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New Sentencing Guidelines start to bite for food hygiene

This week ASDA received an unprecedented fine of £664k for a prosecution relating to a mouse infestation. This compares to a fine of over £414k for a rat infestation in two 99p Stores, a fine of £1.5m following the death of a diner for Mitchell & Butler and a fine of £1m for an outbreak of salmonella effecting 40 of Cadbury’s customers.

This is a landmark fine for a pest issue. Not only does it reinforce our view that prosecutions of large corporates for pest infestations are on the increase (we have seen more prosecutions in the last eight months than over the last five years put together), but also demonstrates that the courts are increasingly willing to use their new found powers under the Sentencing Guidelines for food hygiene offences.

The challenges of pest cases

It is very hard for food businesses to entirely eliminate pest activity and infestations are incredibly hard to eliminate once they take hold.  To an extent, businesses can be hostage to their location (Central London & Birmingham being particularly challenging), the age and layout of their property, the cleanliness of their neighbours, the robustness of the advice of their pest control contractors and the reactiveness of their staff.

For the EHO they are easy and cheap convictions.  A few photographs of mouse droppings on the floor and pictures of food debris under the fridge coupled with low level cleaning issues at hard to reach areas is often all that is needed to obtain a conviction.

The circumstances of the ASDA case are not unusual in relation to mouse infestations; droppings were found on the floor and in bags of flour as well as a dead mouse; photographs  from the prosecution showed a build-up of grease at floor and wall junctions. It was clear that ASDA was trying to deal with the problem as pest control contractors had visited the site over 72 times.

Droppings on a cheese roll were eaten by a customer and this was clearly an aggravating factor, contributing to the substantial fine.

Nevertheless, it is a sobering thought for large food businesses that fines of this level can and will be imposed. 

Additional Steps

The weakest areas in due diligence systems which we see relate to poor support from pest control companies and a lack of a robust system for dealing with high-level infestations.

  1. Pest Control Contractors – it is not enough to simply engage them; you must engage with them.  This applies at site and Head Office. Over reliance on pest controllers is one of the biggest mistakes food businesses make.  It is important that staff on site speak to the pest contractor about their findings and recommendations on every visit. Although this is something which company’s procedures usually require, all too often the manager is not available after an inspection or the contractor leaves without speaking to anyone – leaving a printed or hand written report.  It is also essential to action every recommendation they make as soon as possible and ensure that they record this on every revisit until they confirm the activity has gone.  Chase for revisits if they are not carried out within contractual time frames and leave no scope for contractors to criticise remedial cleaning or proofing. Dialogue with the pest contractors head office to review activity across the estate is essential to evaluate problem sites and take remedial action as soon as possible. It can also head off issues if there are complaints from staff at site about poor service.
  2. Cleaning – in the event of activity, revised cleaning schedules must be put in place that are tailored to the particular problem. Sites cannot rely on the normal cleaning schedule. In our experience,  standard cleaning logs do not hold weight in the event of an unusual event like an infestation
  3. Additional measures – consider additional measures, such as reducing stock held, removing food from the problem areas each night and restocking each morning, deep cleans throughout and voluntary closure if the infestation is prolonged and so severe that there is an imminent risk to health and ultimately detection and forced closure by the local authority.
  4. Escalate – ensure that there is clear guidance on when activity is to be escalated beyond local level and to raise issues when it is clear that pest activity is increasing. Staff need to be ready to challenge poor behaviours by contractors and feel empowered to raise it if they are not getting a satisfactory service such as missed appointments or lack of dialogue.

If you would like further information or support please do not hesitate to contact Hilary Ross or Dominic Watkins

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.

Hilary Ross

Executive Partner (London) - Head of Retail, Food & Hospitality

Recognised by The Lawyer as one of the UK’s Top 100 lawyers, I advise clients on compliance and challenges across the EU in relation to products, systems and safety.

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.