form part of the Act and have not been endorsed by Parliament.

2.     The notes need to be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. So where a section or part of a section does not seem to require any explanation or comment, none is given.

SUMMARY AND BACKGROUND

3.     The Act gives effect to the proposals of the White Paper, 'The Food Standards Agency: A Force for Change' (Cm 3830). A draft Bill was published for consultation in the Command Paper 'The Food Standards Agency: Consultation on Draft Legislation' (Cm 4249) on 27 January 1999. The draft Bill was examined by the Food Standards Committee, whose report was published on 31 March 1999 (House of Commons Food Standards Committee Report of Session 1998-99 (HC 276) on the Food Standards Draft Bill).

4.     The Act was introduced in the House of Commons on 10 June 1999 and received Royal Assent on 11 November 1999.

5.     The main purpose of the Act is to establish the Food Standards Agency, provide it with functions and powers, and to transfer to it certain functions in relation to food safety and standards under other Acts. It sets out the Agency's main objective of protecting public health in relation to food and the functions that it will assume in pursuit of that aim, and gives the Agency the powers necessary to enable it to act in the consumer's interest at any stage in the food production and supply chain. The Act provides for the Agency's main organisational and accountability arrangements. In addition, it provides powers to establish a scheme for the notification of the results of tests for food-borne diseases.

OVERVIEW OF THE ACT

6.     The main body of the Act is arranged as follows:

• The Food Standards Agency (sections 1-5), concerns the establishment of the Agency, its main objective and its main organisational arrangements including the establishment of advisory committees (more detailed provisions are contained in Schedules 1 and 2);

• General functions in relation to food (sections 6-8), confers on the Agency responsibility for developing food policy and advising Ministers and other public authorities, for advising consumers and other interested parties and for keeping abreast of developments relevant to its remit;

• General functions in relation to animal feedingstuffs (section 9) supplements the Agency's functions in relation to animal feed;

• Observations with a view to acquiring information (sections 10-11) gives the Agency functions in relation to surveillance and provides powers to enable it to carry them out;

• Monitoring of enforcement action (sections 12-16) gives the Agency a function of monitoring food and feedingstuffs law enforcement and provides powers to enable it to carry it out;

• Other functions of the Agency (sections 17-21) describes the Secretary of State and the devolved authorities' powers to delegate the making of emergency orders to the Agency, the Agency's power to publish its advice, its functions under other Acts and supplementary functions (detailed functions under the Food Safety Act 1990 and other primary legislation are provided for in Schedule 3);

• General provisions relating to the functions of the Agency (sections 22-25), concerns certain considerations which the Agency must observe in carrying out its functions; provides for directions by Ministers and the devolved authorities should the Agency fail to perform its duties, and allows for modification of enactments to allow disclosure of information to the Agency and publication by it;

• Miscellaneous provisions (sections 26-35), sets out the functions no longer to be exercised by the Minister of Agriculture, Fisheries and Food, and the Department of Agriculture for Northern Ireland and makes various provisions for consultation with other parts of Government or the devolved administrations on aspects of food safety. It also allows secondary legislation to apply to animal feedingstuffs provisions equivalent to those of the Food Safety Act 1990, and corresponding Northern Ireland legislation and makes provisions for the modification of the constitution of the Agency, in the light of experience with devolution, or in the event of Scotland or Northern Ireland exercising their right to withdraw from the Agency or any of its functions;

• Final provisions (sections 36-43), defines various terms used in the Act, makes provision in relation to the financing of the Agency (accounts and audit provisions are in Schedule 4), applies the provisions of the Act to the Crown and amends or repeals legislation as a consequence of the main provisions of the Act (details are set out in the associated Schedules 5 and 6).

COMMENTARY ON SECTIONS

Section 1: The Food Standards Agency

7.     This section establishes the Food Standards Agency and sets its main objective. More details concerning the constitution of the Agency can be found in Schedule 1.

