Food Poisoning and Allergies

Product Liability Mini Guide

Contents
1. Introduction
2. Insurance coverage
3. Civil claims – the law
4. Investigations
5. Causation
6. Handling
7. Quantum
8. Criminal prosecutions

1 Introduction
Food poisoning occurs when you ingest food or water that has been contaminated with certain types of
bacteria, parasites, viruses or toxins. Common types include Salmonella, Campylobacter and E. coli. Norovirus
can also be transmitted via food (although more commonly person to person). Generally, the symptoms of food
poisoning pass quickly; but some people suffer more serious or long-lasting illnesses such as irritable bowel
syndrome, coronary damage, kidney failure and peritonitis.

This guide will also consider food allergies which occur when the body’s immune system mistakenly develops an
antibody to ‘fight off’ a specific food. When the food is next eaten, it triggers a response which results in the
release of chemicals in the body. These cause various symptoms such as a rash, wheezing, itching, swelling of
the face, diarrhoea, vomiting and in the most severe cases, anaphylaxis (which can be life-threatening). The
foods which most commonly cause an allergic reaction include milk, eggs, nuts, seeds, shellfish, fish, wheat, soya
and some fruits.

This guide focuses on claims arising from the supply of food by food businesses.

Claims can arise in 3 main ways:

1. Civil claim by a person who has suffered food poisoning or an allergic reaction;
2. Criminal prosecution by an enforcement body;
3. A food business pursuing another party in the supply chain for its economic losses, usually related to an
underlying civil claim for injury.

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2 Insurance coverage
Food poisoning and allergy claims are generally ‘short-tail’ as there is a close temporal link between the alleged
breach and manifestation of symptoms. The insurer on risk at the time the diagnosis was made, or was capable
of being made, handles the claim.

An insured may have two or more insurance policies that respond to these claims, particularly where there is
both a civil claim and criminal investigation. Check the terms of each policy (e.g., product liability, public liability,
employers’ liability, legal expenses, directors and officers) and agree a handling strategy.

It is worth noting that claims for pure economic losses, such as a refund for the cost of a meal or loss of
enjoyment, will not normally be recoverable under product liability policies.

3 Civil claims – the law

Food poisoning and allergy claims are usually pleaded under one or more of the following heads:

1. Common law negligence;

2. Breach of contract;
3. Breach of the Consumer Protection Act 1987 (CPA).

A claim could also be pursued under the Occupiers’ Liability Act 1957, albeit the issues raised are likely to mirror
those discussed under Negligence below.

Negligence
Manufacturers, suppliers and retailers owe a duty to those who might foreseeably be affected not to cause injury
or damage through their carelessness. Claimants may be able to establish a negligence claim if they can
establish a breach of this duty and that the breach caused their injury – for example, a claimant may establish:

1. That a defendant failed to have in place suitable food hygiene procedures or cleaning procedures
and/or failed to follow its procedures such that the food was allowed to become or remain
contaminated with a pathogen or allergenic ingredient;
2. That a defendant failed to inform a customer of the presence of an allergen in a food product;
3. That a defendant failed to have in place suitable procedures to minimise the risk of a norovirus outbreak
or failed to react appropriately to an outbreak in order to contain it and minimise the risk of the
outbreak spreading.

Conversely, claims can be defended if it can be shown that all reasonable steps were taken to minimise the risk
of food poisoning/cross contamination/norovirus outbreak, etc.

Food Information Regulations 2014

On the topic of allergens it is worth noting that the Food Information Regulations 2014 give authorities the
ability to enforce Regulation (EU) No 1169/2011 on the provision of food information to consumers. This EU
Regulation requires food business operators to list any of the 14 identified allergenic ingredients listed in Annex
II on all pre-packed foods. Whilst the 2014 Regulations do not create a new civil cause of action they could

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strengthen claims arising from consumption of food products that contains an allergen in circumstances where
the food business has failed to properly label this.

It is also worth noting that Regulation 5 of the 2014 Regulations provides an exception for food items which are

1. Not prepacked;
2. Packed on the sales premises at the consumer’s request; or
3. Prepacked for direct sale.

If any of the above apply then the food business operator does not have to list any allergenic ingredients on the
food product itself. Instead, it can provide allergen information by any means the operator chooses including
orally – provided the operator indicates, by way of a label attached to the food or on a notice, menu, ticket or
label, that details of that substance or product can be obtained by asking a member of staff.

