On Colin Wallace’s point about fixed-penalty notices, in trading standards we have been using fixed penalties for quite a while now in areas such as underage tobacco sales, home report legislation and energy performance certificates, and that fixed-penalty regime has worked successfully.
I can see that such an approach—not decriminalising the issues, but having a lesser penalty—would be advantageous, and I support Colin Wallace’s point about the need to move the process forward. Feed enforcement is currently at a very low level among local authorities in Scotland, and there are big disparities. For example, City of Edinburgh Council and Glasgow City Council hardly do any feed inspections, because they do not have that many farms in their area, whereas the more rural authorities, such as those that cover places such as Inverness and Aberdeenshire, which have feed and food businesses in their area, have driven up standards internally.
However, across the board in trading standards and, to a certain extent, environmental health, capacity and resource are diminishing as councils reduce the staff head count. It is a case of maximising the staff that we have. I hope that some form of joined-up approach, whether on a regional or an interauthority basis, will be adopted to drive up those standards and those competencies.
Following on from that, the Scottish Government rural payments and inspections division and the Animal Health and Veterinary Laboratories Agency must adopt a more joined-up approach when it comes to passing on intelligence and information to each other on who has been inspected and when they were inspected so that there is no duplication. That is extremely important. We have diminishing resources, so we need to use them effectively.
Our interpretation of the bill as drafted is that without the necessary and appropriate controls we could end up with some pretty disproportionate enforcement action, if we take it to its logical conclusion. That is not to say that I do not agree with the principle of what you are trying to say, but we have to ensure that the bill does not result in some pretty calamitous outcomes, which is what—on our reading of it—it could end up doing.
I completely agree with Archie Anderson’s point about what happens if the food is not condemnable. There is also an issue about proportionality and about the consistency of interpretation of provisions such as those on labelling, which are very complicated.
We would like a two-stage approach to be built into the process. First, there should be a right to challenge the decision on whether the food should be seized and destroyed. The food should not just be taken and destroyed, at which point someone can appeal the decision and have the monetary value made up, because some important things are at risk. For example, consumer confidence is dented when there is a product withdrawal and damage is done to the supplier and the producer.
In our case, if we are forced to withdraw a product—let us say that it comes from a small Scottish producer in the Borders—because of a misdemeanour on a label, there is no guarantee that that slot will be filled again by the same small indigenous Scottish producer. It will very quickly be filled by something else, so there is damage to the producer as well as to consumer confidence. There is also damage to the retailer, as a result of a response that might be deemed to be disproportionate.
When there is an issue of food safety, we are very clear about what happens and there is regulation that deals with that. There is no question but that the product has to be removed immediately. Even in the case of horsemeat, when there was not an issue of food safety but there was an issue of consumer confidence, my members removed the products immediately. There was no question about that and it all came off the shelves. However, if the issue is to do with labelling rather than safety, there is a question of proportionality. Is it just about a misspelled label? Is an ingredient wrong? Is the product misbranded? Those issues could all be considered.
There is also the issue of consistency. Is our interpretation of the labelling regulations the same as the enforcer’s interpretation? It might not be, so we need the ability to appeal. Given that, from April, this area will be governed by the FIR, we can bring it under the primary authority arrangements, so we can have those checks and balances.
Everybody would accept that the bill will not deal with such matters around the horsemeat scandal, for instance. However—and considering the good intent of the Scottish Government—we cannot, after a horsemeat scandal, not have that in our thoughts as we seek to bring in measures to protect the quality of the brand and so on.
Food fraud is a sexy title, but we have heard evidence that the issue is much more common with cod and haddock. Things need to be put in perspective, which is where the bill comes in. This is not all international fraud; it can be about cod and haddock, or lamb and beef—about what is in someone’s curry on a Friday night. Will the bill tackle such issues? Does nobody want to comment? I suppose that you do not want to speak about the bill and talk about cod or haddock, rather than horsemeat. David Martin wants to speak—I have provoked someone.
Before I answer your question, I will offer a rebuttal to Mr Wallace’s point: the Scottish Food Enforcement Liaison Committee cannot hand out assured guidance that is backed by statute and enables people to know that if they follow the guidance and behave themselves they are within the law and have nothing to worry about in relation to enforcement action.
On resources, we said in our submission that our members are concerned that a move from having a single body that does everything across a single market, which is what the UK is, in effect, might lead to resources and expertise being denuded. The UK is a very integrated market, particularly from our perspective; our members throughout the UK are probably the lion’s share of the export market, if not the only export market for Scottish producers. I have seen the evidence that other witnesses have given, and the Scottish Retail Consortium has discussed the matter with the Scottish Government, and we are aware that there will be memorandums of understanding and protocols. That is all fine, but we would appreciate having a lot more detail now, as opposed to having to hope that everything falls into place after the bill has been passed.
The area is far too important for us to take a chance on it; we must be absolutely sure that the new body, when it is set up, has exactly the same resources—not a penny less—and that the resources go to everything that we want them to go to. We must have consistent, co-ordinated advice and the necessary access to and influence over the appropriate advisory committees. There is currently an element of taking things on faith. We are slightly sceptical, but we hope that, at the end of the bill process, how everything will work will be clear and transparent.
Public health is an additional area that the new body might be asked to deal with. Any addition to the body’s scope should be properly resourced.
Members of the committee might be aware that over the past three years the retail sector provided £95 million to the Scottish Government in the form of a public health supplement. The supplement would be an ideal funding source for action on public health and obesity. However, we are still clueless about how the public health supplement has been used to support public health. There is no clear audit trail on how the money has been used. Money is coming in from us again this year, which is specifically targeted for public health.
