The Specialist Cheesemakers Code of Best Practice

Food Law inspections and your business

FOOD LAW INSPECTIONS

WHAT YOU ARE ENTITLED TO EXPECT

EHO AND TSO POWERS

THE PURPOSE OF INSPECTIONS

‘MINDED TO’ AND IMPROVEMENT NOTICES

EMERGENCY PROHIBITION NOTICES

IF YOU THINK AN INSPECTION IS NOT FAIR

FURTHER ADVICE

THE ROLE OF THE DAIRY HYGIENE INSPECTORATE

FOOD LAW INSPECTIONS

9.1 The Food Safety Act 1990 and Regulations made under it aim to make sure that all food offered to the public is safe to eat and properly described. Local authority Environmental Services and Trading Standards Departments have a role in helping cheesemakers to produce safe food and to meet other responsibilities. Environmental Health Officers (EHOs) and other qualified officers check on food safety and hygiene; Trading Standards Officers (TSOs) on food composition and labelling including added water and residues.

9.2 However, EHOs in some areas such as Metropolitan and London Boroughs also carry out food standards inspections, and this is also the case in unitary authorities. In Scotland, EHOs have responsibility for enforcement of food hygiene, food composition, and labelling regulations.

9.3 EHOs and TSOs (EHOs in Scotland) have the right to enter and inspect food premises at all reasonable hours. They do not have to make an appointment and they will usually come without advance notice. They carry out routine inspections and may also visit as a result of a complaint. How often routine inspections happen depends on the potential risk posed by the business and its previous record. Some premises may be inspected at least every six months, others much less often. This section explains what to expect when your business is inspected under the Act, and what to do if you think the outcome of an inspection is wrong or not fair.

WHAT YOU ARE ENTITLED TO EXPECT

9.4 You are entitled to expect the following from officers:

• a courteous manner;
• to be shown identification;
• an explanation of the purpose of the visit;
• feedback from any inspection, such as information about hazards which have been identified and guidance on how they could be avoided;
• a clear distinction between what the officer is recommending you do because it is good practice, and what you must do to comply with the law;
• to be given the reasons in writing for any action you are asked to take;
• where there is an apparent breach of the law, a statement of what the law is;
• reasonable time to meet statutory requirements, except where there is an immediate risk to public health;
• to be told the procedures for appealing against food authority action.

EHO AND TSO POWERS

9.5 Environmental Health and Trading Standards Officers have powers to:

• take samples and photographs, and inspect records;
• write to businesses informally asking for problems found to be put right;
• serve improvement notices after the ‘minded to’ provisions have been satisfied (see below) where breaches of the law are identified;
• detain or seize suspect foods;
• where there is an immediate risk to consumers, serve an emergency prohibition notice which forbids the use of the premises or equipment (such a notice must be confirmed within 3 days of issue by the Court);
• recommend a prosecution in serious cases (if the prosecution is successful, the Court may impose fines, prohibitions on processes and the use of premises and equipment, and possibly imprisonment).

THE PURPOSE OF INSPECTIONS

9.6 There are two main purposes of hygiene inspections carried out by EHOs. Initially, the officer should seek to identify risks arising from the activities carried on and the effectiveness of the cheesemaker's own assessment of hazards and control of risks. Secondly, they should identify contraventions of the Food Safety Act 1990 and the relevant food hygiene and processing regulations and seek to have them corrected. Officers should also be prepared to offer advice where this is appropriate or is requested. They should also encourage cheesemakers to adopt good hygiene practice, particularly that set out in this code.

9.7 On completion of an inspection an EHO or TSO should discuss with the cheesemaker, or their representative, a summary of the matters, which in the Officer's opinion, breach the requirements of the legislation, and any advice on good practice the Officer may wish to give. After a programmed inspection and, where appropriate after other inspections, the officer should report back in writing. The officer should also ensure that there is a clear distinction between matters which are necessary to meet statutory requirements and those which are recommended as good hygiene practice.

9.8 The EHO is empowered under the Act to take action to detain food pending investigation if there is suspicion that food is contaminated or is likely to cause food poisoning or any communicable disease or the food fails to comply with the requirements of the Act. Where the food is considered likely to pose a risk to public health the officer may act on information received without an inspection of the food. The Officer can order the food to be detained on the premises or not to be moved, except to a specified place, allowing up to 21 days for investigation. At the end of that period, the Officer must either release the food or take action, e.g., go before the Magistrates’ Court (the Sheriff in Scotland) to ask for destruction of the food.

9.9 When carrying out inspections or other visits, the EHO must follow statutory codes of practice. The codes cover everything from how samples of food must be taken to the issues which need to be considered before taking any form of action. If you are in any doubt about an officer’s behaviour or actions, you should ask them to explain. If you are still dissatisfied, contact their manager for an explanation.

‘MINDED TO’ AND IMPROVEMENT NOTICES

9.10 When an EHO has reasonable grounds for believing that a cheesemaker is failing to regulations, the officer may serve an Improvement Notice on the cheesemaker. Such a notice requires necessary measures to be taken to remedy the defects within a given period.