Breach of contract
There are implied terms in the supply of goods, including food, that the goods will be of satisfactory quality and
fit for purpose – per the Sale of Goods Act 1979 and the Consumer Protection Act 1979.

(It is also worth noting that in any contract for the supply of a service (e.g., the preparation of food) there is an
implied term that the service will be carried out with reasonable care and skill – albeit, in practice, this is likely to
raise similar issues to a negligence claim – see above.)

Hence a person who has entered into a contract with a supplier of food may have a claim for breach of contract
if he or she can show either that the food was not of satisfactory quality and that it caused him or her to become
ill.

The benefit to the claimant is that a version of strict liability may apply meaning that there is no need to show
carelessness; and it is not a defence to show that all reasonable steps were taken to minimise the chance of food
poisoning. However, the drawback for the potential claimant is that he or she has to have contracted with the
defendant (‘Privity of contract’) so, e.g., a person would not have contracted with a takeaway food provider if the
food was ordered and collected by another family member.

Unlike with negligence, claims for pure economic loss can be recovered in breach of contract claims but (as
above) insurers need to check their policy to see if such damages or legal costs are covered.

What about diners in a restaurant?

In Lockett v A & M Charles Ltd [1938] 4 All ER Mr and Mrs Lockett had lunch in a restaurant. Mrs Lockett had
fish which was contaminated and she suffered food poisoning. (There was no negligence on the part of the
restaurant.) The court considered whether Mrs Lockett had a contractual claim in circumstances where Mr
Lockett had paid. The court accepted that:

“When persons go into a restaurant and order food, they are making a contract of sale in exactly the same
way as they are making a contract of sale when they go in and order any other goods.”

The reasoning appears to have been that in the unique scenario where diners order food in a restaurant, each
diner is responsible for payment regardless of whether or not he or she ultimately pays. Hence the position may
be quite different if a restaurant is made aware from the outset that one individual in a group of diners is acting
as a “host”.

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CPA
The CPA allows a person to sue the following producers of food products directly, including (potentially)
farmers, factory owners, manufacturers and any person who has cooked the food. A consumer need only prove
that the food product consumed contained a ‘defect’ and that the defect caused him injury. A food product is
considered to contain a defect if the safety is not such as persons generally are entitled to expect. This could
include food that is contaminated by a pathogen or food that contains an allergen of which the consumer is not
properly informed or warned.

Like with breach of contract, there is no need to prove carelessness since the test of whether a product contains
a defect is based on safety, as measured by the public’s general expectation of safety requirements.

The benefits to the claimant include the fact that like with breach of contract, there is no need to prove
carelessness since the test of whether a product contains a defect is based on safety, as measured by the
public’s general expectation of safety requirements; and, unlike with breach of contract, any person can bring a
claim regardless of whether they entered into a contract.

Does the fact that food is contaminated automatically lead to a finding that it is not of satisfactory
quality or that it contains a defect?
In the recent case of Wood v TUI Travel PLC [2017] EWCA Civ 11 the court said that:

“Food contaminated with bacteria such as to cause illness could hardly be described as [satisfactory
quality]”

This is clearly not helpful for defendants but arguably this obiter comment is far too simplistic. The following
examples show grey areas:

 Chicken is habitually contaminated with, e.g., Campylobacter and, accordingly, is never eaten raw;
 Similarly, in Heil v Hedges [1951] 1 TLR 512 the court held that pork chops could be considered
satisfactory despite being contaminated because they could be eaten safely if properly cooked before
being consumed;
 Some high risk foods are routinely consumed raw (such as oysters and steak tartare) and, depending on
the circumstances, it might be argued the consumer accepts the risk of contamination;
 Shellfish carry a risk of contamination with norovirus but there are no recognised methods of detecting
and eliminating it; and the regulatory controls, whilst achieving an appropriate degree of consumer
protection do not require the elimination of shellfish. The courts have said that it would be challenging
for a claimant to prove that the level of safety he is entitled to expect is higher than that provided by a
regulatory regime (see Wilkes v Depuy International Ltd [2016] and Gee and others v Depuy International
Limited [2018]).

