CFG
14/05 rev. 1
Foodaware comments on the Food Standards Agency's approach
to Regulatory Decision Making
1. General principles
In its approach to Regulatory Decision Making, the FSA should begin
by following its own principles and put the consumer first. The
organisation regularly expresses its commitment to doing this but
does not always demonstrate the approach in practice. When consultation
indicates that there is a balance to be struck, the FSA should ensure
that the consumer view is given appropriate weight.
Apart from its responsibility for putting the consumer first, the
FSA (under the Food Safety Act 1990) has responsibility for the
development of food policy and the provision of advice information
and assistance…. to public and local authorities, individuals,
and bodies who are not local authorities. The FSA must provide a
clear basis for legislation, information and guidance that industry
and regulatory bodies can understand, implement and enforce and
clarity about the protection the public can expect. The FSA is also
required to co-operate and collaborate with other government departments
such as Defra and the Department of Health and has agreements in
place to facilitate that. Where interests may differ or indeed conflict,
however, it is important that the rationale for any decision or
voluntary agreement is transparent.
Consumers need a good framework of law to ensure their interests
are protected. In the area of food policy the UK/EU now generally
has that, although there are areas that remain unsatisfactory and
need further work. For example, health claims on foods are still
largely unregulated.
Even where satisfactory legislation is in place, without effective
enforcement, it is a paper tiger. That means resources for enforcement
need to be balanced proportionally with the law and in many cases
increased to enable enforcement agencies to do their job effectively.
More resources in terms of money and officer time are needed, for
example, to monitor and, if necessary, prosecute a company that
is inappropriately pushing the boundaries with regard to food standards.
The Hampton Report[1] showed that there
is a very uneven distribution of Trading Standards Officers in England
and Wales. There should be a clear relationship between the level
of resources available and the number of businesses that have to
be inspected within a local area. The number of head offices of
food businesses should particularly be taken into account.
Good co-ordination is essential and the Food Standards Agency (FSA)
and the Local Authorities Co-ordinators of Regulatory Services (LACORS)
do an excellent job, but without officers in the field they are
fighting a losing battle. Foodaware welcomes the Hampton report
with its emphasis on reducing unnecessary burdens on business, reducing
overlapping regulation and inconsistency between regulators. Good
risk analysis at the centre, regionally and locally, is also essential
and appropriate penalties, sufficient to deter those who persistently
flout the rules, are required. A significant opportunity exists
following the Hampton Report for streamlining enforcement agencies
and their activities, for reinforcing local trading standards services
and which recognises the importance of locally delivered inspection,
appropriately targetted and within a national framework. What needs
to be achieved is an efficient and effective service that enables
existing public protections to be maintained. The Hampton recommendations
need to be followed up with concrete action and the new Agency will
need to be given statutory authority and the necessary additional
resources if it is to be effective. While Codes of Practice have
a useful role to play, they are no substitute for good law enforcement.
2. Comments on specific consultation
questions
(Initial italics are
FSA text)
2.1 Engagement:
FSA: We recognise that community-based and ‘hard to hear’
consumer groups, as well as small and medium-sized food enterprises,
may not be reached by or have the resources to participate in formal
consultation. (Annex A, paragraph 10)
- What might be more effective means of ensuring we hear the
views of these stakeholders?
Stakeholders need to be involved from the early stages of policy development,
and kept informed throughout the process, if they are to contribute
in a meaningful way to the final outcome. This is particularly important
for small and ‘hard to hear’ groups who do not have the
resources to track developments themselves. Regular updates on specific
dossiers are very helpful. These should explain the issues under discussion,
what stage they have got to, how they may impact or make a difference
to consumers in their daily lives, and any particular opportunities
for stakeholders to contribute. The updates on nutrition and health
claims and fortification proposals are examples where this is already
done although they may not be very accessible to all consumers. In
sum, it is not sufficient to seek stakeholders’ views on policy
issues only through formal consultations once a EU proposal has been
issued.
We are strongly in favour of demonstrable openness and transparency.