I echo what Colin Wallace said about the ethos. Trading standards officers—and councils—are more focused on their single outcome agreements with the Scottish Government, and their individual service plans and business plans are very business friendly and orientated towards business support. We want to drive up compliance by giving advice and support. We understand that businesses are more focused on their operation than on considering trading standards and environmental health law. Trading standards enforces something like 1,200 different acts and regulations, so we understand the complexities of the law for business.
As Mr Wallace said, prosecution and reports to the fiscal are a last resort. However, there are habitual offenders, albeit that they are a negligible percentage of business operators, who persistently try to break the law with impunity.
It is about driving up compliance by supporting local businesses and helping them to thrive and be successful.
Previously, trading standards was called consumer protection; I never liked that name. Our ethos was that we were enforcers and the first enforcement was written reports to the fiscal. We have stepped back from that approach and we now take a more light-touch approach to enforcement. I echo Mr Wallace’s point that we are there to advise businesses and support them as opposed to using a hammer to crack a nut, but sometimes enforcement is necessary.
The Scottish Retail Consortium is looking at fixed-penalty notices from a different direction; we are the regulated, rather than the regulator. From our perspective, we are a little bit more sceptical about fixed-penalty notices. We understand some of the rationale behind trying to make justice more expedient and cost effective, but if that line is to be pursued, we would be keen to have safeguards built in. Our members’ experience is that fixed-penalty notices can often lead to a tick-box approach to enforcement that does not really drive better performance or compliance. Such an approach deters retailers from coming forward for advice, because they are worried about more penalties for minor infringements; it makes it easier for a penalty to be imposed.
There is also an issue around the burden of proof, and I note that the explanatory notes state that future regulation will look at whether the test will be beyond reasonable doubt. Obviously, we would support that.
We think that the move towards FPNs will lower the bar somewhat and make businesses more hesitant about coming forward for advice and speaking to the enforcement agencies about compliance, because it will be much easier to slap a notice on someone for what is, in effect, a minor infringement.
Unscrupulous retailers might regard fixed penalties as the cost of doing business. An FPN will not necessarily have the impact that being taken to court and pursued for a criminal offence would have. For that reason, we said in our submission that in light of the FPN approach we would like there to be an acknowledgement that much of the provisions will be brought into the scope of the primary authority arrangements. That would deal with a lot of what Tony McAuley talked about, and I know that previous witnesses gave evidence to the committee on the advantages of such an approach.
The Scottish Government introduced the primary authority arrangements in the Regulatory Reform (Scotland) Act 2014. We thought that that was an admirable move, which we very much supported, and we have been working with the Scottish Government on a range of areas in that regard. The issue is most pertinent to food regulation. If there is a move towards dealing with more infringements by FPNs, the approach would provide us with a safeguard, in that we would have the due diligence, and dialogue with and advice from the enforcement agency could be sought without that necessarily leading to punishment. If the FPN approach is to be pursued, we want much of what we are talking about to be brought into the scope of the primary authority arrangements.
On labelling, which links to the FPN point, the better regulation delivery office has set up a group with retailers in England to look at how the primary authority will deal with the provision of food information to consumers regulation when it comes into force next year. The FIR is a complicated regulation, which will change a lot of the law around labelling. To be honest, the interpretation of the regulation is still very unclear from the perspective of both regulated and regulator.
It is good to have a mechanism whereby we can agree on our understanding of what is required, because no one wants to break the law. People want to stay on the right side of the law, but they want to know that there are safeguards.
I will try to be brief, because some of the issues have already been mopped up. I have asked this question at each evidence session on the bill. It seems bizarre that, at present, officers have the power to seize unsafe food and courts have the power to destroy or dispose of it, but that does not apply to fraudulent food. If something is claimed to be lamb but it is beef, technically, the courts do not at present have the power to seize and destroy it. They will have that power. My understanding—I do not know where I get it from and I am happy for the witnesses to tell me what they think—is that the bill’s policy intent is to deal with not minor labelling infringements but fairly blatant food fraud within the food chain and in the retail sector.
Are witnesses content that officers should have the power to seize food and that courts should have the power, if need be, to destroy fraudulent food? It seems bizarre that trading standards officers could seize and destroy trainers that are not Adidas or Nike but that, when it comes to food, they do not have that power. Does the bill redress that balance? Does it do so in a commensurate and measured way?
I think that it is the right thing to do anyway but, more important, is there any evidence that, when food fraud has been identified, the food has continued to be in the food chain because the powers are not there to remove it? Is the approach that is taken in the bill right? To what extent is there a problem?
Thank you, convener.
I agree with Mr Morton about labelling. I had an interesting meeting with Coca Cola. Did members know that Coca Cola adjusts its formula in every country, to meet the local requirements? I found that interesting. I do not know how the formula varies between the UK, France, Luxembourg and wherever, but it changes throughout the world, which is quite interesting.
On the question of who should sit on the board, David Martin is a sceptic in a sense. I agree that the board could possibly be bigger, as I am sure that there are many people out there with the required expertise who are not the Asdas or the Morrisons, or the retail consortium guys.
I was trying to get at what prevents you from adopting such an approach now. There is no legal impediment to doing that at the moment. I realise that the new food standards agency could be a driver for that, but is there anything that prevents you from working more closely together and using the limited resources to better effect at present?
Let us sweep up any points about the retailers’ view of fixed penalties.
Is moving away from reports to the fiscal and prosecutions a consequence of your taking a more light-touch approach, or is it because a realistic view is being taken that making reports to the fiscal or pursuing prosecutions is very time consuming, expensive and uncertain in its outcome, so the fixed penalty in the bill should be used?
I presume that we have reduced the number of reports to the fiscal and prosecutions. How many fixed penalties would you expect to issue? Has there been any calculation of that in the analysis of the use of fixed penalties? What makes the fixed-penalty notice an enforcement tool? What creates a deterrent? Is it the awareness that you are prepared to use it and, indeed, the level of use? A year later, will politicians start asking why you are not using the fixed penalties?
