In 2019, one of the main plenary sessions at CTSI Symposium posed the question: ‘with diminished trading standards resources, are we prepared for another crisis?’ The session, led by former CTSI Chair David Riley, discussed the events of BSE in the 1990s, foot and mouth in 2001, the horsemeat scandal of the 2010s and then in recent years the Whirlpool crisis and the Grenfell Tower tragedy of 2017.
A common theme that arose from this discussion was that a number of past crises had arisen due to a failure to comply with regulatory controls, primarily in those sectors involving food, feed, and animal health, known as the ‘agri-food’ trade, resulting in an estimated cost of billions of pounds to the UK economy.
In recognition of the regulatory responsibilities for protecting the agri-food trade, over the years, the EU has legislated in a number of areas to provide for a set of harmonised rules to ensure that food and feed are safe and wholesome, and that activities which might have an impact on the safety of the agri-food chain or on the protection of consumers’ interests, or animal health and welfare interests, are performed in accordance with specific requirements.
With the departure of the United Kingdom from the European Union, the EU (Withdrawal) Act 2018 transposed all directly applicable EU regulations into UK law, thereby ensuring no ‘cliff edge’ and a functioning statute book on the day the UK left the EU. As such, retained Regulation EU 2017/625 on official controls remains directly applicable to the UK.
This regulation, known as the Official Control Regulations (OCR), places a responsibility on competent authorities to monitor and verify compliance by industry with the laws relating to the agri-food chain and that the standards expected within law are enforced.
The OCR is part of a broader package of official controls brought in by the EU known as the ‘smarter rules for safer food’ (SRSF) package. The regulation lays down rules for the performance of official controls and other official activities by the competent authorities for the verification of compliance with laws, whether established at Union level or by the Member States, to apply Union legislation in the areas of food, feed, animal health and animal welfare.
‘Competent Authority’ is defined in the OCR as either the central authorities of a Member State responsible for the organisation of official controls and other official activities, ‘or any other authority to which that responsibility has been conferred’.
Primary legislation within Great Britain includes the Animal Health Act 1981, The Animal Welfare Act 2006 and the Animal Health and Welfare (Scotland) Act 2006. These Acts of Parliament, along with other secondary legislation or directly applicable retained EU regulations to which the official controls relate, are chiefly enforced by local authorities. Therefore, by virtue of the statutory obligation, local authorities
are considered to be a competent authority for the purpose of retained Regulation EU 2017/625.
Whilst it can be argued that the Animal Welfare Act 2006 places no statutory requirements on a local authority for enforcement, the scope of the OCR includes animal welfare and therefore this does place a legal responsibility for local authorities to enforce the laws in this area.
The OCR places a number of obligations on the competent authorities. These include having procedures and/or arrangements in place to ensure the effectiveness and appropriateness of official controls and other official activities, and having procedures and/or arrangements in place to ensure the impartiality, quality and consistency of official controls and other official activities at all levels.
For food and feed law, the requirements of the OCR controls are laid down in statutory codes of practice and practice guidance. These codes are overseen by either the Food Standards Agency (FSA) or Food Standards Scotland (FSS) and detail the expected standards of delivery for food and feed law enforcement to be undertaken by local authorities.
The food and feed law codes of practice prescribe the baseline qualifications that an officer must have to undertake the official controls and the measures that need to be taken for competency to be maintained. There is no equivalent provision for animal health and welfare despite the OCR making it a requirement that the competent authority must ‘have, or have access to, a sufficient number of suitably qualified and experienced staff so that official controls and other official activities can be performed efficiently and effectively’.
With consideration to the requirements of the OCR and with no baseline qualification prescribed for animal health and welfare, in the spring of 2021, CTSI introduced the Professional Qualification for Animal Health and Welfare. The qualification has been developed and is being delivered with due consideration to the devolved administrations of England, Scotland, and Wales, being suitable for all regulators enforcing animal health and welfare rules across GB.
