Elspeth Macdonald, deputy chief executive, Food Standards Scotland on the importance of governance for creating trust with consumers, the problem of a unified approach for the food supply chain and what “good” looks like.
Food Standards Scotland, Scotland’s new food regulator, was created in April 2015, taking over the functions previously carried out in Scotland by the UK-wide Food Standards Agency. As the “youngest” agency at the table, the comparative aims of The Governance Trap were particularly relevant to understanding our experience. Both the role of governance in regulation and the risk of ‘the governance trap’, are aspects we need to consider in regulating Scotland’s complex food supply chain.
Failures drive regulatory change
Failures drive modernisation in food regulation. There is a raft of legislation regulating the production, processing, distribution and sale of food and animal feed. Much, but not all of this, originates in Europe.
[pullquote class=”left”]Taking greater account of how food businesses are governed is something that we want to feature more in our future regulatory approach.[/pullquote]A number of incidents in the 1980s and 1990s – including the safety of animal feed and the BSE scare – caused consumers to lose confidence in safety and standards in the food chain, and brought about significant changes to the way in which food was regulated in the UK.
When the European legislative framework for food safety was subsequently modernised in the 2000s to move from vertical Directives to directly applying regulations, the regulations were structured to take a more integrated ‘farm to fork’ approach underpinned by general principles and requirements.
Towards general principles and requirements
This General Food Law Regulation, published in 2002, is the foundation of EU food and feed law. It lays down general principles, requirements and procedures that underpin decision-making in respect of food and feed safety, from production to distribution. The regulation aims to ensure a high level of protection of public health and consumer interests, alongside effective functioning of the internal market.
It is supplemented with a number of horizontal regulations, setting out various specific and general requirements that food business operators must comply with, depending on the nature of their business and the products being produced or handled.
A ‘Food Business Operator’ is defined as “the natural or legal persons responsible for ensuring that the requirements of food law are met within the food business under their control”. There are also regulations that set out requirements of the Competent Authority, and what they are expected to do to ensure compliance with food and feed law.
Focus on compliance
To me, ‘good’ looks like consumers being protected and having access to safe food. A fundamental principle of food law is that primary responsibility for food safety is borne by the food business operator, and that every operator along the food chain should ensure that food safety is not compromised. An operator is often made up of many units of food business, know as ‘establishments’.
In the UK, establishments tend to be regulated as physically separate entities. As a result of this structure if a food business operator runs a number of establishments, and each is regulated separately, regulators may focus more on compliance within each establishment, and less on the food safety culture and governance within the food business.
A prescriptive legacy
It is useful to consider why this might be the case. Whilst food law has been modernised, some of it, particularly relating to the production of red meat, retains a significant degree of prescription that with limited exceptions requires the permanent presence of the regulator.
This can lead regulators to be focused on checking compliance with prescriptive or technical requirements (which don’t always focus on the modern-day food safety risks) rather than assessing to what extent food safety features in how the business is governed, and taking a more holistic view.
Furthermore it can encourage regulatory interventions at establishment-specific technical or prescriptive measures, rather than addressing issues through governance. From the regulated entity’s perspective some businesses may react to government inspection rather than take a proactive approach.
Confidence in management
‘Confidence in management’ does feature in food law as one of several factors that regulators take into account when assessing the frequency of certain official controls (others include audits and inspections to verify compliance, etc.). But again, this can divert attention to how much confidence the regulator has in the technical management within an establishment, rather than the extent to which food safety features in how the business is governed.
Single regulatory approach will not work
To me, ‘good’ looks like consumers being protected and having access to safe food. Taking greater account of how food businesses are governed is something that we want to feature more in our future regulatory approach, as we design regulatory systems that are sustainable for the future.
It was useful, therefore, to take part in the wider discussion with regulators from industries where governance does feature more in regulation and addresses questions such as: are there limits to governance, or is there a danger in over-reliance on governance?
Scaling governance was discussed as a challenge, and for a sector like food – where there is great diversity in the size and complexity of regulated entities – a single regulatory approach that works for multinational food businesses is unlikely to be the right solution for smaller businesses.
What good looks like
So what would ‘good’ look like? To me, ‘good’ looks like consumers being protected and having access to safe food, and that this is achieved by food business operators throughout the supply chain taking primary responsibility for producing safe food.
Effective regulation would take greater account of governance and food safety culture, and in addition to resulting in good outcomes for consumers, this could also reduce the burden of routine inspection and checks on both the regulated and the regulator. So perhaps in food regulation, there is scope to plug what might be a governance gap, whilst seeking to avoid a governance trap.
The views expressed in this article are the author’s own and not necessarily shared by Solvency II Wire.
The event was held in London on 03 March 2016 and hosted by DWF LLP.
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