Most of the questions that I was going to ask have already been asked. I am interested in the points that have been made by Mr Morton and Mr Martin. Last week, I divulged the fact that I was a grocer for nearly 20 years, and, with the greatest respect, I do not agree with the points that Mr Martin makes about environmental health officers. I always found them quite amiable and reasonable, and they tried to help before they came along and, as Mr Martin would suggest, stuck the boot in. They are reasonable guys.
Various proposals were made on the size of the board. Three members and a chairman is too few. How many members do you think should be on the board, and what type of people would you like them to be?
Bob Doris will ask the last question.
I am sure that we will return to labelling, because there have been some issues there.
10:00
We condemn food because it is unfit for human consumption. No one has any objection to that whatever. However, it would seem ridiculous to condemn food that is fit for human consumption. It is true that someone is committing a fraud by selling lamb as pork or pork as lamb. However, to take your analogy with the trainers, when trainers are seized they are often sent to charities. There is no reason to condemn the food. Fraud is committed when food is sold under a different name, but that does not mean that the food is condemnable; it should be given to charities to use. For heaven’s sake, do not condemn good food.
I am happy to jump in. Having provisions to threaten the withdrawal of a product on the basis of labelling will not solve the problem of whether a fish is cod or haddock, because such provisions are for a reaction after the event. The problem needs to be dealt with much earlier in the supply chain.
We need to be sure that the supply chain has integrity. For example, when a retailer gives a supplier a specification for a product that contains elements of a fish, the retailer must ensure that that is exactly what they get in return.
Uel Morton is right that there is an onus on retailers—the horsemeat situation increased the pressure on them to do this—to ensure that they are satisfied not just with how they retail a product but with their supply chain all the way to the end. The only way in which we will do that is through a lot of the measures that we are already taking, such as targeting our testing, sharing our intelligence, auditing our supply chains more often, and taking complexity out of the supply chains—that was an issue in the horsemeat situation—and shortening them. We are doing unannounced audits on suppliers—they dislike that, because it drives up their costs, but it secures our supply chains.
Such steps are being taken but, to be frank, the bill does not deal with any of that. The bill deals with labelling.
We have talked a lot about food safety and labelling, and enforcement in that regard. The new body will also need to consider how to improve the national diet. The bill as drafted does not make enough provision on how that will happen. David Martin mentioned obesity; we can see the effects of obesity in Scotland in the context of heart disease and other health problems.
I know from speaking to ministers that there is a desire to create a healthier and better Scotland. At the moment, our citizens are making the wrong choices. I would be interested to see how the committee can influence the bill so that it provides greater scope for the new food body to take more of a lead and do more educational work.
I have been at Quality Meat Scotland for eight years, and every year that I have been there we have done more and more work with young people in schools. There is a great desire for more information on how to have a healthy and balanced diet. We need to take the issue seriously and influence the citizens of tomorrow while they are at primary school and at a stage at which they will take on information, so that they will put their learning into practice when they have grown up and are raising their own families.
I agree with what Colin Wallace said about the lack of cooking skills. We do a lot of work on that, but we are a small body with a limited budget. We would like the new food body to be able to really take the issue on and we would be delighted to work with it—putting our little bit with its bigger bit—to make changes in the area.
What additional powers and responsibilities should the new agency have? Does it have any powers and responsibilities that it should not have been given?
To some degree, but I posit that if we consider the challenge that is involved in a trading standards officer taking a retailer to court compared with the officer putting a fixed-penalty notice on the retailer, there is a difference not only in relation to the burden of proof but in how expedient the action is to take. If we are going down an FPN route, that is fine—we can accept some of the arguments around the experience of that system. However, we want to ensure that the notices are handed out fairly and proportionately and that there is an ability to some extent, as there would be through the court process, to challenge some of the decisions.
We have 32 local authorities and sometimes, I regret to say, they take 32 different decisions or interpret things differently. From our perspective, when it comes to a national regulatory approach, we do not want that regulation to be interpreted in different ways. However, everyone is human—that is what happens. Therefore, mechanisms have to be in place to ensure that where there is a difference of opinion, for example, there is that check and that safeguard. Frankly, retailers should not have to accept an FPN simply because a trading standards officer or an environmental health officer has decided that that is their local authority interpretation of what should and should not be on a label, for example.
10:15As I mentioned with regard to the FIR, there is still not agreement between the enforcer and the regulated on what a lot of this will mean. The fact is that a lot of the regulation on food is incredibly complicated. I am certainly not criticising trading standards officers or environmental health officers—I am positive about them, and our members tell us that they discharge their duties in a good way in Scotland. However, things slip through the net and people interpret legislation differently. It is not often that all businesses and the regulator read a piece of regulation in the same way. We just want to ensure that, before it gets to the point of FPNs, everybody is on the same page and that is where the primary authority kicks in. At present, if someone is taken to court, the two parties can fight it out and prove who has the right interpretation. If we just hand out FPNs, there will not be the same ability to challenge.
The reason why the Scottish Government introduced the primary authority arrangements last year is that, as my members, including businesses that operate throughout the UK, have told it, frankly, when it comes to this sort of issue, the regulatory environment in England and Wales is better, because we have a closer working relationship with the local authority trading standards departments and we have that safeguard. Businesses are a lot clearer. We have the due diligence, the advice and the assured guidance, which we do not have in Scotland.
Finally, if we are going to issue FPNs, our plea would be that they be issued not just to the store or store manager but to headquarters. Our members want to know if a store is perceived as not being compliant. If an FPN is just handed to the store, obviously, the chain of command might not feed that all the way up to the top.
It is important that the legislation targets the right person. To some extent, the retailer is a soft target, because he is there and he is available. As we know from the horsemeat scandal, the substitution of beef with horsemeat in ready meals and burgers occurred further down the chain. It was not committed in the UK. It happened in Ireland, in the case of the burgers, and in France, with a background in the Netherlands. It was a complicated international food fraud.
