A Healthier Scotland: Consultation on Creating a New Food Body

4. Roles and Responsibilities

FSA

22. The FSA currently has a very wide range of roles and responsibilities many of which are detailed in legislation. The roles can be categorised into 6 main areas:

• Food and feed safety and hygiene policy making including the drafting of legislation and the provision of advice
• Food and feed standards and labelling policy making including the drafting of legislation and the provision of advice (in Scotland, Wales and Northern Ireland only)
• Food and feed law enforcement and monitoring, working with LAs and other bodies, and including the production of Codes of Practice, and provision of enforcement guidance and advice
• Science and evidence gathering to inform policy and operations, through commissioning of research, monitoring and surveillance and obtaining expert advice through the independent scientific advisory committees
• International negotiation in the European Union (EU) and other international bodies on behalf of the UK
• Diet and nutrition policy and advice (in Scotland and Northern Ireland only)

23. Within each of the above categories the FSA has a range of responsibilities covering many technical areas including:

• food and feed hygiene/microbiological safety, including products of animal origin such as meat, milk, eggs, fish, shellfish
• chemical food safety related to contaminants
• food contact materials
• radiological food safety
• genetically modified (GM) food and feed, novel foods and nanotechnology in relation to food and feed
• prevention of, and response to, food and feed incidents, resulting from, for example, chemical contamination or environmental pollution
• allergen labelling
• front of pack nutrition labelling
• working with the food industry to encourage reformulation to reduce levels of saturated fat, salt and calories in food products
• monitoring Scottish dietary targets.

24. In addition the FSA represents the UK Government on food and feed safety and some food standards issues in the EU. The FSA works in close collaboration with other government departments across the UK, the European Commission, the Council of the EU, Standing Committees, the European Parliament and the European Food Safety Authority. It also works internationally, representing the UK Government on international bodies for example on the Codex Alimentarius Commission with the World Health Organization and the Food and Agriculture Organization of the United Nations where it seeks the views of the devolved administrations.

25. Since responsibility for nutrition in England and Wales moved to the Department of Health and responsibility for labelling and most food standards in England to Defra, the FSA no longer represents the UK on these matters. The respective UK Government departments lead on EU and international negotiations, in consultation with the FSA as appropriate and with the devolved administrations.

FSA in Scotland

26. FSAS is responsible for and delivers in Scotland all of the technical areas listed in paragraph 22 above, working closely with colleagues across the FSA and in the Westminster Department of Health and Defra. FSAS staff include policy officials, environmental health professionals with extensive experience of enforcement, communications and consumer engagement specialists, and scientists and public health nutritionists who provide advice to policy makers and manage research and evidence-gathering relating to food and feed safety and standards, food-borne disease and nutrition. FSAS also has a unit which manages contracts for the delivery of official controls relating to shellfish, a dedicated team to support the delivery of official controls by local authorities, and its own audit team to audit the delivery of official controls by local authorities. A team of operations staff deliver official controls in meat plants in Scotland, and line management of this team was recently moved to the FSA Director Scotland, in accordance with recommendations from the Scudamore review.

27. FSAS works closely with the rest of the FSA, especially with respect to handling food incidents and on science and evidence-gathering, and sources expert advice on a range of issues from the FSA.

New food body

28. The new food body will take on all the roles and responsibilities currently undertaken by FSAS, continuing its commitment to the established principles of better regulation (proportionate, consistent, accountable, transparent and targeted) and building upon the achievements of the FSA in Scotland. That said, the setting up of a stand-alone body for Scotland offers an opportunity to design a food body that reflects the particular needs of Scotland. The new body should tailor delivery of the current FSA functions to Scottish circumstances, as well as improve efficiency and effectiveness. It could also expand on the current role and responsibilities of the FSAS in order, for example, to achieve a more co-ordinated and efficient delivery of food safety controls, or to establish a more joined up way to address public health problems in Scotland.

29. We are open to suggestions as to how the new food body could build on the functions, roles and responsibilities of the FSAS, either by taking on a responsibility currently fulfilled by another body, or by taking responsibility for a role or function which no body fulfils at present. A range of suggestions has already been put forward, in a stakeholder workshop that we held in November 2012, and in letters from stakeholders. Those suggestions are set out in the paragraphs below. We would welcome your views on these, and any other suggestions you propose.

4.1 Diet and nutrition

30. Scotland has one of the highest levels of obesity in Organisation for Economic Cooperation and Development (OECD) countries, with a consequent increased risk of conditions such as diabetes, heart diseases and cancer.

31. The new food body will ensure that there is the capacity in Scotland to develop and implement policies to improve public health through diet and nutrition. It will allow, where appropriate, tailored approaches to be taken in Scotland to tackle poor diet so that Scots live longer, healthier lives. This is a priority for Scottish Ministers, and an area where the new food body is expected to make a significant impact.

32. Stakeholders have commented that a range of parties are involved in attempts to improve the dietary health of the Scottish population, and that it is not always clear which is in the lead, or whether action is coordinated to the best effect. It has been suggested that the process of establishing a new food body could usefully bring clarity to the delivery landscape by defining which organisations have responsibility for research, policy making and provision of consumer information and how these activities should be coordinated for greatest positive effect. Stakeholders have said that they would like to see stronger leadership by the new food body on nutrition and co-ordination of messaging, and have suggested an interface with the education system to ensure information provided to children and young people is consistent and accurate.