4 Investigations
The investigations required will depend on the circumstances of the claim and the allegations raised, but the
following are some of the typical lines of enquiry that may be pursued with an insured and with the claimant
when dealing with a food poisoning claim:

From the insured

 Correspondence between the claimant and defendant (e.g. initial letter of complaint).

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  Proof of purchase or contractual agreement (e.g., receipt, wedding contract, function details)
 All correspondence between the insured and any potential claimants/complainants and, in particular,
any early information provided by such persons as to their symptoms, onset time, etc., and/or any
admissions made by the insured
 Any relevant menus
 If a particular food item has been implicated:
 Samples of the actual food consumed, albeit it is often too late by the time a complaint is made
 An accurate description of the ingredients, including the cut of any meat and its size and weight
 Any test results relating to the food samples (e.g., samples may have been taken by an
enforcement body
 Confirmation as to how many other persons were served with the same food item on the same
day
 Confirmation as to whether any members of staff consumed the same food item and, if so,
whether they were ill
 Documents confirming from where ingredients were sourced
 Any dish preparation guidelines specific to the food item
 Food safety/hygiene manuals/policies and HACCP (‘Hazard analysis and critical control point’: every
food business must have a plan, based on HACCP principles, to demonstrate that they have looked at
how they handle food and have put measures in place to reduce biological, chemical, and physical
hazards to a safe level, therefore ensuring that the food they produce is safe to eat)
 Documents showing that food safety/hygiene policies were followed such as temperature-control charts
for refrigerators, freezers or chillers and cooking temperatures
 Details of food hygiene inspections previous to and following incident
 Details of current and previous hygiene ratings
 Details of any other food poisoning complaints in the period prior to and following the incident
 Cleaning rotas/schedules
 Staff food safety/hygiene training records/return to work policy
 Any documents prepared following an internal investigation.
 Documents relating to any contact with or investigation or prosecution by any enforcement body, e.g.,
the local Environmental Health Officer (EHO)
 Lay witness evidence – consider obtaining early statements covering such issues as how the food was
prepared, food safety policies and compliance, steps taken to address an outbreak, if appropriate, etc.

From the claimant/s

 Consider early questions on the record (possibly in the form of a questionnaire) before memories fade:
 Food consumed
 When exactly symptoms commenced
 Nature of symptoms
 How long symptoms lasted
 Food consumed in preceding 7 days
 Any foreign holidays taken, where and when
 Any interaction with animals during the past 28 days
 Confirmation as to whether the claimant sought medical attention and/or submitted a stool
sample – seek medical records and test results from stool samples, if appropriate
 Proof of purchase
 Documents in support of any financial losses, if appropriate

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Allergy claims
 Documents detailing the allergenic ingredients contained within each meal supplied
 Packaging in relation to the food product or details of all of the ingredients contained in it
 Staff training records in relation to allergens
 Risk assessments
 Details of any product recalls

5 Causation
It is not enough just to show that there was a breach on the part of the insured. The claimant must show a
causal link between the food supplied by the defendant and any illness allegedly suffered, i.e., that the food was
the cause of the illness.

Allergen claims can often be relatively straightforward (albeit not always) where the effect (e.g., anaphylactic
shock) follows very soon after consumption. However, for food poisoning there is normally a period of time
between consumption and the onset of symptoms. This is because food poisoning occurs when a sufficient
number of food poisoning bacteria or their toxins or food-poisoning viruses are ingested (the ‘infective dose’).
That pathogen must first multiply in the small intestine; and symptoms only develop once there are sufficient
numbers.

This is called the ‘incubation period’ and this will vary depending on the type of pathogen, the dose ingested
and also the general health of the person consuming the food.

The incubation period, together with the duration of a person’s symptoms, can tell you a lot about the likelihood
that a certain food item caused a claimant’s symptoms. Hence the importance of seeking early evidence as to
when the implicated food was eaten, when symptoms commenced and when they ended, etc. There is a
tendency for claimants to blame the last thing they ate whereas it often could have been anything in the last
week.