It is important that in our efforts to move forward on this and promote the integrity of Scottish food, we look at all levels of the supply chain. Quality Meat Scotland is doing the work on farms and in abattoirs to underpin the integrity of our brands, but there is a gap, which we have started to look at since the horsemeat scandal, in terms of the integrity of further manufacturers, what they are doing with products, how they are doing it and the audits that are required.
The committee should consider whether we are targeting the right people, given who is actually committing the fraud. It is important that the penalties are proportionate to the amount of gain that the perpetrator has had. There must be some link with turnover or the degree of profit that that person has had. For example, horsemeat cost 70p a kilo and beef was about £3.20 at that time—it has since gone up to £4 a kilo. You can see what the adulteration factor of 25 per cent can do in terms of generating additional margin. We need to target the legislation at the unscrupulous people further back in the chain.
Are there any takers for that question?
I understand Mr Martin’s point, given his members’ perspective, and I take it on board.
I want to reassure Mr Martin. The environmental health ethos is to provide advice, support and guidance to businesses, with the ultimate aim of achieving compliance. Environmental health officers are there to help businesses, and they spend an awful lot of time doing that. Enforcement is rarely the first resort; it is mainly the last resort, and it is always done to protect public safety—we would much rather have compliant, successful businesses, which contribute to the local economy. Only when people are minded not to comply or are minded to be obstructive, and at the end of a particular process, are sanctions applied. We do not do that at the start of the process.
I am afraid that I cannot agree at all with a lot of what Mr Martin said. I do not know whether the committee is aware of the Scottish Food Enforcement Liaison Committee, or SFELC, which comprises enforcers, the Scottish Government and trade bodies such as Scotland Food & Drink. It is a multi-agency body that has met regularly for a number of years, including under previous Administrations in its previous incarnations. The body provides excellent consistent advice to enforcers across Scotland, including training advice, matrixes for qualifications and guides as to how the industry should comply with legislation and how enforcers should apply it. The model is actually envied by people in England and Wales. In Scotland, we benefit from having 32 authorities that can all get together regularly in one room. That group works really well, so I feel that we are more than adequately covered in that regard.
On fixed penalties, the current code of practice for food visits means that, if an officer finds a contravention, they notify the food business operator. If the contravention is still there when the officer goes back, they have to escalate the issue. After maybe two or three visits, an improvement notice will be served. Really, it is ridiculous to have to do something like that over a repeat contravention. As the convener said, it takes time to write the reports, go to court and so on. When there is a repeat contravention, a fixed-penalty notice is a means of dealing with the issue without it having to go any further.
You make a reasonable point. The food should be seized and destroyed or directed elsewhere. However, my point is about whether the food is put back into the food chain and returned to the supplier for the offence to be perpetuated, rather than being seized by the courts and redeployed elsewhere.
From my perspective, the question is what we want to do with the labelling provisions. There is an issue around food safety. If the label is incorrect with respect to an allergen problem, that would be about food safety; it would not be a fraudulent label. Is the label just incorrect? Is there something on it that is misspelled, or is there something on it that has been included that should not have been included? That is a different matter.
Finally, there is the issue of food fraud. Fraud is a criminal activity. Labelling provisions will not stop criminal activity. Uel Morton is absolutely correct: that is a supply chain issue, which needs to be dealt with much earlier on in the supply chain.
I in no way belittle the seriousness of the horsemeat situation, which my members took incredibly seriously—it was a very serious issue. The retailers went to their suppliers, they gave them a schematic and asked them to give them a product and to label it, and the retailers would then sell that product. What they often asked for was British beef; what they got was neither British nor beef.
As Uel Morton has said, much of the problem stemmed from complex supply chains that were outwith the UK. Since the horsemeat issue, our members have upped the amount of random testing and auditing that they have done, as well as sharing intelligence. A working group has been set up under the Food Standards Agency. With other industry groups, our members now pool intelligence to target testing at at-risk products and supply chains. There is more auditing of supply chains, including supplier to supplier. In particular, there are more unannounced audits on suppliers, much to the consternation of some of them.
A lot of things are happening in order to root out fraud, but they have to be targeted and evidence based. In the case of horsemeat, we tested more than 10,000 products. Of those products, 0.1 per cent revealed evidence of horsemeat above the 1 per cent threshold, so they were 99.9 per cent clear. Again, I do not cite that statistic to belittle the seriousness of the incident, but it shows how targeted we must be to root out that fraud.
We need to deal with the supply chain. That involves evidence sharing and adopting a risk-based approach. It is about getting our resources in the right place. Will a label change all of that? I do not think so. If it is possible to defraud a product, it is possible to defraud a label.
In our written submission, we suggested that three members and a chairman was too few. We feel that it is important for a balance to be struck so that there is a broad representation of people who know the industry and how it works. At the moment, the FSA national board does not achieve that because it does not appoint industry people—it says that they would have a conflict of interests. I take the opposite view, which is that we need a balance between independent board members and members who have detailed industry knowledge of how supply chains work. It is also important to strike a balance between having enough board members to reach a consensual decision on any issue under discussion and not having so many board members that the board becomes unwieldy or too expensive to service. As a layman, I would suggest having between eight and 12 members.
There are some stumbling blocks in the sharing of information between the Scottish Government and local authorities relating to data protection and data sharing. Those obstacles are not insurmountable, but I am aware that there have been data protection issues to do with our passing on information on our database to SGRPID, the Scottish Government and the AHVLA.