We, therefore, welcome the fact that FSA Board meetings are open to
the public and can be viewed on the web. But these are business meetings
and can be extremely dull, depending on the agenda. They are not the
‘b-all and end-all’ of engagement with the public and
the extent to which participants feel involved is very dependent on
good chairmanship and the quality of management responses. They cannot
be viewed as a significant means for dialogue with stakeholders.
The FSA has made good progress in establishing a number of new stakeholder
groups on particular policy issues. We think that small stakeholder
meetings go well and should be encouraged. Input should be encouraged
at an early stage, and feedback given so that people feel involved
and that their views are taken seriously.
Foodaware welcomes FSA’s intention to develop more effective
ways of ensuring they hear the views of ‘hard to hear’
groups. Hard to hear groups may not, however, be interested specifically
in the FSA’s agenda and priorities and have to be encouraged
to participate and identify where there are common interests or shared
concerns.
- What more could we do to ensure that stakeholders are informed
of our decisions and how can we improve the transparency of how
those decisions are made?
Ensuring transparency throughout and informing stakeholders of decisions
is equally important as consultation. Indeed, the FSA work on ‘Getting
to Grips with Grub’ was, members felt, a particular example
of a good response and useful feedback. We are concerned that there
is a lot of time spent ‘re-inventing wheels’ to try different
initiatives and not enough resource spent evaluating what works; what
is effective; and what needs collaboration to achieve effective outcomes.
The approach taken by FSA needs to be underpinned by evidence of the
value of the technique and what it is intended to achieve.
Foodaware suggests the following should be considered:
- Holding more regional, public meetings to explain what the issues
are; what impact they will have; and how people can get involved
would be a start. There is virtually no feedback to individual
groups, or groups of stakeholders such as consumers on how their
views have been taken on board and what has changed as a result
of consultation. The Financial Services Authority by comparison,
on each of its consultations produces an analysis of the responses
to each part of a consultation and indicates exactly where views
of particular stakeholders have been influential, and the reasons
why particular options may not have been pursued.
- Establishing local consumer panels to hear the views of ordinary
people Foodaware could help set up local groups of stakeholders
based on their member groups.
- Speaking directly to relevant groups on specific issues, nationally
and regionally - using local representatives of stakeholder groups.
Again, Foodaware has many local contacts accessible through its
member organisations.
- Paying travel and other reasonable, e.g. child-care, costs
of participants.
- Seeking suitable publicity.
2.2 Protecting consumers’ “other
interests” in relation to food and drink
FSA: We have a statutory duty to otherwise protect the interests
of consumers in relation to food and drink. We have identified some
tests that could be applied to decide which issues fall within this
remit. (Annex A, paragraphs 18-21).
- Are there other relevant criteria?
Foodaware fully supports FSA taking an ‘evidence-based’
approach when deciding how to regulate a particular area. However,
this should include ongoing monitoring to determine how effective
the measures taken are in practice. Where industry has been allowed
to self-regulate through codes of practice these need to be monitored
to determine levels of breaches.
Other factors such as public health and the emerging childhood obesity
crisis, may justify a regulatory approach if self-regulation has failed
to be effective. For example, Foodaware has argued that if industry
cannot be persuaded to reduce salt levels to a satisfactory level
voluntarily, particularly in processed foods and basic foodstuffs
such as bread, then regulation should be an option, given the public
health benefits of reducing salt intake.
Consumers are increasingly interested in how their food is produced
and many want more information about production methods and country
of origin. This is a legitimate consumer interest that needs to be
addressed if consumers are to exercise their right to choose. It is
better to provide more information and risk ‘overload’
than to provide too little. Such information does not necessarily
have to be on the label. Most important, however, is that the information
provided is consistent, allowing consumers to make genuine comparisons
whether it is regulated through legal instruments or voluntary codes.
Foodaware welcomes the reference to the use of the precautionary approach
in situations where the risks are unknown or insufficiently understood.
The lessons of BSE are a clear example of where a tougher precautionary
approach should have been taken earlier.
