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Enforcing the Food labelling changes - gazing into the crystal ball

When it was announced that the enforcement regulations for the new food labelling laws (Food Information to Consumers Regulations (FIC)) would contain far fewer criminal offences many including Which? raised concerns. They were concerned, for example, that the new laws decriminalised selling food after its use by date. Dominic Watkins, head of the Food Sector, takes a look at the reality of the situation and how much of a brave new world it really is.

Whenever there is change, there are usually challenges about why and if it makes things better.  In a culture of regulation and criminalisation of regulatory breaches any move that appears to lighten that load is likely to be viewed with scepticism.  The offences under the new food labelling regulations face that challenge.

Under the old labelling regime there were a wide range of criminal offences available to enforcers, perhaps most famously, the offence of selling food after its use by date.  The new regime by contrast has just one type of offence - failures in relation to allergens (there are actually four offences listed but they all relate to allergens).   In addition to this the enforcer’s power to issue an Improvement Notice is extended to almost every provision in FIC.

So, the use by date offence is gone, but does this really matter? There is a strong argument that it doesn't as what we have now is a healthier, more collaborative regime using Improvement Notices to direct businesses as to how to achieve compliance when discussion doesn't work.  Of course, there are those businesses who will not comply and for those, criminal prosecution remains an option as it is still an offence not to comply. 

In these times of greater collaboration between the regulated and the regulators through the Primary Authority scheme, this makes a great deal of sense and it must assist all to streamline the regulatory regime and avoid unnecessary prosecution clogging up the courts.

This does not mean that offences shouldn’t be prosecuted and indeed can’t be prosecuted, but the offences are now more general rather than related to specific provisions.

This means that while there are specific provisions for offences in other legislation, the more general offences are still available and beyond this, the regulator still has the option of using wider food law to prosecute for offences relating to issues of safety (i.e. the offences created by the UK implementing legislation relating to Regulation 178/2002).  This could capture use by dates if a regulator so wished. 

Additionally, offences of misleadingness or misdescriptions exist in several locations, including both the Food Safety Act and the domestic Regulations creating offences under Regulation 178/2002.

The implementation of FIC has created many challenges, but once the initial scepticism subsides, we think people will agree that this is not one of them.   This is one change that we hope will assist the streamlining of the regulatory regime and avoid disproportionate and unnecessary prosecutions clogging up the courts. 

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

Dominic Watkins

Partner - Head of Food Group

I am Head of DWF’s internationally renowned food sector group as well as being Head of Regulatory in London.