I will give you an example, which relates to underage sales of tobacco. Trading standards officers have the power to issue a fixed-penalty notice when a trader sells cigarettes to someone who is under 18. Again, it is my staff who are involved in the process rather than me. The first fixed penalty is £200; there is an escalator if there is a second offence, so the amount goes up to £400. If there is a third offence, again there is an escalator, so the amount can be £600. On the third offence, we can apply to a sheriff for a banning order. That trader will be banned from selling tobacco products for a period of time that is set by the sheriff.
Incremental penalties are available, because mistakes happen. If a trader sells cigarettes to someone who is underage, in the first instance they are given a fixed penalty. Hopefully, that conduct would be driven up to compliance as a result of that fixed-penalty incident. The habitual trader—there are some who habitually sell cigarettes to underage buyers—will break the law because of the financial aspect: he is making more money selling cigarettes to underage schoolchildren than he is losing by paying the fixed penalty. That is why there is an escalator; we hope that it assists with driving up compliance in such cases. I do not have the figures with me.
Mr Martin, will you tell us what you said?
Does anyone else want to comment on public health?
Yes, there should be a duty to report. A lot of businesses work closely with environmental health and give us information about areas that they are sceptical and concerned about, because they know that we are there to help and to provide them with support, advice and guidance. The reason why I say that they should have that duty is that there would then be no reason for them to turn round and say, “We weren’t aware. We didn’t think there was anything wrong.” If they know that there is a duty on them, which is what we would advise, we can assist them in understanding their responsibilities.
I agree with everything that has been said about transparency. My one concern is that local authorities have consistently reduced their sampling budgets over the past 10 years to make savings and that has caused difficulties in relation to properly targeting risk-based approaches to local and national food sampling. Local authorities want to do as much as they can. Ironically, once the horsemeat DNA scandal broke, all of a sudden a flurry of samples was taken. The scandal might have been found out earlier had local authorities been sampling at the rate at which they had done previously.
Is the bill in its current form sufficient to assist you in that aim? Does it make the difference that you would want it to make in order to get that focus? It is the bill that we are looking at today. Does it do the job to help you ensure the outcome that you would want?
A fish processor recently told us that it is heavily audited by local environmental people and constantly by supermarkets. It sells into the bigger UK market and its worry is that, if labelling requirements became more prescriptive in Scotland, it would have a difficult job and incur costs in dealing with the big supermarkets. Does anyone want to reflect on that evidence from a producer about the balance?
I will try to fit a question in, but first I praise Mr Morton and Mr Anderson as the only two witnesses who have told us who should be on the board, while everyone else has ducked the question. I thank them very much for that.
On the public health levy, it is worth putting on record that it was given that name because it targeted the largest retailers selling both alcohol and tobacco.
I will not go back to the detail on labelling just now. I asked my previous question to get some reassurance that there will not be microdetail in labelling, and that the provision is more about food fraud. I think that people readily assume that, if they are paying for lamb and getting beef, that is just wrong. It is not a minor labelling infringement; it is fraud. Likewise, if a retailer is offered a deal for beef that is too good to be true, and the beef turns out to be horsemeat, because the latter is 70p a kilo while the former is £3.80 a kilo, there is a responsibility on the retailer to say something.
I take on board that you would have to follow up such an issue not only with the retailer but right through the food chain, and I am sure that the expertise exists to do that. I wanted to mop up some of those issues because I thought it was important to provide balance.
My question is on how all that fits in with the duty to report. If a retailer, or whoever it is in the food chain, gets a deal that is just too good to be true, and they know it is iffy and a bit dodgy, I would expect there to be a statutory obligation on that retailer to raise that with the authorities. Is there now a duty to report when it is believed that there could be an infringement? Some views on that would be welcome.
I do not know how widespread that is, but I praise the retail sector for its action. A representative from Tesco came before the committee the other week and said that, since the horsemeat scandal, there is much more transparency in the testing that Tesco does and in reporting the results.
Tesco is working in partnership with food standards experts and other large retailers on taking a more risk-based targeted approach to testing. There was a feeling that, before the horsemeat scandal, people sometimes tested to validate what they thought was safe. We need to build in the risk element and target products that it is more appropriate to test.
There are two aspects to my question on the duty to report. Do people see the duty as an important part of the bill with regard to everyone meeting their responsibilities? Is enough being done to provide transparency in testing by the large retailers? Is that better done voluntarily, or should we consider putting it on a statutory basis?
That is not a very brief final question, but it fits in well with previous questions.
I have an ancillary point to make. The issue comes down to something as simple as the aye been syndrome—the view is, “It’s aye been that way, and that’s the way it works.” I think that the new food standards Scotland will act as a catalyst in allowing us to review and take a view on all these areas, and to take a more sensible approach for the betterment of food safety in Scotland.
Those are good examples. Mr Martin, that is perfectly reasonable, is it not? Dealing with repeat offenders, giving warnings, help and assistance, making people aware and taking an incremental approach towards punishing the people who are ignoring the law—is that not reasonable?
I will move on to labelling, given that we have had quite a good balance of views on the issues to do with fixed penalties. We do not need to resolve the issues now—we will do so from the evidence that we have received. Other aspects that have been mentioned are labelling, the FIR and the legislation that is working its way through.
I would not necessarily put a number on it, but there are certain principles to be observed. The board must be fully independent and free of any special interests, whether from industry, public health or any other sector that has an axe to grind. On that basis, I would preclude the retail sector and industry. As long as there are people around the table who have the relevant expertise and understanding of the sectors with which they are dealing, that will be satisfactory and will prevent any special interest bias. The Scudamore review did not manage to achieve that, as it did not have the expertise to deal with retail and anyone beyond the farm gate.
From our perspective, the board needs to be truly independent and not vulnerable to being captured by special interests or pressure from the outside. It must also be free of those on the inside. As long as there is relevant expertise and industry knowledge, I would not necessarily suggest that there should be people from industry around the table.
