A BRIEF HISTORY OF FOOD SAFETY LAW

FAcebook logopngINTRODUCTION

So, you are aware that in England, Wales and Northern Ireland EHO officers rate your premises using the food hygiene rating system and provide a score from zero to five (a different system is used in Scotland). You are also aware the ratings are based on food safety legislation and you may be familiar with some of this legislation, such as the Food Safety Act 1990.

But when did food safety legislation begin? How has it developed over time? How much has it changed over the centuries?

The answer to the last question is ‘massively’, although in some respects ‘not so much’.

This blog charts the development of food legislation in the UK. The information is taken from a variety of resources and a link to those resources is provided at the end for further reading.

The focus is on English Law, however most points relate to the whole of the United Kingdom.

We examine how social, political and economic pressures have contributed to the development of food safety laws and briefly discuss enforcement of laws throughout the centuries ….. including the use of leather trousers.

The four principle sources of law in the UK are (at the time of writing); legislation, common law, European Law and the European convention of human rights. There is no single body of documents that covers all of UK law.

We focus mainly on Legislation and European Law with a brief nod towards common law.

Common law comes into being when a decision made at the highest level; (senior appellate courts) set a precedent in law which must be followed in future cases to ensure fairness.

The two most senior appellate courts are the Court of Appeal and the Supreme Court and they only hear appeals from other courts (High Court, Magistrates Court and Crown Court).

 

IN THE BEGINNING…….

To some extent, laws relating to food have existed since ancient times.

Way back in 6000 BC there is documented evidence on the problems of food spoilage and the risk of transmitting disease to humans. At the time farming was limited to subsistence level with only enough food produced to feed the immediate family, and in general there was no need for consumer protection laws.

 

The Bible references foods that should or should not be eaten. For example, pigs, hares and camels were considered unclean. Only fish with scales and fins should be eaten (so no oysters) and many birds (eagles, owls and vultures) were prohibited.

Fast forward to the present day and all wild birds in the UK are protected under the Wildlife and Countryside Act 1981 and (except for wood pigeon), they can never be sold for human consumption. OK, so it’s unlikely you’ll ever find wild birds on a restaurant menu …… except in 2011 a pub on the Isle of Wright WAS advised by police to take Rook salad off their menu.

In ancient Egypt, laws required the labelling of wine to include the name and location of the producer and the estate, together with the type of wine, it’s vintage and an assessment of its quality. Look at the wine section of your local supermarket and you realise this hasn’t changed greatly.

In Ancient Rome consumer protection laws aimed to minimise fraud or bad practice.

THE FIRST ENGLISH LAWS

Today, legislation aims to ensure that all food is safe, however early legislation focused on specific foods such as wine and grain.

The first food law in British history began in 1266 during the reign of Henry VIII and specifically focussed on the quality, weight and price of bread and beer. Bread prices were dictated by the price of raw products and fines for over charging were huge. As a result, bakers regularly gave away extra loaves to ensure they complied; hence the expression ‘a baker’s dozen’.

This law was the Assize of Bread and Ale. In terms of testing quality, this was largely subjective. However, one tactic used by Ale Connors (early equivalent of Customs and Excise) was to pour the beer on a wooden bench and sit their leather-breached back sides on it. After about a minute the inspector would stand up and if the beer stuck to the leather it was considered good quality. OK, some aspects of inspection HAVE changed.

Over the next few hundred years adulteration continued and increased. The only attempts at regulation were conducted by Guilds but their influence was limited. They were only present in City’s and their intentions were to protect the market rather than the consumer.

Later, Acts of Parliament were introduced to maintain the safety and quality of specific foods.

For example, the adulteration of Tea Acts 1730 and 1776 which prohibited using sloe, liquorish or previously used tea in products for sale.

 

INFLUENCE OF THE INDUSTRIAL REVOLUTION

During the industrial revolution at the turn of the 19th century workers migrated towards cities and absenteeism through consuming adulterated food became a significant issue. In the 1850’s extensive sampling of food and drink (by Thomas Wakley, a surgeon and MP, and physician Arthur Hill Hassall) highlighted the scale of the problem, including foods that were actually poisonous. To whiten bread alum and chalk were added to the flour whilst mashed potatoes, plaster of Paris, pipe clay and even sawdust were added to the loaves to increase the weight.

Brewers would add bitter substances including strychnine to ‘improve’ the taste and reduce the price of hops.

In 1861 Dr Edward Lankester delivered a lecture to the Royal Society of Arts claiming that 87% of bread and 74% of milk sold in London was adulterated.

Therefore, in 1860 a more general food safety law was passed; the Adulteration of Food and Drink Act made if an offence to knowingly sell food which endangers health or is adulterated in any way. Consider the term ‘food which endangers health’; in some respects, the general aim of the law has not changed greatly in the last 150 odd years.

