RAU Associate Professor Tony Lewis speaks at Westminster Food and Nutrition Forum

Tony Lewis, Associate Professor at the RAU and Chartered Environmental Health Practitioner, recently gave a speech to the Westminster Food and Nutrition Forum in London that was attended by MPs, Lords and a range of senior civil servants from the UK and overseas. A number of diplomats from the food and agricultural industries were also present and the event was chaired by Dr David Drew MP (Stroud) and Shadow Minister for Environment, Food and Rural Affairs.

You can read the full transcript of Tony’s speech below. Find out more about Tony's role at the RAU by viewing his staff profile.

Impact of the Food Standards Agency’s ‘Regulating our Future’ (ROF) programme for environmental health professionals across all sectors

Tony Lewis; Royal Agricultural University

First of all I should like to thank the Forum for the opportunity to speak at this event today and to engage in discussions with colleagues who have a common interest in these issues.

When I was originally approached about speaking at this event, I was Head of Policy for the Chartered Institute of Environmental Health (CIEH); I was also closely engaged with issues associated with RoF, almost on a daily basis. Sometimes, when you’re that close to something, objectivity doesn’t come easily and, over the last 6 months, since moving from CIEH to the Royal Agricultural University as Associate Professor in Food, not only have I detached from the daily cut and thrust associated with CIEH/FSA life, I have been able to look at RoF a little more dispassionately and with a degree of objectivity that only comes with time and distance. Consequently this address, whilst delivered by an EHP who has a focus on food, is hopefully an objective look both backwards and forwards at RoF with a view to evaluating its impact on EHPs across all sectors.

First of all, it’s important to contextualise RoF and, back in 2017, in an article published by CIEH, I wrote that from my perspective the key drivers behind the RoF programme included:

The Cabinet Office’s Regulatory Futures Review and its desire to see regulated self-assurance and earned recognition
Falling capacity (particularly within English local authorities) to deliver the existing food control system.
A desire to ensure that businesses should have a choice about how they demonstrate compliance
Businesses should meet the real costs of regulation!
A desire to deliver a ‘permit to trade’, business registration system and an ability to tap into businesses’ own data to provide assurance to the regulator that food that is produced is safe and what it says it is
A desire to develop a holistic approach to food safety, food standards and feed regulation, and an associated need to ensure that those engaged in food regulation are appropriately skilled and competent to deliver ‘official controls’ across all areas of food.

So, bearing these historic drivers and pressures generated by a stalled, Brexit political process in mind, the key questions are:

“To what extent has RoF addressed these drivers? 
“What difference will RoF outputs make to EHPs out there who are working to deliver food safety on a daily basis”?

Let’s begin with the Regulatory Futures Review. It stated that “neither  the  state  nor  individual  regulators  are  directly  responsible  for  each  regulated  entity meeting its legal obligations or quality expectations. Organisations should be able to find the best way to self-assure that they are meeting their legal responsibilities.  The job of regulators, then, is mainly to provide information and advice to ensure that organisations assure themselves effectively and reliably, and intervene when they do not”.  The review’s position on regulation is, therefore, pretty clear and the current system lies outside it in as much as the regulators largely take a hand-on approach to ensuring compliance.

The RoF development programme initially embraced the development of assurance and discussions involving the RoF team, CIEH and UK Hospitality started to produce proposals that should have gone on to provide something significant here. However, the solutions under discussion would have required Parliamentary time and changes to primary legislation and this became difficult to achieve with Brexit running alongside RoF.

It didn’t help that the emergent proposals were  largely  a  mirror  image  of  the  New  Zealand model of  food  regulation introduced in their Food Act of 2014 and, a letter sent in January 2017 from the President of the New Zealand Institute of Environmental Health to the NZ Food Minister emerged in late 2017 and caused something of a storm, in that it stated that ‘the system in NZ is not without problems in terms of cost to industry, confusion for consumers and  business  and  failure  of  private  sector  assurers to  report  hygiene  failures  to  NZ  local authorities’.  Furthermore, reports  emerged from  the  Netherlands  that showed  that reducing public sector supervision in meat plants took place there on the basis of a Government belief that private regulation of food  safety would  be  at  least  as  good.   However, it was later reported that businesses and assurance companies in the Netherlands were unwilling to confront each other over risky behaviours and it was considered inappropriate for consultancies to share information with regulatory authorities about such risky behaviour. This mirrored findings from New Zealand and, when taken with a clear view from the assurance companies that such a move would detrimentally impact their relationship with their clients, this led to these proposals being put to one side.

What may actually emerge from this is light assurance in the form of National Inspection Strategies (NIS) which some hope may also help deliver on the issues of falling capacity in England and the desire for businesses to have a choice about how they demonstrate compliance. However, not only is food a devolved matter requiring the agreement of the devolved administrations to system change, but it is also outside the scope of Primary Authority in Northern Ireland and Scotland; consequently NIS (which relies upon primary authority being in place) cannot apply in these countries. The concern therefore for EHPs and for business is that adoption of NIS in England will lead to inconsistencies in the way businesses, that trade across the UK, are regulated across the four countries.