I did not mean that public health should not be represented. I was talking about, for example, those who lobby on behalf of public health interests—lobbying organisations or other organisations, which are perhaps equivalent to the SRC but on the public health side. There absolutely should be a public health input—that is right—but it should not necessarily come from people who have a slightly more political agenda.
Mr Wallace made an interesting comment about the nuts and bolts of the bill and I want to ensure that I understood it correctly. You support the idea of fixed-penalty notices and the fine scale, but you query whether the bill would focus on food safety and food fraud rather than on administrative and bureaucratic breaches, which you said could be dealt with in a more streamlined fashion. I do not want to put words into your mouth, but I think that that is what you said. I would like to be clear about what specifically you were saying about that.
Job done. Are you all working together, as suggested, and sharing such information?
Thank you, Bob. If you agree, I will ask the panel to focus on the duty in the bill and the inspections. I would like quick responses, please.
I will speak on feed enforcement, which historically has been one aspect of trading standards enforcement. There is a lack of capacity in local authorities to exercise official controls on feed enforcement and there is scope for the new food body to take on some of that work centrally, or through a regionalisation process. We could build capacity for that work by having neighbouring authorities join up—one authority could lead on such work for the east of Scotland, one for the north-east, one for the north-west and so on—and by looking at economies of scale.
Expertise and capacity at a local level are gradually diminishing. The new food body could take a lead in that area and provide some momentum to drive up compliance in the area of feed hygiene and enforcement.
No. It should be taken from the people who committed the fraud.
I have read the bill and I do not feel qualified to give you an answer to that, because I am not a lawyer. I would push that question back and say that we need to make sure that the bill can achieve that aim.
I do not think that that is the particular issue; the concern is about misleading the consumer. We would like accurate labels, so that the consumer can make up their own mind about what they are buying. The consumer should not be misled.
You mentioned the haddock, whiting and cod issue. People should get what they ask for. Another issue is meat substitution, which could have a grave effect on people of certain religions, who would be outraged at eating something that they thought was something else.
Often, people are misled by accident, but sometimes, it happens by design. We must deal with the issue appropriately and proportionately. The bill sets out provisions to deal with all such issues.
May I make another point, convener? We need to make the distinction between what we traditionally regard as public health, which is about safety, and the dietary and nutritional aspects of public health. When you ask a group of professionals about public health, they will think about the safety aspect, but the issue needs to be considered more widely.
You mentioned that part of your role is to keep people informed about legislation. Have you been briefing people about their responsibilities from 2015? As David Martin pointed out, the food information regulation will be law in 2015. Do people know that, and have you made them aware of that in your role?
That point is well made.
There is an ambition on health and nutrition. The committee is interested in whether the bill will give us an opportunity to create healthier lifestyles by promoting healthy eating and dealing with obesity. Does that come into the same sphere?
I would like to see one specialist group on the board—the consumer. The consumer should be represented on the board, as they are the end user who is going to eat the stuff. They should be represented fully.
I know that Bob Doris wants to ask another question, but I think that Rhoda Grant wants to follow up on that.
Enforcement provisions are available now, but they can end up in court by referral to a procurator fiscal and in many cases that may be like using a sledgehammer to crack a nut. We are looking at slightly lower-level offences. I know that the convener has said that we will move on to labelling issues. Currently, powers are available in relation to the labelling of unsafe food, but there are no powers for dealing with incorrect food labelling as a food standards issue.
Enough powers are available to deal with food that is potentially unsafe and environmental health professionals can deal with that, but food that is of a lower safety level—not necessarily food that is incorrectly labelled—could ultimately turn out to have food safety implications and that could be much better dealt with using lower-level measures such as fixed penalties.
How do we do that? What does the bill need to say, not in legal jargon but in general terms?
Environmental health personnel will discuss that with the people whom they meet on a daily basis. Environmental health is much wider than just food safety, although food safety is an integral part of that, but when environmental health personnel are dealing with other issues they advise people about what may be on the horizon.
The institute supports the proposals on compliance notices and fixed-penalty notices. Environmental health officers and other associated food safety professionals provide a lot of assistance and support and deal with enforcement issues.
We feel that at present there is a gap with heavy rather than light enforcement. Some technical offences could be dealt with much more easily and successfully without criminalising a food business operator. I am talking about issues such as operators not registering a business and other minor matters that are not necessarily linked to public safety or food safety.
Those matters are still important, of course, and need to be dealt with. Fixed-penalty notices were used very well in enforcing the prohibition of smoking in public places—they were used not that often but just when they were required. That approach does not criminalise people who are just trying to do what they are doing and who may be acting with good intentions rather than trying to mislead the public.
There is a lot of working together across the industry and supply chains, and we need to increase that. However, the retailer has a responsibility. Retailers have adopted a global sourcing policy. They are driving what they would describe as costs out of the system, and they are taking tenders for products. That price competitiveness among UK retailers is the driver for the race to the bottom that there sometimes is. Quality can get compromised. That was the driver in the horsemeat scandal. There was someone out there who could supply a product at a cheaper price—it would be possible to get 10 burgers for 80p or whatever it was. The driver was the cost. We know that all retailers have a premium offer, a standard offer and a value offer, but the retailer has to ensure that his supply chains have the necessary integrity.
Okay. I thought that I would give Richard Lyle the last question, but—
I will start with the duty. We may have slightly misinterpreted it in our reading of the bill, and we have no problem with it in principle, but I am at a bit of a loss to understand why it has been included in the bill, given that the food information regulation will make that provision anyway in April 2015. The FIR states:
“Food business operators which do not affect food information shall not supply food which they know or presume, on the basis of the information in their possession as professionals, to be non-compliant with the applicable food information law”.
We will be compelled and legally obliged to report from April 2015 next year anyway, so although in principle the duty is fine, I do not understand why it is in the bill.