It is also worth noting that since the 18th Century it has been an offence under common law to provide food that is “not fit for human consumption”. Again, this term will familiar to anyone who has studied level three food safety.

It is hoped that consistency in applying legislation has improved over the years.

When the adulteration act was supplemented in 1862 and 1872 inspectors were appointed to analyse food. Unfortunately, over-zealous prosecutions included selling mustard which also contained turmeric and chillies. The government select committee, on investigating such prosecutions stated the focus should be on retailers who tampered with food in order to mislead or deceive customers. One example was the Licensing Act 1872 which outlawed the addition of salt to beer, which had been used to increase thirst and therefore consumption and, obviously profit.

 

 

 

 

THE INTRODUCTION OF LABELLING

The Sale of Food and Drugs Act 1875 repealed the Act of 1860 and further regulations familiar with us today were born. This included categorising adulteration practices into those injurious to health and those which affected the quality of the food (not of the nature, substance and quality).

For the first time the inclusion of ingredients would have to be included on the label which would have to be ‘distinctly and legibly written or printed’.

In the early 20th Century food borne illness became more recognised and statutes relating to specific foods were introduced, including the Milk and Dairies Act 1914. This was the first Act to legislate on the production and sale of milk but was not implemented until 1925.

Additional pieces of legislation were passed relating to labelling: for example, the Food and Drugs Act 1938 introduced penalties misleading or false advertising.

During World War Two, rationing and a general shortage of food increased the opportunity to gain profit through adulteration and 1943 regulations were introduced stating that pre-packed foods should provide the name and address of the packer, the common or usual name of the food, and the ingredients (but not the quantities).

The Food and Drugs Act 1955 consolidated many of the previous Acts and Regulations and provided authorised officers with wide ranging powers including the ability to examine food at all reasonable times and to seize and detain foods.

Whilst so many aspects of food safety law continue to be familiar with us today it wasn’t until 1968 that legislation for food and medicines was divided with the introduction of the Medicines and Pharmacy Act.

The Trade Descriptions Act of the same year also tightened controls on product description, claims and price.

 

THE EUROPEAN UNION

In 1973 the UK joined the European Communities, later to become the European Union and thus another major event impacted on UK Law. As it currently stands, the vast majority of English Food Laws take their format and content from the EU although another potentially seismic shift is on the horizon as we prepare to leave.

 

 

EU REGULATIONS automatically became part of English law whilst DIRECTIVES require further implementation by individual member states. Initially the most common format was directives and in recent year’s regulations have become prevalent.

In basic terms, as we discuss below; EU issue directives and regulations and the UK updates and implements its own laws to ensure compliance.

There have, of course been issues with applying the directives, the most famous of which being known as the ‘Metric Martrys’. In 1979 the EU Metrification Directive was introduced to formalise measurements across all member states.

The price marking order (UK law) implemented the EU Directive and required the price per unit to be displayed as per kilogram, metre etc and breach of this was a criminal offence.

Some grocers and market traders resisted this change and continued to display prices as pounds and ounces. Following conviction of this offence they appealed, and their appeal was upheld. It was clear that imperial measurements were not illegal at the time and it was perfectly acceptable to use both methods during the transitional period. This was found to be over-zealous application of EU legislation…… not unlike the fines for placing turmeric in mustard back in the late 1800’s.

Notable food safety concerns in the 90’s exposed weaknesses regarding EU legislation. Firstly, there was the crises involving BSE or ‘mad cows disease’. Scientists suggested a link between eating beef consumption and the human equivalent of BSE; the public became concerned they could contract the illness by eating beef of even beef-derived products such as gelatine. Because of EU membership many of the decisions to be made on controlling the disease was outside national control. It was down to the EU to reassure the public and in this they failed.

The second catalyst for change was concern over genetically modified organisms. Again, scientists reasoned that because eating such foods could damage the intestines of rats it could be equally dangerous for humans to eat. Consumers groups protested, claiming the public were inadequately informed on such food and later it transpired there were a series of loopholes that allowed genetically modified foods onto the market without disclosure.

These were the catalyst for increased focus on food safety.

 

The first major food act introduced after joining the EU was the Food Act 1984, however a much more significant alignment with the EU was provided with the Food Safety Act 1990.

This Act provides the framework from which all food safety legislation in the UK is written and remains the main source of domestic food law. There have been various amendments to the Act in the intervening years; some changes have been minor, others have had major effect on how food businesses are managed. Some of these are discussed below:

1999: The Food Standards Act created the Food Standards agency (FSA) which shared responsibility for food safety with the secretary of state. Some functions were delegated to Scotland and Wales whilst Northern Ireland has its own similar system.