Furthermore, EHPs are concerned that the impact of NIS will be to reduce the number and frequency of their proactive interventions. The Food Hygiene Rating Scheme whilst not being mandatory in England, does require independent, on-site inspections of food businesses by local authorities. The ratings issued to food businesses are based on the findings of these inspections. Consequently, unless we ultimately see Primary Authorities setting the FHR for all business outlets under their control, which in my opinion would be a risky and unjustifiable move, the currency and credibility of the Food Hygiene Rating Scheme would be compromised if, in the future, publicly funded EHPs are limited in their ability to carry out these inspections. Intervention frequencies are likely to also be reduced, which means consumers will not have access to information that is as up to date as under current arrangements.

The FSA has, in the past, acknowledged (in the NIS consultation document) that decreasing the frequency of food hygiene controls at individual outlets has consequences for FHRS but has not described or quantified these consequences. Ultimately, EHPs will want to be assured that any move to introduce NIS more widely will be supported by a proper evaluation of trials and a clear, evidenced view of both the science and the monetised benefits over and above the existing regulatory system. According to figures provided by the FSA, there are currently 1,653 primary authority partnerships of which only 31 have gone as far as putting inspection plans in place. Only 22 of these contain food elements. Therefore the maximum number of businesses across England and Wales that could potentially implement a national inspection strategy at the current time is 22. The data suggests therefore suggests that there is little appetite for national inspection strategies amongst businesses and regulators. However, I do accept that this may change with time.

In describing the benefits of NIS the FSA has stated that:

The introduction of national inspection strategies is not expected to reduce local authority resource dedicated to food regulation but, instead, reallocate resource from more compliant to less compliant businesses. The impact of the local authority inspection resource on public health is therefore expected to increase because the inspections will lead to greater resource improvements focusing on higher risk businesses than those currently which are being dedicated to lower risk businesses.

FSA’s own data from September 2017, shows that 67% of businesses with a rating were achieving the top standard of ‘5 – very good’ with 95% of all businesses achieving a rating of ‘3– generally satisfactory’, or better.  EHPs will wish to see any evidence that supports the suggestion that local authority resources are being ‘dedicated to lower risk businesses’. Environmental Health professionals are well versed in implementing a risk based approach and many local authorities are robust in their implementation of revisit policies to deal with 0, 1 and 2 rated establishments.  This ensures their resources are already directed at the poorer performing food establishments.  

Turning to the FSA’s original objective of delivering a ‘permit to trade’, business registration system and an ability to tap into businesses’ own data to provide assurance to the regulator that food that is produced is safe and what it says it is. This was an initial proposal that was widely supported by EHPs; indeed, many had been calling for the licensing of food businesses for years and, whilst permit to trade was not licensing is seemed to come closer.  The sharing of businesses own data would, however, proved to have been a significant challenge and one that was likely to have been resisted by both businesses and their EHP consultants providing business assurance services.

RoF does look like it will deliver a new ‘enhanced registration’ system that is designed to make it easier for food businesses to register with Local Authorities or with a national registration system prior to entry onto a national database.  Such a system enables businesses to obtain information and guidance to help them comply with safety and standards regulations before they start trading. EHPs also recognise the benefits of linking food business operators, particularly when addressing food incidents and they also see this as being important in delivering food traceability. I previously wrote encouraging FSA to ensure that any new digital registration system joins up with requirements for other government departments such as HMRC, Home Office etc; however, I accept that irrespective of how desirable that may be it is unlikely to be achievable at this time. EHPs believe that the current problem is not so much that there are large numbers of unregistered food businesses, but that food business operators do not proactively register their businesses; consequently, it remains to be seen if enhanced registration will address this. Enhanced registration is, therefore, not without its risks and EHPs are concerned about the potential for there to be large numbers of unregistered and potentially unregulated businesses if we don’t get this right. The current, locally based EH Professional ‘on the street’ guards against this at present. EHPs also concerned that requiring large amounts of registration data could also be seen as an additional burden on business and that, consequently, there is a balance to be struck here.

Finally, the objective of delivering holistic food officers and businesses meeting the cost of regulation may, in fact, be some time away.  That said, EHPs demonstrate their ongoing competence continually and they will have no problem in continuing to do so even if the required competences themselves evolve or change. Businesses currently argue and, no doubt will continue to argue, that they already pay for regulation via business rates. Consequently, making a case for this is likely to prove challenging at this time.

So, in conclusion, when you look at the original RoF shopping list one thing is inescapable – it has not, so far, delivered what many of us hoped for.  The major issue of capacity in England remains unresolved and this continues to be a weeping sore and the occasional application of a Band-Aid to that sore is not an acceptable or sustainable solution.  One might, therefore, be forced to conclude that, so far, RoF has proved to be an expensive programme that has not delivered what was hoped for and that the national problem with Brexit is substantially to blame for this!