Tim Smith from Tesco is right about transparency. The view that transparency is key is shared by all our members, and we need to ensure that we get it right. As I have said, we have, since the horsemeat incident, tested approximately 10,000 products and shared all that information publicly and voluntarily with the FSA. However, the FSA is probably not interested in every single one of those 10,000 tests, so they are probably not a good use of resource. We are probably better off sharing trends with the FSA and making that information public on a targeted basis. That would be an easier way to make the information more relevant and digestible, and more pertinent for enforcement reasons.
Does anyone else want to come in on the enforcement angle, or on any broader issues?
Very much so. We in REHIS are keen to take that approach, but it is all about compliance at the moment. Such work has to be taken forward slowly. We do a lot of work with our communities through food and health courses. It might sound bizarre that we do an elementary cooking skills course, but the number of youngsters in schools and so forth who do not know how to cook is amazing. A lot of their parents are not aware of how to cook things properly and in a nutritious way—the way in which the likes of my mum used to cook, which she taught me. A lot of good preventative work could be done.
I am quite happy to take that on board—
I confess that I did not know that the FIR would be law in 2015, although we are scrutinising the bill. It is important for the people who will have to apply the laws and comply with them to be well aware of them; that might be part of an education programme.
I suppose that I am asking whether you are suggesting that, because the inspection regime currently falls to local government, local authorities should work with the Scottish Government departments that do farm inspections, head counts and the like. Given that the inspectors normally do a particular piece of work, would they require to receive a degree of training? If they were to check something else, how much training would that involve? I can see that the costs that would be incurred in staff developing their knowledge would be a barrier.
Perhaps I misunderstood, because I was looking at the bill as you were talking and it seems as if that will be dealt with in regulations. The idea of a relevant offence will be specified in regulations laid by Scottish ministers. Did you just want to ensure that that provision was as broad as possible to minimise the amount of unnecessary enforcement matters that would have to go through a judicial process, where fixed-penalty notices could be used?
I am not particularly qualified to speak on food issues, but we in trading standards work in the general fraud environment, and horsemeat was an international fraud. It was serious, organised criminals who were involved in that exercise. If those are the people who are involved in it, they will seek an advantage where they can.
It is a matter of traceability, of being more intelligence led and of being able to pass intelligence between agencies so as to stop the frauds happening. That can involve European agencies, international agencies and our own agencies in the UK. That allows intelligence to be passed so as to identify food fraud.
As I say, however, food is not my locus, so I am not qualified to speak on that.
Thank you. Colin Wallace can go next.
11:00
You need to be able to get further back in the supply chain. The point that I am making is that it is not necessarily down to the retailer. He is the guy who is sitting there with the product on his shelf, but he might have been duped by the unscrupulous operator further back in the chain. We need to make sure that the bill has scope to dig into the area between the primary producer and the person who puts the product on the shelf so that we can root out habitual offenders. Those offenders are probably the same people who are not paying their tax returns; people who cheat cheat across a wide range of areas. We need to use intelligence across government to identify where some of those operators are.
In response to David Martin’s point, I would say that one man’s bias is another man’s detailed insight into a particular situation.
On Tony McAuley’s point about feed inspection, the Government has inspectors out on farms from the rural payments and inspection department, but someone should have a look at the inspection process so that we are not sending out different inspectors to inspect different things. We should try to join things up a little bit.
The Scottish Government had a very good programme a while ago called SEARS—Scotland’s environmental and rural services—which took a joined-up approach. In the specific area of feed inspection, there is some scope for streamlining the number of inspectors who go to farms and for ensuring that there is a more joined-up approach between Government departments.
A scoping exercise would need to be carried out to find out exactly what we wanted the Scottish Government enforcement staff to do. It may well be that, in the very early stages, a partnership approach between local authority staff and Scottish Government staff could be developed to build capacity and expertise, and to enable the transfer of skills from local authority staff to Scottish Government staff. There could be a two-stage approach, the first stage of which would involve looking at the problem and working on it together; then, if the Scottish Government staff had the necessary capacity, they could receive training from the local authority staff.
This is not an option that would be used that often. Food would be detained for further investigation to get more information with regard to what is wrong and the implications. There are certain compliance measures that some of the food business operators could take in relation to rewrapping, relabelling or reprocessing that would achieve compliance. You would not need to use the tool in that case, because it would be inappropriate. Enforcers would not be going into businesses and issuing seizure and detention notices willy-nilly every day. It would happen only where the mechanism that currently exists cannot resolve the issue and where there are concerns about potential food safety issues linked to the food standards issues.
10:30
I concur with what has been said about the duty to report. The FIR will come into force in April next year. If a retailer or trader has guilty knowledge of a possible fraud, they must pass on that information. That duty must be applied.
I agree with Mr Wallace’s point about transparency, which is desperately needed. Ultimately, it is the consumer, as the end user, who must have all the information. Something as simple as the substitution of spirits is an example of that. If there is a Smirnoff bottle behind the bar but it is filled with supermarket vodka, that is a simple fraud, but it means that someone is paying a higher price for a branded vodka, or for whisky or some other drink, and getting a substituted spirit. Environmental health can take that as a food safety offence, and we in trading standards can take it as a trading standards offence under the Consumer Protection from Unfair Trading Regulations 2008, so we can be creative about how we enforce the legislation, but more transparency in the marketplace is desperately needed.
You are quite correct. The bill gives that breadth and flexibility to introduce legislation. That will not necessarily be enshrined in the bill, but secondary legislation could come from it.
I will make one final point. The balance is correct; it is the skill set that requires that board members will be specialists in other areas. I think that Mr Martin meant that he did not think that somebody from a certain sector of public health should be on the board. However, to me the bill is all about public health—it is about improving the health of the public and providing the consumer with confidence in their safety. That should be the overarching objective for any board member, and I am sure that it would be because it is the same for yourselves.