The table below lists some common pathogens, where they are found and average incubation periods:

Bacteria Typical food sources Average incubation Duration of symptoms

period
Salmonella Meat, poultry, eggs 12 to 72 hours 4 to 7 days
Campylobacter Poultry, wild birds, milk 2 to 7 days 2 to 10 days
Staphylococcus aureus Usually meat, undercooked 1 to 6 hours 24 to 48 hours
or not chilled at correct
temperature
Bacillus cereus Cereal products, rice, 10 to 16 hours 24 to 48 hours
custards and sauces
E. coli 0157 Cooked (contaminated) 1 to 8 days 5 to 10 days
meat, salads, farm visits
Noroviruses Raw produce,; shellfish 12 to 48 hours 12 to 60 hours
from contaminated waters

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It is worth noting that toxins, such as that produced by Staphylococcus aureus, tend to be faster acting and
therefore have shorter incubation periods but also the resulting illness tends to be fairly short-lived.

A claimant need only establish that the food caused his or her illness on balance of probabilities (i.e., more likely
than not) and, to do so, evidence indicative of a cause may be enough. Typically claimants will rely on the
following types of evidence:

 Medical records confirming they sought medical attention at the appropriate time and any diagnosis
 A stool sample confirming infection
 EHO investigation findings which may highlight, e.g.:
 Breaches of food safety procedures
 Samples taken from the insured’s kitchen confirming the presence of a pathogen (which could
prove to be compelling evidence if it matches a stool sample provided by the claimant)
 A finding that a food item was the common source eaten by the majority of affected parties
 Their own evidence that they ate the food consumed and later became ill

Conversely, a defendant may be able to rely on the following types of evidence to undermine the claimant’s
account:

 Evidence that tends to suggest that contamination was unlikely such as:
 Its food hygiene procedures and due diligence records confirming that it had sufficient
procedures in place and that it followed such procedures
 Hygiene ratings and inspection records
 Evidence of other dishes served on the same day without issue
 Lack of similar complaints
 The claimant’s onset times and symptom duration may be inconsistent with the alleged type of
pathogen and incubation period
 Potential other causes such as other food and drink consumed in the preceding 7 days

Expert evidence
The parties may seek out expert evidence to assist, including:

1. Gastroenterologists, who specialise in the study of the digestive system and typically report on
individual cases, considering the extent of an individual’s illness and whether this is consistent with the
pathogen consumed; it is not uncommon for claimant’s to rely solely on this type of expert – but they
are arguably not qualified to comment on causation

2. Food microbiologists, who study micro-organisms such as bacteria and viruses and are much better
equipped to consider, e.g., whether the restaurant’s hygiene policies were sufficient to eliminate the risk
of contamination and whether the incubation period is consistent with the pathogen ingested

3. Epidemiologists, who study the spread of a disease and can consider whether large outbreaks can be
traced to a common source

Allergy claims
In the case of an allergic reaction, it will be necessary for the claimant to demonstrate that he was allergic to a
particular ingredient within the food product, that the food product contained that ingredient, and that it was
the consumption of that food which caused an allergic reaction and the symptoms complained of.

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6 Handling
The Pre-Action Protocol for Low Value Personal Injury (Employers’
Liability and Public Liability) Claims
The vast majority of food poisoning and allergy claims are likely to be of low value, and certainly worth less than
£25,000 – hence they ought to be submitted via the Claims Portal in accordance with The Pre-Action Protocol.
In appropriate cases, an admission within 40 working days within the Portal will ensure Portal fixed costs
continue to apply in accordance with CPR 45.17.

Conversely, if liability and/or causation is in dispute, then the removal of the claim from the Portal will make it
easier to rely on expert evidence and to push for the disclosure of medical records, etc.

If the claimant does not submit their claim via the Portal, and instead you receive a letter of claim, you should
query why the claim has not been submitted via the Portal and reserve the right to argue that the defendant
ought to pay no more than fixed Portal costs, per CPR 45.24.

