What does Due Diligence Mean in Food Hygiene?

Local authorities carry out a range of proactive and reactive interventions at food establishments throughout the year. These include food hygiene and food standards inspections but also other activities such as sampling visits, full and partial audits, and surveillance and intelligence gathering. Their purpose is to protect consumers through the assessment or investigation of business compliance with relevant food legislation.

The total number of establishments subject to at least one type of enforcement action by the local authorities for food hygiene non-compliance in 2019/2020 was 156,066. For food standards non-compliance in 2019/2020 the number of establishments subject to at least one type of enforcement action was 25,553.

The total number of complaint investigations in 2019/2020 about the safety of food or the hygiene at food establishments was 70,771. The level of “broad compliance” increased marginally from 95.2% in 2018/19 to 95.8% as at 31 March 2020.

Enforcement actions are the steps, measures and sanctions a local authority can take in response to a food establishment’s failure to comply with food law.

Food establishments may be subject to a range of enforcement actions at any one time, including:

• Voluntary closure.
• Written warning.
• Seizure, detention and surrender of food.
• Suspension/revocation of approval or licence.
• Hygiene emergency prohibition notice.
• Hygiene prohibition order.
• Simple caution.
• Hygiene improvement notice.
• Remedial action and detention notice.
• Prosecution.

Significant penalties can be imposed by the courts for food safety offences. Offences dealt with in the magistrates’ court, or in Scotland by the Sheriff, carry a possible fine up to the statutory maximum for each offence, and a possible prison sentence of up to six months.

For more serious offences the maximum fine is £20,000. If the offence is dealt with in the Crown Court, the court may impose unlimited fines and up to two years’ imprisonment. Court costs are also incurred if found guilty.

What is due diligence?

When offences of strict liability were introduced into trading legislation about 150 years ago, Parliament recognised that a failure to comply with the law which was not intended but which resulted in automatic conviction, would be too harsh. A way of reducing the impact of the absolute offence and of bringing some natural justice into the enforcement of criminal trading law was required.

Honest traders who made an innocent mistake or who had a bit of bad luck, should not be convicted provided they could show that they had done all that a competent person in their trade could do to avoid the offence. In other words, that they had demonstrated due diligence.

The defence was established in other regulatory sectors, such as trading standards and in some health and safety legislation, and was incorporated into the Food Safety Act 1990 in order to ensure a degree of fairness for the defendant.

What does due diligence mean in food hygiene?

The principal defence against prosecution for anybody accused of a breach of food safety regulations under the Food Safety Act 1990 and the Food Hygiene (England) Regulations 2013 is that of “due diligence”. It is designed to protect businesses against prosecution in cases where they have taken all reasonable steps to avoid committing an offence.

In criminal cases the burden of proof of guilt lies with the prosecution. They must prove beyond reasonable doubt that the accused committed the offence. The defence of due diligence reverses the burden of proof; it is for the accused person to prove that on balance of probability they have fulfilled the requirements of the defence and ought to be acquitted.

Proof requires, in most cases, more than just verbal evidence of the precautions taken by the defendants. There must be a system which is written down and documentary proof that the checks, tests, inspections and supervision necessary to avoid the charge of the offence have been regularly carried out.

However, it has been held that the extent and level of checks carried out depends on the size and resources of a business. The system that would be expected from a large national business would not be expected from a small business. Each case must be judged on its merits, that is, what is reasonable in all the circumstances.

“All reasonable precautions” means that everything that could be anticipated by a person skilled in the trade or profession and which might lead to the charge of an offence must be identified and adequate controls put in place. The word “all” is important here. All due diligence means that the control system must be seen to be operating, must be checked and, where necessary, rectified. The checks must be recorded so that they can be used in evidence if necessary.

How to demonstrate due diligence in food hygiene?

In terms of food safety, your business must prove that it has done everything reasonably possible to prevent food safety breaches from occurring. One of the most effective ways to show due diligence in a food business is through the records of your food safety system; mainly records of your practices and Hazard Analysis and Critical Control Point (HACCP) procedures.

These will demonstrate that you follow the required safety procedures to ensure that food is safe to sell or serve. The type of HACCP system that your organisation requires may depend on the size and activities carried out. HACCP is a way of managing food safety hazards.

Food safety management procedures should be based on HACCP principles which involves:

• Looking closely at what you do in your business, what could go wrong and what risks there are to food safety.
• Identifying any critical control points in the areas your business needs to focus on to ensure those risks are removed or reduced to safe levels.
• Deciding what action you need to take if something goes wrong.
• Making sure that your procedures are being followed and are working.
• Keeping records to show your procedures are working .

To demonstrate due diligence, every food business should ensure their records cover the following in some way or another:

• Your chosen HACCP system.
• Your cleaning schedules.
• Evidence that your workplace environment is compliant.
• How you prevent cross-contamination.
• Waste disposal.
• Pest control.
• Your use of suppliers.
• Records of fridge and freezer temperatures.
• Labelling procedures.
• Evidence of staff training.

It is important to have food safety management procedures that are appropriate for your business; therefore, it is important to carry out regular HACCP risk assessments to identify your requirements.

Grounds for the defence of due diligence are established if any of the following circumstances exist:

• The offence was caused by another person not under the preparer or importer’s control or by reliance on information supplied by another person.
• The person either carried out reasonable checks on the food or relied on checks carried out by whoever supplied the food.
• The preparer or importer did not know or had no reason to suspect at the time that the act or omission would amount to an offence.
• The offence was caused by another person not under the seller’s control or by reliance on information supplied by another person.
• The sale or intended sale was not done under the seller’s name or trademark.
• The seller did not know or had no reason to suspect at the time that the act or omission would amount to an offence.