10:45
Yes, but Bob Doris wants in. What do you think? Do you want the last question or the second-last question?
I will bring in some of the other witnesses on that point. What prevents you from developing at present the strategies that have been suggested? Do we need the Food (Scotland) Bill to do those things?
That is helpful. From your initial comments, I thought that some things would not be covered by fixed-penalty notices but that was my misunderstanding. I just want to be clear on that. Am I right in thinking that you are not suggesting that something will not be covered by a fixed-penalty notice? This would be a good opportunity to put that on the record, if you think that there is a gap in relation to the future use of fixed-penalty notices.
I see that you have nothing to say about that. Okay.
I would like to ask about food labelling, convener. Is that okay?
I have two quick questions. Bob can have the last question.
It sounds as if the duty to report is dealt with, so I will comment on testing. Testing should be proportionate, otherwise we are wasting resources. I would ask a more fundamental question, though. I would ask, why are we testing? We are testing the product to see whether it is what it says on the tin or the pack, and one of the issues that the consumer faces is that there is too much confusing information on the pack. Some of the logos and symbols that are currently being used do not actually mean anything; they have no legal definition. For example, the Scotch beef logo means that the meat has come from an animal that was born, reared and processed in Scotland, but the saltire on a packet of beef means nothing and has no legal definition. We need to ensure that we are testing for the right reasons. The information on the pack must be relevant to consumers so that they can make a decision and the enforcement authorities can enforce what needs to be enforced.
I have another point on the general issue of where legislation is needed. It relates to food labelling. We in Quality Meat Scotland feel that not enough weight is given to protected food names, examples of which are Scotch beef and Scotch lamb. Those are the two protected food names that QMS operates on behalf of the industry. Arbroath smokies and other products with protected geographical indication status are other examples.
We feel that the new food body should ensure that a robust approach is taken to protected food names, which are given that status because of their quality. Such products usually attract a premium in the market, and we need to ensure that there is no scope for food fraud. An example of what I am talking about is the passing off of inferior products, such as beef from Ireland or Argentina, which is cheaper, as Scotch beef. We need to ensure that the labelling regime takes account of protected food names.
I will bring in David Martin to respond to some of your earlier questions. We heard evidence about how seriously the courts were taking some of those issues. For many of the issues that could be resolved by a fixed penalty, there will be a penalty, whereas previously a lot of issues fell by default because of the expense and the length of time involved and because of how seriously the courts took them. It seems that, on balance, everybody supports the proposal.
You are too consensual, convener.
Thank you—you got the last word. On behalf of the committee, I thank the witnesses for the time that they have given us this morning. The evidence that they have provided has made it an interesting session. Thank you very much indeed.
11:05 Meeting suspended.
Richard Lyle.
Agenda item 3 is continuation of our evidence taking at stage 1 of the Food (Scotland) Bill. We have one more round-table session before we hear from the minister.
I think that we are few enough in number for us to take our usual approach and introduce ourselves before we begin the evidence taking. I am the convener of the Health and Sport Committee and the MSP for Greenock and Inverclyde.
I am chief executive of Quality Meat Scotland.
I am a Glasgow MSP and deputy convener of the Health and Sport Committee.
I am trading standards partnership manager for East Lothian Council and Midlothian Council.
I am a North East Scotland MSP.
I am the MSP for Clydebank and Milngavie.
I am president of the Association of Meat Inspectors.
I am the MSP for Edinburgh Western.
I am a Central Scotland MSP.
I am president of the Royal Environmental Health Institute of Scotland.
I am a Highlands and Islands MSP.
I am a South Scotland MSP.
I am head of policy and external affairs at the Scottish Retail Consortium.
I am a Mid Scotland and Fife MSP.
Thank you all for that.
We have an hour and 10 minutes or so for this session. The main purpose of these sessions is, we hope, to allow the various people around the table to have a dialogue. My preference is always to let the panellists speak but, first of all, I ask Rhoda Grant to get us going with the first question.
The committee has had quite a lot of evidence about the need to pool resources as much as possible in relation to food research, so that we draw in all the information that we need if we are to be more proactive, not in pursuing prosecutions but in using research and knowledge to have a bigger influence. I presume that the witnesses value the current approach and want it to continue.
I see that Richard Lyle wants to come in. I was not asking your opinion, Richard, I was trying to elicit—
I thought that I would come back in on my question, convener.
I will let you back in, as I always do, but first—
Perhaps you cannot see me, because I am sitting up here with the witnesses. I—
Richard, I was trying to elicit a response from the panellists. If they do not want to respond, that is fine, but if they do, I will bring them in first.
You asked earlier whether we think that our collaborative working arrangements are sufficient to enable us to consider and put together all the information and intelligence, and I mentioned the Scottish Food Enforcement Liaison Committee.
I will run through who is represented on the committee. Its members include: the Society of Chief Officers of Environmental Health in Scotland; local food liaison group reps; the Association of Public Analysts; the Scottish microbiological group; Health Protection Scotland; the Society of Chief Officers of Trading Standards in Scotland; Citizens Advice Scotland; REHIS; the Convention of Scottish Local Authorities; the Food Standards Agency in Scotland; the British Hospitality Association; the Scottish Food and Drink Federation; the Scottish Retail Consortium, which is invited to come along; the consultant in public health medicine group; the Scottish Food Advisory Committee; National Farmers Union Scotland; and the Scottish Government rural payments and inspections division.
That gives you an idea of how broad the committee is. A lot of information comes in and a lot of consultation goes out about what should and should not happen. We have the building blocks to be able to continue to take things forward.
My question was badly communicated. I was asking whether you have any influence on the development of research into issues that are pertinent to Scotland. We have heard that Scotland has particular problems with E coli 0157, for example. Will the bill give us more opportunity to focus expertise so that we get to the heart of such issues?
Previous
Subordinate Legislation