Food supplies and record-keepingPrint publication
In February, it was reported that a Food Standards Agency (FSA) investigation into cumin imports had led to the recall of products containing undeclared almond traces. In the United States, peanut traces have recently been found in cumin-based products.
This follows in the wake of the 2013 “horsemeat” scandal and the subsequent Elliott Review, which called for the establishment of a dedicated Food Crime Unit. Whether the “nuts for cumin” scandal slips quietly away or not, it does highlight – once again – the importance for retailers of guaranteeing provenance. If anything, this could have had (or may yet have) more serious ramifications than the “horsemeat” scandal given that nuts can be fatal to people with nut allergies. The same potential for disaster would apply to, for instance, wheat or dairy products.
The “nuts for cumin” scandal puts the importance of traceability and effective record-keeping back in the spotlight. Article 18 of the General Food Law Regulation  concerns traceability and requires operators of food businesses to keep records of food and feed supplied to their business and also of the businesses to whom they then supply food or feed products. In each case, the information must be made available to the competent authorities on demand. This obligation applies at all stages of the food chain – production, processing, distribution. Failure to comply with Article 18 is a criminal offence, punishable by imprisonment and/or an unlimited fine. Indeed, in January this year, as part of the fall-out from the “horsemeat scandal”, a Peter Boddy pleaded guilty to an offence of breaching traceability regulations, with the FSA commenting that the case “highlighted the importance of food businesses abiding by food traceability rules“.
For all food and feed inputs, you must clearly identify:
- the supplier’s name and address
- type and quantity of the inputs
- delivery date of the inputs.
For all food and feed outputs, you must clearly identify:
- the name and address of the business you have supplied
- the nature and quantity of the products supplied
- the date of the supply.
Retailers and caterers do not need to retain records of the end customer to whom the products have been supplied, but they must keep records of products supplied to them.
Effective record-keeping to enable tracing should not be regarded simply as an overhead to meet a regulatory burden. Effective traceability mechanisms may:
- enable the provision of information within the business to assist in process control and management, such as stock control, quality control and efficient material usage
- ensure a quick and thorough product recall should the need arise
- enable detection of the cause of a problem
- help authenticate marketing claims and provide consumers with reliable and accurate information.
Food businesses should also ensure that they are positioned to defend any claims for compensation which may arise from mis-labelled products supplied to them and to enable liability, should any be incurred, to be passed down the supply chain. You should:
- ask searching questions of suppliers
- ensure you can access at short notice all contracts with suppliers as well as related quality assurance and due diligence documentation
- have a clear organisational structure for those involved in dealing with the crisis, with clearly defined roles and responsibilities
- preserve evidence which may be needed both in bringing and defending any claim
- understand the legal framework for compensation claims, both in the UK and overseas
- ensure, where possible, that communications and internal investigations are protected by legal privilege – which may mean involving lawyers from the outset
- collaborate with partners on responsible procurement practice, including considering incentive mechanisms if necessary
- remember that perceived laxness towards consumer safety, or the commission of a fraud on consumers, can cause substantial, even irreparable, brand damage.
The Walker Morris Food and Drink Group can advise you on how to take the steps to ensure compliance with the traceability rules; how to minimise the risks of liability; how to defend any claims; and how to pursue suppliers for compensation.
 Regulation (EC) 178/2002