9.11 However, before doing this, the EHO must, by law, serve a ‘minded to’ Notice which will advise the cheesemaker of the proposed enforcement action. This ‘minded to’ Notice will give the cheesemaker time (usually a minimum of 14 days) to make written or oral representations to the enforcement authority about the proposed enforcement action. If oral representations are to be made, the request to do so must be made within the time set out in the ‘minded to’ Notice, which is usually a minimum of seven days. If oral representations are made, then the officer should arrange to meet the cheesemaker at their office, or at the cheesemaker's premises. The officer's manager or other senior officer, should be present. The cheesemaker may take an adviser to this meeting, such as a representative of the SCA.

9.12 After the meeting or, on receipt of written representations, the officer must take a fresh and fair look at the proposed action in the light of the representations made by the cheesemaker or retailer. This fresh look may be carried out in conjunction with the Officer's Manager.

9.13 Once the representations have been considered and the officer remains of the view that an Improvement Notice is appropriate, then it may be issued. The requirements of the Notice should give an indication as to why any representations have been rejected.

EMERGENCY PROHIBITION NOTICES

9.14 The EHO is also empowered under the Act to serve an emergency prohibition notice where it is considered an imminent risk to health exists concerning the use of premises or piece of equipment, process or treatment for the purposes of a business. This notice will require the immediate closure of the premises or immediate prevention of use of a piece of equipment, particular process or treatment. The officer will then apply to the Court for an emergency prohibition order. The Magistrates' Court (the Sheriff in Scotland) is empowered, where a risk to health is involved, to make a prohibition order to prohibit premises from being used for all or particular kinds of food; or to prohibit a person from carrying on or managing a food business of any or of a particular kind.

9.15 You should note that the ‘minded to’ Notice has no effect on the issue of an emergency prohibition notice. You should also note that under the Act, failure to comply with an improvement notice or a breach of a prohibition order is a criminal offence.

IF YOU THINK AN INSPECTION IS NOT FAIR

9.16 If you think that the outcome of an inspection is not fair:

• make use of the local authorities complaints procedure;
• contact the SCA for advice;
• contact your local councillor if disagreement still remains;
• if you think your local authority is applying the law in a different way from other authorities, you can seek advice from the Local Authorities Co-ordinating Body on Food and Trading Standards (LACOTS) through the SCA. Cheesemakers in Scotland with concerns about inconsistency relating to interpretation and enforcement of the law at the production part of their operation should initially seek advice from the Scottish Food Co-ordinating Committee (SFCC), either through a trade association or the Food Authority;
• you have the right of appeal to a Magistrates' Court (the Sheriff in Scotland) against an improvement notice or a refusal by a local authority to lift an emergency prohibition order;
• a Magistrates' Court or Sheriff must confirm the emergency closure of a business or the seizure of food. If Magistrates decide premises have been closed without proper reason, or food has been wrongly seized or detained, you have a right to compensation.

FURTHER ADVICE

9.17 Your Food Authority is ready to help if you need any advice on food safety or labelling. Closer partnership between food businesses and local authorities means better public protection and fair trading.

THE ROLE OF THE DAIRY HYGIENE INSPECTORATE

9.18 In England and Wales the Dairy Hygiene Inspectorate (on behalf of MAFF/WOAD) is responsible for enforcing provisions in the Regulations concerning registration and hygiene of farms producing milk for sale. It operates in a similar way and follows similar procedures to EHOs.

9.19 Dairy Hygiene Inspectors carry out unannounced inspections with the frequency depending on the hygiene standards of the premises and other risk factors. Charges are made for inspection visits to farms producing cows’ milk (including follow up visits). During visits Inspectors will discuss problems with you and advise on solutions. They can deal with contraventions in a number of ways. These may range from issue of a self certification form where contraventions are minor, to cancellation of registration where there is a long standing and major concern with hygiene. They can also issue improvement notices and before doing so would issue ‘minded to’ notices, in the same way as EHOs do.

9.20 The Dairy Hygiene Inspectorate operates according to Citizen’s Charter standards and publishes a Code of Practice and Statement of Service (see Useful Publications). Officers will deal promptly and politely with any concerns you have arising from inspections. If you think that the results of an inspection are unfair you can take the matter up with the Regional Dairy Hygiene Inspector, the Dairy Hygiene Inspectorate Manager, and the Citizen’s Charter Unit in MAFF. Ultimately you have the right of appeal to the Magistrates’ Court against cancellation of registration. The SCA can also offer advice. The Dairy Hygiene Inspectorate follow MAFF Guidelines. They also have their own internal procedures aimed at ensuring consistency of enforcement throughout the country.

Specialist Cheesemakers Association    17 Clerkenwell Green    London EC1R 0DP

Tel: 020 7253 2114    Fax: 020 7608 1645    Email: info@specialistcheesemakers.co.uk