8.     Subsection (1) establishes the Agency for the purpose of carrying out the functions that are provided for in the rest of the Act. These functions provide the framework in which the Agency will operate. The way in which they will be carried out is limited by the requirements that are set down in the subsequent provisions, in particular sections 22 and 23. These provide for the Agency to carry out its functions in accordance with a statement of objectives and practices that has been approved by the appropriate authorities (as described in section 2 below). Section 23 furthermore requires that the Agency must act in a proportionate manner by taking account of risks, costs and benefits, as well as of any advice it receives from its advisory committees.

9.     Subsection (2) defines the main objective of the Agency. Food safety is central to this objective, but the subsection also embraces the Agency's role in relation to nutrition and diet, and protecting the wider food-related interests of consumers - sometimes referred to as food standards. This would cover in particular such matters as the labelling and composition of food (section 36(2) clarifies that the expression 'interests of consumers in relation to food', used in section 1 and at various places in the Act, includes matters related to the labelling, marking, presenting or advertising of food, and the descriptions which may be applied to food). This subsection does not imply that the Agency has any wider powers or functions than those provided by the rest of the Act, but sets the context in which the Agency's powers must be used.

10.     Subsection (3) establishes the Agency as a Crown body. It will be a non-Ministerial government department.

Section 2: Appointment of members etc

11.     This deals with the membership of the Agency and the procedures for appointing people to serve.

12.     Subsection (1) provides for the Agency to have a Chairman, Deputy Chairman and 8-12 other members, of whom one will be appointed by the National Assembly for Wales, two by the Scottish Ministers, and one by the Department of Health and Social Services for Northern Ireland. The rest will be appointed by the Secretary of State for Health.

13.     Subsection (2) specifies that the appointment of the Chairman and Deputy Chairman will be made jointly by the Secretary of State and his counterparts in the 'appropriate authorities' for Scotland, Wales and Northern Ireland. The 'appropriate authorities' are defined in section 36 of the Act and are:

• the Secretary of State: in practice, for the purposes of the Food Standards Agency, this will be the Secretary of State for Health;

• in Scotland, the Scottish Ministers: this is a collective term for the members of the Scottish Executive of the devolved administration. Again, for practical purposes, the Scottish Minister with responsibility for health is expected to take the lead;

• in Wales, the National Assembly for Wales. Under the Government of Wales Act 1998, powers are vested in the National Assembly as a whole. In practice, those with responsibility for health matters would be expected to lead on the Agency in Wales;

• in Northern Ireland, the Department of Health and Social Services: in Northern Ireland, powers are vested in departments, acting on behalf of Ministers, or after the Northern Ireland Act 1998 is brought into force, the Northern Ireland Executive.

14.     Subsection (2) requires the authorities to consult each other before making appointments.

15.     Subsection (3) provides for the authorities, in making appointments, to try to secure a reasonable balance of relevant skills and experience in the Agency's membership. The members will not be appointed to be representative of any particular interest or sector. Subsection (3)(b) requires the appropriate authorities to consider whether the person's financial or other interests - for example shares in a major food manufacturer - are likely to compromise his or her position as a member of the Agency. This does not necessarily mean that any such interests will automatically disqualify a person from appointment as a member. Under paragraph 9 of Schedule 1, the Agency will be obliged to establish and publish a register of the private interests of members: although the Act does not specifically require it, the Agency's procedural rules would be expected to prevent a member with an interest in a particular matter from taking part in discussions on it.

Section 3: Appointment of chief executive and directors

16.     Subsection (2) gives the Agency's Chief Executive particular responsibility to ensure that the Agency is run efficiently and effectively. He or she will be responsible to the Agency's members for the day to day running of the Agency itself and will also be the Agency's accounting officer (the officer responsible to Parliament for the way in which the Agency spends its money). Under subsection (3) the first Chief Executive is to be appointed jointly by the appropriate authorities, because the members of the Agency are unlikely all to be appointed when this appointment is made. Subsequent appointments will be a matter for the Agency, with the approval of the appropriate authorities.