The OCR mandates that staff performing official controls and other official activities shall receive, for their area of competence, appropriate training enabling them to undertake their duties competently and to perform official controls and other official activities in a consistent manner, and keep up to date in their area of competence and receive regular additional training as necessary.
There is a requirement that staff performing the official controls receive training in the subject matters set out in Chapter I of Annex II of the OCR. This training requirement is extensive and includes not only assessment of non-compliance of food, feed, and animal health rules, but also the capability to identify the hazards and the possible risks to human health, animal health and welfare and the environment at all different stages of production, processing, and distribution.
The OCR places an obligation on competent authorities to perform official controls on all operators regularly, on a risk basis and with appropriate frequency, taking account of the identified risks associated with:
▪ animals and goods
▪ the activities under the control of operators
▪ the location of the activities or operations of operators
▪ the use of products, processes, materials, or substances that may influence food safety, integrity and wholesomeness, or feed safety, animal health or animal welfare
When conducting official controls, consideration must be given to an operator’s past record of compliance and any information that might indicate non-compliance with the rules.
To ensure compliance with the OCR, there is a requirement that the competent authorities carry out internal audits or have audits carried out on them and take appropriate measures in the light of the results of those audits. The audits must be subject to independent scrutiny and carried out in a transparent manner. Local authorities are familiar with audits being carried out for compliance with the food and feed law codes of practice by the FSA/FSS. However, to date there has not been any similar requirement for animal health and welfare and there is no baseline standard on which to base such an audit. This is an area in which we are likely to see change in the future.
Lessons learnt from past crises support the necessity to regulate the regulator to ensure that there is effective monitoring and verification of compliance by industry. However, this is against a backdrop of a reduced workforce of regulators.
The latest Workforce Survey conducted by CTSI continues to show significant reduction in resource and skill within trading standards services across the UK, with many authorities having limited qualified staff and many heads of service fearful of the future and their ability to deliver the full range of trading standards responsibilities; this would include obligations as a result of the official controls.
In adopting retained Regulation (EU) 2017/625, Article 78 states that ‘Member States shall ensure that adequate financial resources are available to provide the staff and other resources necessary for the competent authorities to perform official controls and other official activities.’
The landscape for animal health and welfare has changed significantly since the introduction of the Animal Health Act 1981, with multiple pieces of secondary legislation and retained EU law enacted as a result of the Act. Whilst Section 52 places a statutory duty on local authorities to enforce the rules and to appoint as many inspectors and other officers as they deem necessary to enforce the Act, the Animal Welfare Act 2006, having no similar statutory duty, has meant that no funding has ever been extended to local authorities for its enforcement. With funding from central government departments not always reflecting that changes within the law place new responsibilities on local government, combined with reduced budgets and a loss of qualified officers, it is extremely challenging to implement the requirements of the OCR.
With the risks to public health and animal health from the trade in animals and animal-related products, future trade deals with the EU will be reliant on the capabilities of the UK to demonstrate the rules relating to food, feed, animal health and animal welfare are being complied with and effectively policed.
The Chief Veterinary Officers for the devolved nations are clear in their foreword to the UK National Contingency Plan for Exotic Notifiable Disease that the risk of an incursion of exotic notifiable animal disease in the UK remains ever present. So, again the question from the 2019 Symposium arises: ‘With diminished trading standards resources, are we prepared for another crisis’?
We have witnessed from past events the impact of non-compliance in the agri-food sector. The risk of disease incursion or a major food fraud has not gone away. Whilst the OCR ‘regulates the regulator’ and places an obligation on the competent authorities to ensure verification and compliance of the rules by industry, if we are going to be prepared for any future agri-food crises this requires commitment for appropriate levels of resource from both central and local government.
Without sufficient skill and finance available to effectively ensure the obligations placed on the UK as a result of retained Regulations EU 2017/625 are met, we can never fully be prepared for the next crisis.
Visit tradingstandards.uk/cppdtest to complete the question and answer section of this module.