To use these elements in a defence the defendant has to demonstrate that they had no control over the other person.

What is the law surrounding food hygiene?

The Food Standards Act 1999 established the Food Standards Agency as a statutory government body covering all aspects of food safety and hygiene in England, Wales and Northern Ireland. The Act sets out the main goal to protect public health in relation to food. It gives the Food Standards Agency the power to act in the consumer’s interest at any stage in the food production and supply chain. Other regulatory bodies that enforce food safety legislation include the local authorities’ Environmental Health Departments.

In the UK, relevant legislation includes:

• Food Safety Act 1990 and the Food Safety Act 1990 (Amendment) Regulations 2004. Under the Food Safety Act 1990 a food business must not:
  – Cause food to be dangerous to health.
  – Sell food that is not what the customer is entitled to expect in terms of content or quality.
  – Describe or present food in a way that is false or misleading.The main food safety and consumer protection offences created by the Food Safety Act 1990 are:
  – Section 7 – Rendering food injurious to health:
  – By adding an article or substance to the food.
  – By using an article or substance as an ingredient in the preparation of the food.
  – By abstracting any constituent from the food.
  – By subjecting the food to any process or treatment.
  – With the intention that it shall be sold for human consumption.
  – Section 14 – Selling to the purchaser’s prejudice any food which is not of the nature or substance or quality demanded by the purchaser.
  – Section 15 – Falsely describing or presenting food.
  – Under section 20, if the commission of an offence is due to the act or default of another person, the other person is guilty of the offence.
  – Under section 21 in proceedings for an offence under the provisions of Part 2 of the Act, which includes the offences listed above, it is a defence for a food business operator to prove that he took all reasonable precautions and exercised due diligence to avoid the commission of the offence.
• Food Information Regulations 2014 – These regulations provide details on the information which must be provided to consumers and how the information must be presented. The regulations also confirm the 14 substances or products that cause allergies or intolerances.
• Food Hygiene (England) Regulations 2013 – These regulations came into force on 31st December 2013, consolidating ‘food hygiene’ and ‘food safety’ provisions into a single Statutory Instrument.
• Food Hygiene (Wales) Regulations 2006.
• Food Hygiene (Northern Ireland) Regulations 2006.
• Food Hygiene (Scotland) Regulations 2006.
• General Food Regulations 2004 – These regulations outline criminal offences for breaches of certain food laws, laying down penalties including fines and imprisonment. More specifically, this legislation covers the hygiene of foodstuffs and sets out general hygiene requirements for all food businesses. It also includes rules for official controls on products of animal origin intended for human consumption and those performed to ensure the verification of compliance with feed and food law, animal health and animal welfare.
• Food Labelling Regulations 1996 – It is a requirement that food to which the regulations apply be marked or labelled with:
  – The name of the food.
  – A list of ingredients.
  – An appropriate durability indication.
  – Any special storage conditions or conditions of use.
  – The name or business name and an address or registered office of either the manufacturer or packer, or a seller established within the European Community or both.
  – Particulars of the place of origin or provenance of the food if failure to provide such particulars may mislead a purchaser to a material degree as to the true origin or provenance of the food.
  – Instructions for use if it would be difficult to make appropriate use of the food in the absence of such instructions.
  – As a rule, such particulars must appear on the packaging, or on a label attached to the packaging, or on a label that is clearly visible through the packaging.
• Regulation 852/2004 on the hygiene of foodstuffs.
• Regulation 178/2002 laying down the general principles and requirements of food law.

These regulations make it a requirement for all food businesses to implement food safety management procedures based on Hazard Analysis and Critical Control Point (HACCP) techniques:

• Identify points in those operations where food hazards may occur.
• Decide which points identified are critical to ensure food safety.
• Identify and implement effective control and monitoring procedures at critical control points (CCPs).
• Periodic review and analysis of food hazards, CCPs, and control and monitoring procedures, and also when there is an operational change.

Food hygiene due diligence checklist

The essential daily kitchen due diligence records are:

• Delivery schedule – Record all your deliveries to demonstrate temperature, dates, packaging and labels were all checked. For large deliveries, monitor one or two food products from that delivery. Chilled food: max. 8ºC; Hot food: minimum 63ºC.
• Fridge and freezer temperatures – It is recommended that fridge temperatures are checked at least once per day. Some businesses may wish to check fridges more frequently.
• Core cooking temperature of a selection of high-risk protein foods daily.
• Cooling times and temperatures of all high-risk foods cooled; this is an essential record for your due diligence as cooling food safely is a high-risk area.
• How you handle cross-contamination risks and the procedures in place for this.
• Hot hold / display records – For food to be held hot for more than 2 hours.
• Kitchen cleaning, hygiene inspections, daily checks and record keeping for:
  – Hygiene of food rooms and equipment.
  – Food storage.
  – Food handling practices.
  – Personal hygiene.
  – Pest control.
  – Waste control.
• Hygiene training records.
• Staff competence, supervision, and training records.
• Fitness to work assessment records.
• Allergen matrix is up to date and accurate.
• Labelling and packaging procedures (essential for allergen control).
• Records of any complaints.
• Monitoring schedule for all records above.

Without these records, it will be hard to prove that you are compliant with the Food Safety Act 1990 and to prove due diligence should you face any non-compliance charges, which could result in legal penalties.

In conclusion

The due diligence defence is easier to prove when a business has a management system which continually assesses the risks to food safety and food hygiene and allocates the resources to minimise these risks.