17.     The separate directors for Scotland, Wales and Northern Ireland are appointed under subsection (4). Each will each head an executive body with responsibility for the operation of the Agency in the relevant part of the UK and will report to the Chief Executive. By analogy with the Chief Executive, the first appointment of the directors under subsection (5) will be made by the appropriate authority in Scotland, Wales or Northern Ireland, with subsequent appointments by the Agency with the authority's approval.

Section 4: Annual and other reports

18.     The Agency will be required to lay an annual report on its activities and performance before Parliament and before the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly. It may also make other reports to them.

Section 5: Advisory committees

19.     The purpose of the committees established by subsection (1) of this section will be to provide a focus for Scottish, Welsh and Northern Ireland interests in food safety and standards. They will be set up with a defined remit that will reflect the responsibilities of the UK Agency. Their membership will reflect the range of interests on food safety and standards issues in Scotland, Wales and Northern Ireland. The Agency is obliged under section 23 to take their advice into account when carrying out its functions or advising Ministers or the appropriate authorities.

20.     Subsection (2) enables the Secretary of State to establish an advisory committee for England, or English regions, with a similar purpose to those for Scotland, Wales and Northern Ireland. This provision has been included in case the Secretary of State feels such committees may be needed in future - in particular for the English regions. There is no current intention to establish such committees.

21.     Subsection (3) empowers the Agency to establish other specialist advisory committees if it so wishes. Further details on advisory committees, including provisions for the transfer of existing committees to the Agency and the creation of joint committees, are contained in Schedule 2.

Section 6: Development of food policy and provision of advice, etc. to public authorities

22.     This section gives the Agency the function of providing advice, information and assistance, including on matters relating to the development of policy on food safety and related matters, to any public authority (which would include, for example, local authorities or agencies of government). So far as Ministers, government departments and their equivalents in the devolved authorities are concerned, the Agency will have a duty to provide such advice, information and assistance on request, unless it is not reasonably practicable for it to do so (for example, because the resource costs of providing any particular item of information would be disproportionate).

23.     The advice, information and assistance which the Agency has the function of providing could for example include making recommendations to Ministers on the need for new primary legislation or proposing and drafting secondary legislation in order to improve food safety and standards. Another important aspect of the Agency's function of assisting Ministers will be to represent the UK at official level in relevant EU and other international forums.

24.     It is intended that the Agency as a UK body will be the primary source of policy advice in relation to food safety and associated areas to the Government as a whole, and to the devolved authorities. Most of the relevant expertise available to the Government and those authorities in the area of food safety and standards will therefore reside with the Agency and will not be duplicated within other government departments. The Agency will also be able to advise on the development of policies by other government departments on matters that are relevant to the Agency's own area of responsibility, for example advice to the Minister of Agriculture, Fisheries and Food on activities on the farm which may have an impact on food hygiene; or on relevant consumer protection matters to the Department of Trade and Industry.

Section 7: Provision of advice, information and assistance to other persons

25.     This section deals with the provision of advice, information and assistance to the general public or to individuals and bodies who are not public authorities.

26.     The section allows for information and advice to be given to either the general public as a whole or to individuals or particular sections of it such as groups representative of food industry sectors. Among other things, the Agency will be able, for example, to:

• run information campaigns on issues of current interest or importance;

• publish scientific data arising from research or surveillance and advise on its interpretation;

• publish information on enforcement activities, such as the existing BSE/meat enforcement publications;

• produce leaflets on food hygiene, labelling etc.;

• run a consumer helpline;

• issue advice for people with food allergies;

• pass on information about developments in food science to the public as a whole and to particular groups such as food producers;

• produce guidance on food safety matters for the food industry;

• issue food hazard warnings, alerting the public to particular problems.

Section 8: Acquisition and review of information

27.     This section concerns the Agency's function of keeping itself properly informed in order to carry out its other functions.

28.     Under Subsection (2)(a), the Agency will keep abreast of new developments in discharging this general function.

29.     Subsection (2)(b) provides for the Agency to develop its scientific understanding by undertaking, commissioning or coordinating research. Current research and development projects within the remit of the Agency funded by the Ministry of Agriculture, Fisheries and Food and any relevant research funded by other departments (such as the Department of Health) will be transferred to the Agency at the outset.