Handling of multiple civil claims

Where there has been a large food poisoning outbreak, and multiple claims follow, it is very important to obtain
as much early information as possible about all of the likely claims. This information can be compiled into a
spread sheet, capturing key features for each claimant including names, addresses, dates of birth, the food
allegedly eaten on the day in question, food history for seven days or so prior to onset of symptoms, date of
onset, nature of symptoms, resolution of symptoms, whether a stool sample was taken, and any bacteria
identified in that stool sample.

The earlier this information is captured the better; memories fade quickly in relation to food histories and even
the nature and length of symptoms. The more accurate and comprehensive this information, the easier it will be
to analyse it and properly consider liability. For example, you may be able to rule out food as a cause of the
outbreak entirely if there is no correlation to a particular food item.

A generic questionnaire can be drafted, which is sent to each claimant and is designed to capture this key
information.

For the settlement of claims it is often possible to agree a tariff with the claimants providing agreed damages for
different symptom durations. This avoids having to argue every claim and saves costs.

If the claims become litigated, various options are available to assist in managing the claims so that they are
handled consistently and cost-effectively, including:

 The consolidation of claimant’s claims into one claim;

 The case management of claims together;
 The use test cases, whilst others are stayed;
 Group Litigation Orders (GLOs) in more complex cases.

The power to order a GLO is found in CPS 19.11. Practice Direction 19B provides the procedure for applying for
a GLO. Key features of a GLO include:

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  The setting up of a ‘group register’ containing key details of each claimant. Entry of a claim on the
register can avoid that claimant having to draft and file formal court proceedings;
 One court (the ‘management court’) will take control of the matter; and usually one judge will deal with
all case management decisions;
 Lead solicitors may be appointed for the claimants and/or defendants, helping to unite those parties
and assist handling. The lead solicitors for the claimants will usually be responsible for maintaining the
group register;
 At some point, a cut-off date will be imposed, after which the register will close and no further claims
can be added. This brings finality to the GLO.

The establishment and ongoing management of a GLO can in itself be costly, particularly if there are many
parties and they disagree as to the best way of running the claims. However, when a GLO is deployed in the
right cases, it can lead to significant costs savings and consistent outcomes.

Reputation and media

Insureds will often want to maintain goodwill with affected customers by, e.g., sending sympathetic responses to
initial complaints/claims and/or offering refunds, free meals, etc. Care should be taken that no admissions of
liability are made or implied.

It may also be sensible for an insured to seek advice before speaking to the media and to channel approaches
from the media through an agreed contact.

Recoveries
It may be possible to claim an indemnity and/or contribution from any other party in the food supply chain
under one or more of the following causes of action:

1. Negligence – but only if:

a. The recovery target has been careless in some way. A mere supplier of the food may not have
been careless in any way; and
b. The insured has suffered damage; and often the insured, as a ‘middle’ party, has only suffered
pure economic loss (i.e., it has paid out a claim).

2. Breach of contract – i.e., a claim against the next party in the contractual chain for supplying goods that
were not of satisfactory quality.

3. A claim under the Civil Liability (Contribution) Act 1978

Section 1(1) provides that “any person liable in respect of any damage suffered by another person may
recover contribution from any other person liable in respect of the same damage”. This means that any
party that has paid out to a claimant can bring a claim for a contribution against any other party if it can
show that the claimant could also have successfully sued that other party (had they chosen to do so) –
for example, in negligence or under the Consumer Protection Act. The court has complete discretion in
apportioning liability.

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7 Quantum
General damages
The level of general damages can depend on the age and sex of the claimant but primarily will be based on the
following:

 The duration, frequency and severity of symptoms;

 Any associated illnesses such as Irritable Bowel Syndrome (IBS);
 The general impact on the claimant’s work and lifestyle.

th
The JC Guidelines (14 Edition) provide some useful guidance. Illness or damage to the digestive system from
non-traumatic injury such as food poisoning is covered by Chapter 6G(b), which suggests the following brackets:

Description of injury Award With 10% uplift *

(i) Severe toxicosis causing serious acute pain, vomiting, diarrhoea £30,630 to £41,860 £33,700 to £46,040
and fever, requiring hospital admission for some days or weeks and
some continuing incontinence, haemorrhoids and irritable bowel
syndrome, having a significant impact on ability to work and
enjoyment of life.
(ii) Serious but short-lived food poisoning, diarrhoea and vomiting £7,600 to £15,300 £8,360 to £16,830
diminishing over two to four weeks with some remaining
discomfort and disturbance of bowel function and impact on sex
life and enjoyment of food over a few years. Any such symptoms
having these consequences and lasting for longer, even indefinitely,
are likely to merit an award between the top of this bracket and the
bottom of the bracket in (i) above.
(iii) Food poisoning causing significant discomfort, stomach cramps, £3,150 to £7,600 £3,460 to £8,360
alteration of bowel function and fatigue. Hospital admission for
some days with symptoms lasting for a few weeks but complete
recovery within a year or two.
(iv) Varying degrees of disabling pain, cramps and diarrhoea £730 to £3,150 £800 to £3,460
continuing for some days or weeks.

There is no specific bracket within the JC Guidelines in respect of allergic reactions; but in most cases claimants
will have made a complete recovery within 3 months and Chapter 13, which covers minor injuries, can be used
as guidance, as below. Quantum reports may also be helpful.

Description of injury Award With 10% uplift *

(a) Injuries where there is a complete recovery within 7 days. A few hundred A few hundred
pounds to £550 pounds to £600
(b) Injuries where there is a complete recovery within 28 days. £550 to £1,090 £600 to £1,200
(c) Injuries where there is a complete recovery within three £1,090 to £1,950 £1,200 to £2,150
months.
* For claims issued on or after 1 April 2013

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Special damages/future losses
Loss of earnings is usually the principal head of loss. There may also be claims for medical treatment, medication
and care.

CRU
Benefits are likely to be paid only in the most serious cases, given that many incidents resolve within a few days,
with modest disability. However, for individuals treated in hospital, the compensator is likely to be liable for NHS
charges. Certificates should be obtained from the DWP in all cases.

8 Criminal prosecutions
The law
The Food Safety Act 1990 (as amended) provides the framework for all food legislation in the UK and is
concerned with all aspects of food production and sale. In addition, the Food Hygiene (England) Regulations
2013 update and consolidate existing food hygiene legislation. Food safety legislation is based on the
requirements of EC Directives and Regulations as set out in more detail below.

The main offences under the Food Safety Act 1990 are as follows:

Section 7 Rendering food injurious to health by:

 adding an article or substance to the food
 using an article or substance as an ingredient in the
preparation of the food
 abstracting any constituent from the food
 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 Amman Ayub, Allergan Holdings Ltd 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.

Conversely there are further offences under Regulation (EC) 178/2002 and Regulation (EC) No 852/2004 which
provide for strict liability, including inter alia as follows:

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Article 14 of Placing food on the market that is unsafe. Food is deemed to be unsafe
Regulation (EC) No if it is considered to be injurious to health or unfit for human
178/2002 consumption. The article indicates what factors need to be taken into
account when determining whether food is injurious to health or unfit
Chapter IX of Annex II Failure to store raw materials in appropriate conditions
of Regulation (EC) No
852/2004
Article 4 of Regulation Failure to comply with the general hygiene requirements
(EC) No 852/2004
Article 5 of Regulation Failure to implement and maintain a permanent procedure based on
(EC) No 852/2004 HACCP principles

Food business operators are to ensure that food handlers are supervised and instructed and/or trained in food
hygiene matters commensurate with their work activity and that those responsible for the development and
maintenance of the procedure referred to in article 5 of this Regulation have received adequate training in the
application of the HACCP principles.

The Food Standards Agency has produced a number of guidance documents which can be found on their
website: www.food.gov.uk.

Criminal investigations
Environmental Health Officers have the right to enter and inspect premises at all reasonable hours. If problems
are identified during the inspection, officers can take samples and photographs of food and inspect business
records.

Officers can interview witnesses under section 9 of the Criminal Justice Act. Such statements are provided on a
voluntary basis. The statement is admissible in evidence and should only be signed if the signatory (maker) is
happy with the content. Officers may use their powers under section 20 of the Health & Safety at Work Act 1974
to compel an individual to answer their questions. It is an offence to refuse to answer the officers’ questions. The
section 20 statement is usually in question-and-answer format and cannot be used in evidence against the
maker or their spouse.