FSA: We aim to be evidence-based and follow the principles of
better regulation, whether we are acting to protect public health
or to protect consumers’ other interests in relation to food
and drink. We believe that additional factors come into play, especially
when considering whether to act to protect consumers’ other
interests. Such factors could include balancing the interests of different
groups of consumers, or balancing the impacts of market intervention
to deliver the expectations of some consumers with its potential impact
on reducing choice for others. (Annex A, paragraph 22)
- Do you agree that these factors should be considered and
what additional issues should be taken in to account?
Regulatory impact assessments should include summaries of the costs
and benefits to all stakeholders of proposed legislation or other
‘interventions’.
Industry practices, and consumer preferences and expectations, change
over time. For example, health claims on foods are more widespread
then ever before. Also more (unhealthy) foods are being promoted through
television and related media. Such changing practices need to be monitored
and reviewed as self-regulation may no longer be sufficient to protect
the consumer interest. Some consumers also want the right to choose
less healthy options, and without appropriate information this may
not be practicable. Indeed, even with significant amounts of information,
it may not be possible for an individual consumer to make an informed
choice, for example of whether a product is safe at the point of consumption,
or contaminated in some way.
The interests of many specific groups who ‘need to know’
are served by good labelling which helps everyone. Innovatory methods
of providing information are developing all the time and more use
should be made of these. For example, retailers could be required
to provide detailed product information needed by small minorities
of consumers on websites etc.
2.3 Regulation and alternatives to regulation
FSA: Paragraphs 11 and 12 and Box 1 (in Annex A) summarise the
range of interventions we consider when addressing different policy
issues, from doing nothing to direct, prescriptive regulation.
- Are there any other steps, not listed in Box 1, that we
might take to help achieve our primary objectives of protecting
and improving public health, and protecting consumers’ other
interests in relation to food and drink?
Not that we can think of.
FSA: We publish the results of our surveys, including the brands
of the foods that are surveyed. Some surveys look at compliance with
the law, whilst others look at the extent to which best practice guidance
is being followed. Some commentators have suggested that if the FSA
publishes the extent to which individual companies follow best practice
guidance this could be argued to amount to regulatory creep. However,
we believe it is reasonable for consumers to expect the FSA to inform
them about the extent to which best practice is being followed.
- Do you agree that we should publish results of surveys
showing the extent to which best practice is being followed?
Yes, but at the same time, inform people of the standards that the
‘best practice’ represents. It could provide an opportunity
for reviewing and updating those standards, particularly if gaps or
weak areas are identified. See also comments above (para 2.2).
- Is this information useful to consumers?
Yes, definitely. Consumers have a right to know the extent to which
companies are following best practice. External assessments of this,
such as by FSA, or even better by independent consumer organisations,
are more likely to be trusted than industry reports.
2.4 Costs and benefits
FSA: We have a statutory duty to take account of costs and benefits
when considering the exercise of our powers. We will assess possible
approaches not only in terms of improvements to public health and
consumer protection but also in light of the effects on industry and
other stakeholders. (Annex A, paragraphs 23-27)
- Are there other types of costs and benefits that should
be taken into account?
The costs and benefits to vulnerable consumers and minority groups
should be given particular consideration. For example, food labelling
needs to meet the needs of different faith groups and others such
as Asian vegetarians. We welcome the various initiatives that FSA
is undertaking to address the needs of people living with food allergies.
Ensuring that such people can obtain reliable information about food,
particularly that eaten outside the home, is vitally important and
will both save lives and improve the quality of life for many.
Ongoing initiatives to educate consumers about food hygiene and nutrition
are vital. If effective in changing dietary behaviour, they can be
very cost effective in terms of improving public health and reducing
costs to the health services. Targeting young people and vulnerable
groups is particularly important.
The environmental costs of intensive agriculture have to be considered
and efforts made to ensure that our food supply is produced in a sustainable
manner. While this raises policy issues much wider than the FSA’s
remit, FSA must, nevertheless, take it into account when making regulatory
decisions concerning food.
July 2005
1 Reducing Administrative
Burdens: effective inspection and enforcement by Sir Phillip Hanson,
HM Treasury, March 2005
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