At the time of writing the UK hospitality sector, including businesses that sell food and drink, is recovering from what has been the most dramatic and difficult period of trading for decades. If there is to be a successful restart of the hospitality industry, then what better time for trading standards to reconsider its approach to regulating this highly significant marketplace?
Trading standards can have a key role in ensuring that, into the future, a fair and equitable marketplace exists. Perhaps the best way of doing this is by taking a look back at what once worked well at local level, such as regular visible presence in the local business community by way of inspections, including making checks on the authenticity of alcoholic drinks.
For many years now there have been intelligence-led operating models in place to help prioritise trading standards activities. They work well for well-reported issues that have a high visibility to the public like counterfeiting, doorstep crime, scams and rogue trading.
But what about for subject areas where the source and collection of intelligence is low and underreported but the likelihood of non-compliance and even fraud could be high? Weights and measures checks at licensed premises to test for the correct measure and product being poured were one of the first visits trainee TSOs would perform during their training period and an activity that was widely conducted across the country for many years until the last decade or so. The public are likely to still believe that these regular checks are being made. But in this new landscape and opportunity for change, who will be doing these checks and how often will they be done?
Boots on the ground
A successful prosecution recently brought by Cheshire West and Chester Council highlighted how there could be significant issues in relation to watered spirits being sold to the public in licensed premises. I visited the premises, along with other council officers, in the early evening of November 2019 to conduct an unannounced joint food safety and food standards inspection visit.
The premise was a former pub that had been converted into a Chinese restaurant and takeaway while still retaining the public bar areas for customers to use. We tested a number of spirit drinks within the bar area and discovered that a significant number appeared to be much lower than their legal limit of 0.3% ABV. These suspect bottles were taken as formal samples/evidence and sent for analysis, and almost all were confirmed by the lab as failures.
In total, nine separate charges were successfully prosecuted for watered spirits in court in January 2021, against the manager and the business, who combined were ordered to pay almost £2,500, including fines, costs and victim surcharges. The defendants had cooperated throughout and pled guilty at an early stage.
The judge stated in his summing up that although the case may not be linked directly to food safety, the public had a right to expect to be given what they had asked for when ordering alcoholic drinks. One of the cornerstones of trading standards is that the public get what they expect when purchasing goods.
This was a chance inspection find, as the testing of alcoholic drinks had likely not taken place in Cheshire West for quite some time as a routine activity. It was actually the first time I had taken the kit out to test drinks since joining the authority in July 2019, mainly to train the other officer in spirit drink testing, and this was only the second premises visited on the day where we used it. Statistically that perhaps shows something of relevance.
This was the most extreme case of watering down I had ever encountered in my 15 or so years in the trading standards profession and the defence provided was equally something I had never heard of before: the manager told me that when he refilled the old wall-mounted spirit bottles, using spirits of the same brand from new smaller bottles, he would then rinse them with tap water to extract any further alcohol to then add to the old-wall mounted bottles. This for a start concerned me as not the best practice for traceability purposes. That he was rinsing the bottles, not to make money but to save alcohol was the defence carried throughout the investigation.
Bringing the prosecution
During the investigation process, various applicable legislation was considered by Cheshire West’s legal team and the case was eventually brought and prosecuted under the Food Safety Act 1990 (S15) (Quality). The complexity first lay in the fact that different elements of law sat in different places.
The Spirit Drink Regulations 2008 define what a spirit should be and it seems are more focused on the manufactured product as opposed to the adulterated product at local retail level. The old Food Labelling Regulations 1996 state what the legal tolerances are for spirits, which were transposed into EC 1169/2011 and now implemented by The Food Information Regulations 2014. The Food Safety Act 1990 has the offences for Nature or Quality or Substance which itself can be confusing. The Consumer Protection from Unfair Trading 2008 could be used for food offences. The Food Safety and Hygiene Regulation 2013 would be needed for the use of the EC178/2002 possible offences. The Fraud Act 2006 was a possibility; the Trade Marks Act 1994 could also apply and so on.
The PACE interviews took place during the height of the COVID-19 pandemic and so were conducted by a series of written interview letters which in themselves presented a number of issues for us, especially in relation to providing effective challenge questions.
The equipment used to test the spirit drinks by the officers was an Anton Parr DMA 35n Density Meter, which is very easy to carry around and can be quick to use. Alcohol can be drawn up into the device through the tube and a digital reading will be given on the screen. It is perhaps quicker and simpler to use than a traditional hydrometer kit but much more expensive to buy. It can give an indicative result if used correctly to then be further confirmed by an official testing via an accredited laboratory, if criminal proceedings are to be considered. It is worth taking the time to learn how to use it and assess its strengths and limitations when testing alcoholic drinks.
This was a good example of joint working across trading standards and Environmental Health, with both officers keen to learn about each other’s roles. Both professions have a lot to offer each other in terms of joined-up working and the sharing of skills and expertise. Going forward it may be likely that food safety officers’ roles are more and more likely to require a higher emphasis on food standards interventions, including the testing of spirit drinks – especially in light of the recently published new food law code of practice which appears to be changing the way food regulation is to be delivered. Only time will tell.