30.     Subsection (3) makes it clear that the purpose of the Agency's information-gathering activities, including the carrying out of observations (see section 10 below), is to enable it to carry out its general functions in an informed and effective way.

Section 9: General functions in relation to animal feedingstuffs

31.     This section provides that the Agency has the same functions of giving policy and other advice to public authorities, advice and information to the public and other bodies, and on the acquisition of information, in relation to animal feedingstuffs.

32.     The Agency will have wide-ranging responsibilities in the area of animal feedingstuffs. These include, for example, EU controls governing the safety, composition and labelling of animal feeds. The main reason for giving the Agency responsibility in this area is because of the possible implications of animal feedingstuffs for the safety of human consumers eating meat and animal products. This is already encompassed by the Agency's main objective in section 1 and its advice and information functions in sections 6-8, which apply to food safety and other interests of consumers in relation to food. However, in carrying out its responsibilities on animal feed, the Agency will also incidentally deal with matters which are not directly about food safety or the interests of consumers of food. For example, most of the relevant EU and domestic provisions also apply to pet foods, and responsibility for these cannot readily be separated from responsibility for animal feeds. Similarly there are provisions which relate to protecting the interests of the purchasers of animal feeds, or ensuring that the safety or health of the animal itself is not damaged. Although these matters are secondary to the Agency's primary purpose in relation to human health, the Agency needs to be able to have the legal basis to undertake these functions and this section provides it.

33.     Prior to this Act, feedingstuffs were regulated by means of regulations under the Food Safety Act 1990, the Agriculture Act 1970 and the European Communities Act 1972, and by Orders made under the Animal Health Act 1981. Under the Act, the Minister of Agriculture, Fisheries and Food will cease to have responsibility for regulations under the 1990 Act, but will remain responsible for the 1970 and 1981 Acts. Both the Secretary of State and the Minister of Agriculture, Fisheries and Food can make feed-related regulations under the European Communities Act 1972. The Agency will be able to give advice to both Ministers on the need for legislation under all these Acts as it sees appropriate. However, orders under the Animal Health Act in relation to feed are usually used to control feed borne diseases of animals, where MAFF's veterinary expertise is very important. Thus MAFF will retain the primary policy making role in relation to these. Arrangements will be put in place to ensure that MAFF and the Agency do not duplicate work in this area. MAFF and the Agency will co-operate closely to ensure that both bodies consult each other on feedingstuffs matters affecting human and animal health (see also section 28 in relation to cooperation on zoonoses).

Section 10: Power to carry out observations

34.     This section and section 11 set out specific powers that will help the Agency to fulfil its general function of obtaining and keeping under review any information relevant to its work. "Observations" describes the gathering of information on food safety and related matters through undertaking surveillance programmes or by other appropriate means for this purpose. The Agency will, if necessary, be able to conduct such work at any point in the food production and supply chain and anywhere else where there might be implications for food safety and related matters. For example, the Agency will be able to undertake observations on farms.

35.     The two sections give the Agency specific powers necessary to obtain information, either directly or through an authorised person acting on its behalf. These powers replace previous more limited powers contained in section 25 of the Food Safety Act 1990 and corresponding Northern Ireland legislation, which allow Ministers to make orders concerning the provision of information and the taking of samples of food, substances used in the preparation of food and contact materials. These new provisions expand the previous powers to allow the Agency to carry out its proposed role in monitoring activities at earlier stages of food production and without the need for further secondary legislation; to allow authorised persons to make observations; and to require disclosure of certain relevant records relating to employees.

36.     Examples of the types of observations that the Agency might carry out are surveillance programmes to investigate the presence of pathogens that could carry risks for human health levels; or of a particular contaminant, such as lead, in certain types of foodstuffs; or surveys of hygiene practices in a certain type of food business.

