How does the Food Safety Act 1990 apply to injury claims?

The Food Safety Act 1990 is wide-ranging legislation on food safety and consumer protection in relation to food.

It provides the framework for all food legislation in all types of food business in England, Wales and Scotland. Similar legislation applies in Northern Ireland.

Its main aims are to ensure that all food meets consumers' expectations in terms of nature, substance and quality and is not misleadingly presented.

It provides legal powers and specifies offences in relation to public health and consumers' interest.

The Act covers activities throughout the food distribution chain, from primary production through distribution to retail and catering and gives the Government powers to make regulations on matters of detail.

The principal Government Department responsible for preparing specific regulations under the Act is the Food Standards Agency.

Key requirements of the Act

All food businesses must comply with the Act by ensuring food is not treated in any way that may make it damaging to the health of those eating it. This includes adding or removing anything that may make it unfit for consumption.

Food must be of the nature, substance or quality which consumers would expect and labelled, advertised and presented in a way that is not false or misleading.

Failure to comply may be considered an offence under the Food Safety Act

Failure to comply

The main offences are defined as:

a) Rendering (making) food injurious to health (section 7 of the Act);

A person may render a food injurious to health if he adds or removes a particular substance to or from it. For example: any additives used must be approved and only used in the food they are approved for use in. They must not exceed permitted levels.

In contrast, neglecting to add a preservative may led to the food deteriorating before its use by date and the business may be judged to have "removed or abstracted" a substance in the food's preparation.

In determining whether the action has made the food injurious to health, the probable immediate or short/ long-term effects of that food on the consumer should be considered. For example; adding excessive amounts of sugar to a product aimed at diabetics could render the food injurious to health. The offence applies whether the act is deliberate or not (subject to a due diligence test).

If any quantity of food in a batch is found to be contaminated or unfit for human consumption, then the entire batch is considered to also be unfit and should be withdrawn from sale. This must be documented.

b) Selling, to the purchaser's prejudice, food which is not of the nature or substance or quality demanded (section 14);

When a food is sold and ‘not of the nature or substance or quality demanded' by the purchaser, the seller is guilty of an offence. The ‘purchaser' of food can range from a customer at a shop, to one company buying from another. A person may be considered to be a ‘purchaser' even where no money changes hands directly, e.g. winning a cake in raffle.

Nature means a product sold as one thing when it is another - haddock sold as cod - for example.

Substance covers 2 areas - where the food contains foreign bodies or damaging residues; or where it does not meet a statutory standard for the food described. This would include products such as double cream with less than 48% milk fat, or a milk powder with a milk protein level below the legal minimum.

Quality refers to commercial quality - an example of a product below the quality demanded would be a stale cake.

Records should be kept of where food has been sourced from so that all ingredients are traceable should any issues with food quality arise.

c) Falsely or misleadingly describing or presenting food (section 15)

Any person who labels or advertises food in a way that falsely describes it, or labels, advertises or presents food in a way that the purchaser is led to the wrong conclusion is guilty of an offence.

An example would be a non-dairy alternative to cream being packaged in traditional cartons and displayed alongside cream - unless it was made clear that the product was ‘non-cream'.

Is the food business liable if a person is made ill through consuming its products?

If it can be demonstrated that breach of the Food Safety Act 1990 led to a person sustaining illness then a food business may be found liable.

However the producer may be able to defend himself against prosecution if it can be proved that either:

• The situation is due to the actions of another party beyond the producer's control
• A previous handler's checks have been relied on, or
• There was general ignorance of the actions leading to an offence

Making a food-related injury claim

Compensation claims made in relation to a food retailer or food producer's negligence may consider the Act.

If a supplier or producer has been found guilty of an offence under the Act, that is often strong evidence of their negligence in the context of a claimant's claim for compensation.

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Author:
Chris Salmon, Director

About the author

Chris Salmon is a co-founder and Director of Quittance Injury Claims. Chris has played key roles in the shaping and scaling of a number of legal services brands and is a regular commentator in the legal press.