If an individual is suspected of committing an offence, they may be invited to attend an interview under caution
(carried out in accordance with the Police and Criminal Evidence Act 1984); or in the case of a company, an
authorised representative should be invited to attend. There is no obligation to attend and the court cannot
draw any adverse inferences in any subsequent criminal proceedings, should the invitation to attend a PACE
interview be declined. However, adverse inferences can be drawn against a party that attends the PACE interview
but answers, for example, “no comment”. It is therefore necessary to think very carefully about whether it is
within the attendee’s interest to attend – for example, if the individual has a good defence to the allegations
being raised, if the offence was committed by someone else, and/or if the maintaining of goodwill with the local
authority is paramount.

Pre-interview disclosure should be sought in either case. It may also be worth asking the environmental health
officer to set out the proposed questions in writing, before making a decision as to whether to attend the PACE
interview. However, the Officer is not obliged to do so.

Individuals who are interviewed should be offered legal representation. If there is a potential conflict between
the insured company and one or more of their employees, they may each require separate legal representation.

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Enforcement
The enforcement of regulations on food standards, safety and hygiene is primarily the responsibility of local
authorities. Investigations will often be undertaken by an environmental health officer employed by a local
authority. Local authorities have enforcement policies which can generally be found on their website. A careful
review of the local authority’s enforcement policy may yield arguments that any formal action which is taken, or
proposed to be taken, is not in accordance with that policy and is not within the public interest. The Code for
Crown Prosecutors is also often referred to by local authorities as being a Code that they will abide by.

Enforcing authorities have a number of options following an investigation including:

 Written or verbal advice;
 A Hygiene Improvement Notice;
 A Hygiene Prohibition Order;
 A Hygiene Emergency Prohibition Notice or Order;
 Remedial Action Notices;
 A warning;
 A simple caution;
 Prosecution.

A Hygiene Improvement Notices is used by enforcement authorities to require a food business operator to carry
out certain measures to address a breach.

An Emergency Hygiene Prohibition Notice is used by enforcement authorities where there has been a breach
that has created an 'imminent risk of injury to health'. The effect is to immediately close the business premises,
or prevent the use of equipment, or the use of a process or treatment. Knowingly contravening such a notice is
an offence in itself.

Limitation
The Food Hygiene (England) Regulations 2013 and the Food Safety Act 1990 provide that no prosecution shall
begin after the expiry of 3 years from the commission of the offence or 1 year from its discovery by the
prosecutor, whichever is earlier.

Penalties
All criminal cases start in the Magistrates’ Court. The magistrate decides whether she/he has jurisdiction to hear
the case or whether it should be committed to the Crown Court – albeit food offences tend to be tried in the
Magistrates’ Court.

It was previously the case that fines were limited to £20,000 for offences under Section 14 of the Food Safety Act
1990 and Article 14 of Regulation (EC) No 178/2002 and £5,000 for all other offences, when heard in the
Magistrates’ Court. However, section 85 of the Legal Aid Sentencing & Punishing of Offenders Act 2012
removed this limit meaning that there is now potential for an unlimited fine regardless of whether the matter is
heard in the Magistrates’ Court or the Crown Court.

The Food Safety Sentencing Guidelines provide that the court should take into account the a defendant’s
financial status (i.e. turnover), its culpability (i.e., how far it fell short of the appropriate standard and whether it
showed a flagrant disregard for the law), the harm caused (i.e., the level of harm and how widespread) and any
aggravating or mitigating factors.

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Penalties can be aggregated where the food business is guilty of multiple offences. Hence when defending
against multiple charges defendants should scrutinise such charges in case they duplicate or overlap, as some of
them might be struck out for that reason.

Costs
Insurance policies will often cover criminal defence costs (at different stages) and some may cover prosecution
costs. Insurance policies may provide separate cover for individuals; principally directors and managers, but
often all employees. Fines and penalties cannot be covered by insurance. Many policies are stated as only
covering specific offences – usually under s7, 8, 14 and 15 Food Safety Act 1990 and Part II of the Consumer
Protection Act 1987. Others are wider or non-specific in scope.

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