37.     It should be noted that the powers in these sections relate to the gathering of information of a general and representative nature and not to the investigation of individual complaints or failures for which the enforcement powers in the Food Safety Act 1990 and corresponding Northern Ireland legislation and other powers will continue to be used by enforcement authorities. Since the observations made under this section are not intended for enforcement purposes there is no requirement that these powers be used to gather evidence in accordance with the kind of safeguards contained in the Police and Criminal Evidence Act 1984, and thus any information obtained could not in general be used directly for the purposes of food law enforcement. Where apparent problems were identified in the course of a surveillance exercise, the information gathered would normally be passed to the relevant enforcement authorities who would then take a decision on the need for further investigation.

Section 11: Power of entry for persons carrying out observations

39.     Subsection (1) provides for observations to be undertaken on the Agency's behalf, by an authorised person, where the Agency is satisfied that they are qualified to do the work. The authorisation for powers of entry to be used must specify the nature of the observations to be carried out. Subsection (2) requires that the decision to grant any authorisation to exercise powers of entry must be taken by the Agency itself, or a committee, subcommittee or individual member, and not by members of the Agency's staff.

40.     Subsections (3) to (5) describe the powers to enter premises, take samples and inspect records, and the conditions under which they must be exercised. The authorisation to exercise powers of entry may include limitations, including requiring any authorised person entering premises to follow any necessary food safety precautions. Samples may include samples from food sources which are defined in the Food Safety Act 1990 as any growing crop or live animal, bird or fish from which food is intended to be derived. Under subsection (5), the authorised person is required to provide a receipt on request for any sample taken or document copied.

41.     Subsection (6) provides for access to health records of people employed in food production, but only where that information is relevant to food safety. For example, under certain of the food hygiene directives, employers are required to obtain medical certificates assessing their employees' suitability, on health grounds, to be employed in the handling of food, so as to ensure they do not constitute a general risk to public health. This provision would not, however, allow the Agency general access to an individual's personal health records.

42.     Subsection (7) makes it an offence for any authorised individual to disclose any information he or she has obtained during the course of carrying out observations about any trade secret, other than in the course of his or her duty. This provision does not in any way restrict the provision of any information to the Agency, or affect the Agency's own powers to publish information. It deals with the kind of situation where an authorised person entering premises as part of a duty to carry out observations obtains commercially confidential information and then, acting in a private capacity, passes that information on, for example, to a commercial rival of the business. As such it parallels section 32(7) of the Food Safety Act 1990 and corresponding Northern Ireland legislation.

43.     Subsection (8): this provision is similar to that contained in the Food Safety Act 1990 and corresponding Northern Ireland legislation. The current (November 1999) maximum value of a level 5 fine is £5,000.

Section 12: Monitoring of enforcement action

44.     This section empowers the Agency to monitor, set standards for and audit the performance of enforcement authorities (which are defined in section 15) in carrying out food law enforcement.

45.     Subsection (2) gives the Agency power to set standards against which to monitor performance. Normally, these would be set in respect of enforcement authorities generally, although the power extends to the setting of standards for individual authorities, should this be necessary.

46.     Under subsection (3) the Agency must publish (as part of its annual report) information about its own performance as an enforcement authority corresponding to the information it would obtain about other authorities. At present, for the most part, this would relate to its role in enforcing the provisions of the various meat hygiene regulations through the Meat Hygiene Service (which will become part of the Agency) and in the enforcement of dairy hygiene regulations. The information published must include details on the Agency's performance in relation to any standards it has set to apply to its own enforcement activities which might, for example, be contained in a code of practice or equivalent; and any particular objectives it has set in its section 22 statement of objectives and practices. During consideration in the House of Lords, the Government gave a commitment that these would include objectives relating to the principles of better regulation.

47.     The general publication of audit reports by the Agency is dealt with in section 19.

48.     It is envisaged that a reasonable period of time would be provided for an enforcement authority to report back under subsection (5)(b) on its response to a report on its performance that was issued under subsection (4). This would take account of the need for local authorities to consider their response in the course of their usual committee cycle.