EU Legislation: Regulation 178/2002 contains the general principles of food safety and food law which businesses must comply with. Some of the key provisions include Safety (food that is injurious to health or unfit for human consumption), labelling and advertising that should not mislead the public, traceability, imports and exports.

UK Legislation: The General Food Hygiene Regulations 2004 amended the Food Safety Act 1990 to bring it in line with this legislation.

 

EU Legislation: Hygiene of Foodstuffs Regulation (EC) No 852/2004. This stated that all businesses in Europe were required to have a food safety management system based on HACCP principles and would have to come into effect from January 2016.

UK Legislation: In the UK this legislation was initially implemented through the Food Hygiene (England) Regulations 2006, Food Hygiene (Scotland) Regulations 2006 and the same for Wales.

There have been further, minor amendments to these regulations with the most recent being in 2013.

 

EU Legislation: The Food Information for Consumers Regulations 1169/2011 had a major impact on restaurants due to the requirement to provide allergen information for non pre-packed food.

UK Legislation: The above was implemented in the UK by the Food Information Regulations which came into force on the 14th July 2014.

 

IMPACT ON LEAVING THE EU.

In August 2018 a CIEH article outlined seven potential threats to food safety on leaving the EU. Their key point is that decreased access to EU produce increase the need to source from further afield including America;

1.   Chlorine washed chicken imported from the US.

2.   Pesticides; these are sprayed more widely and frequently in the US than in the UK or EU.

3.   Ractopamine is used to increase muscle and reduce fat in pigs. It is outlawed in the EU due to insufficient evidence of its safety for pork eaters. However, in the US the benefits of use are considered to outweigh the risks.

4.   Chicken Litter; Accepted practice in the US of including chicken faeces in animal feed. See concerns over BSE above.

5.   Food Additives: more widely used in the US than the EU.

6.   Chlorinated water: EU legislation allows the washing of salad, however studies have found it to be completely ineffective in reducing bacteria. Salad and vegetable washing is common in the US and other countries and this may raise concerns regarding long term consumption of such chemicals.

7.   Food Labelling: US requirements for food labelling are considerably less than the EU.

 

In April 2018 the House of Lords produced a library briefing on the subject. “As a general rule, the same rules and laws will apply on the day after the UK leaves the EU as before”.

Therefore, in the immediate future there will be very few (if any) changes but what about the longer term?

The library briefing goes on to say….. “A large proportion of food safety risk assessment is carried out by the European Food Safety Authority (EFSA). Once risk has been assessed, decisions about how to manage risk are taken by the European Commission….”

“After the UK leaves the EU, it will cease to automatically be a part of ESFA and other EU food safety bodies. In a recent statement, the Government said that “options for the future of risk assessment and scientific advice in the UK are currently being developed by the Government ….”

One potential area of development is an increased focus on long term health. Current legislation focuses mainly on ‘dangerous’ foods; foods that impact on our health in the immediate, short or long term. However, the wording ‘injurious to health’ could also include ‘harmful’ foods such as those with poor nutritional quality.

It is difficult to predict which social, political or economic events will, in the future act as catalysts for further development of legislation.

In short, we’ll have to wait and see.

 

Links to resources:

The Legal system of the United Kingdom.

https://www.cilex.org.uk/about_cilex/about-cilex-lawyers/what-cilex-lawyers-do/the-uk-legal-system

The history of English law is largely taken from two resources:

file:///C:/Users/User/Desktop/Blogs/History%20of%20FS%20law/9781849466707sample.pdf

https://fstjournal.org/features/history-uk-food-law

 And a third charts the development of the Codex Alimentarius: www.fao.org/3/w9114e/w9114e03.htm

It is illegal to eat wild birds (even Rook Salad): https://www.bbc.co.uk/news/magazine-14631856

The fight against adulteration: https://eic.rsc.org/feature/the-fight-against-food-adulteration/2020253.article

Additional resources used:

http://www.artisanfoodlaw.co.uk/introduction/chronology-of-food-law/introduction-chronology-of-food-law

 

Additional resources used when discussing current legislation:

The Food Safety and Hygiene (England) Regulations 2013: https://www.legislation.gov.uk/uksi/2013/2996/note/made

General Food Law: https://www.food.gov.uk/business-guidance/general-food-law

Implementation of 852/2004: https://app.croneri.co.uk/topics/ec-regulation-8522004-general-food-hygiene-requirements-businesses/indepth

National legislation: https://www.food.gov.uk/business-guidance/general-food-law

Food Information for consumers: https://ec.europa.eu/food/safety/labelling_nutrition/labelling_legislation_en

Leaving the EU House of Lords Library Briefing: https://researchbriefings.parliament.uk/ResearchBriefing/Summary/LLN-2018-0050

CIEH impact on leaving the EU: https://www.cieh.org/media/blog/2018/7-threats-to-food-safety-after-brexit/