33. The current distribution of responsibilities between the Scottish Government and the FSAS is mapped out in detail in Annex A to this document. In essence, the Scottish Government and the FSA work in partnership with each other and with other relevant agencies, in particular NHS Health Scotland on diet and nutrition. The FSAS is currently responsible for the provision of easily understood, scientifically based information about the nutritional content of individual foods and impartial advice on a balanced diet, and is also responsible for advising on the policy aspects of these issues. The Scottish Government has responsibility for wider public health policy issues related to nutrition, where nutritional status is one of a number of health risk factors. The FSA also has joint responsibility with NHS Health Scotland for the implementation of national health education on diet and nutritional issues, and where appropriate the two bodies co-ordinate their research and surveillance activities and share relevant information.

34. The new food body will take a leading role in science and evidence based, consumer focused public nutrition policy. Development, maintenance and communication of a strong evidence base will be a central responsibility, and will form the foundation for the new food body's functions including:

• policy advice from the new food body to Ministers
• legislation (if necessary)
• input to, and advice to Ministers on, relevant discussions and negotiation lines at the EU
• relevant work undertaken with the food industry and other stakeholders
• information to health professionals
• advice to the public.

35. In addition to the functions listed above, the new food body could also take the strategic lead for Scottish Government policies such as the Healthy Living Award for caterers, the Healthy Living Programme for neighbourhood shops and for technical support currently offered to small and medium food businesses to assist them reformulate their products to be lower in salt fats and sugars.

Question 2: Should the new food body and the Scottish Government continue the arrangements for independent and partnership work on diet and nutrition set out in Annex A? If not, what changes would you suggest, and why?

Question 3: Are there any additional roles, responsibilities or functions in respect of diet and nutrition that you think the new food body could take on to help deliver an improvement to the health of the people in Scotland? Please give details and reasons.

4.2 Science and evidence

Access to independent scientific advice

36. The work of the new food body will be shaped by independent, expert science and evidence, which takes full account of the Scottish landscape, whilst ensuring that decisions are informed by a balance of views. This may be achieved in part by securing access to the scientific advisory committees^[5] that currently support the FSA, Defra, the Department for Health and the devolved administrations in their food and feed-related work. Additional sources of science and evidence may be needed, particularly if the role or remit of the existing scientific advisory committees changes over time. It may also be necessary to identify where it needs to develop stronger links with other networks of scientific expertise, both in the UK and internationally.

Question 4: What steps do you think could be taken to ensure the new food body is able to access the best available independent expert advice it needs to underpin its work on food safety and public health nutrition in Scotland? Please give reasons.

Scope of the new food body's science and evidence activities

37. Scottish Ministers are clear that the new food body will be an evidence based organisation. The new food body will maintain the FSA's core principles of openness and transparency and will continue to ensure its work is underpinned by robust science and evidence. Detailed consideration will be given to the scope and governance of research and surveillance programmes commissioned by the new food body to ensure that its policy making is based on sound evidence.

Question 5: Do you consider that the new food body should focus its research and surveillance activities on issues that are particularly pertinent to Scottish citizens or should it also contribute to science and evidence programmes on wider issues which have relevance to the UK as a whole? Please give reasons.

38. There is an opportunity for the new food body to lead the co-ordination of all government funded research on food and feed safety and public health nutrition in Scotland. This would require the new food body to develop more strategic links with Scottish Universities and Institutes and to strengthen collaborations with other government funders to influence the direction of food and feed-related research in the UK and ensure it takes full account of Scottish interests.

Question 6: Do you consider that the new food body should be responsible for the coordination of all Scottish Government funded research on food safety and public health nutrition? What steps could be taken to raise the profile of the new food body as a research funder across the UK and beyond? Please give reasons.

Question 7: Do you have any further suggestions for how the new food body could establish a strong independent evidence base for food safety, food standards and nutrition policy? Please give reasons.

4.3 Regulation policy, enforcement and monitoring – responsibilities and powers

39. The FSA's role has recently come under scrutiny following the discovery of horse meat in widespread range of products labelled as containing beef. The UK Government's House of Commons Environment, Food and Rural Affairs Committee, in its report published on 14 February,^[6] noted the machinery of government changes in England in 2010, and concluded that the FSA's diminished role had led to a lack of clarity about where responsibility lies. The Committee also suggested additional statutory powers with respect to testing.

40. In response to the machinery of government changes in England, Scottish Ministers decided that in Scotland the FSA would retain responsibility for food standards, labelling and nutrition. They also commissioned an independent review of the role of the FSA in Scotland, and accepted the review panel's recommendations that food safety should not be divorced from nutrition and labelling and standards, and that Scotland could be best served by a stand-alone food body.

41. The new food body will retain responsibility for food labelling and food standards as well as food safety, and will have at least the same statutory powers as the FSA has at present.

Question 8: Do you consider that the new food body would require any further statutory powers, in addition to those that the FSA already has, to equip it to deal effectively with incidents such as the recent horse meat substitutions, and to prevent such incidents happening? Please give reasons.

42. It is essential to have effective deterrents to fraudulent and negligent activity in place in order to prevent incidents such as the substitution of horse meat for beef. One method of deterrent is ensuring proportionate, effective and dissuasive sanctions are in place. Rather than reduce the regulation of labelling, in Scotland, we plan to retain criminal offences for non-compliance with food labelling law, and to provide for review of penalty levels to ensure they are proportionate and dissuasive. We also intend to retain offences for non-display of names and ingredients on food sold loose.

43. It will be important for the new food body to have a robust regulatory enforcement strategy which covers targeted intervention strategies to deal with contraventions of both food standards and safety law. Work to develop such a strategy will be undertaken as part of the preparations for creating the new food body.

Question 9: Do you have any further comments about how the new food body might ensure that it can deal effectively with contraventions of food standards and safety law? Please give reasons.

4.4 Related areas of regulation policy, enforcement and monitoring

44. The new food body will take on all the areas of responsibility currently covered by the FSA in Scotland and outlined in paragraph 22 above. It has been suggested that there are related areas where the FSA does not currently have a role, but where consideration could be given to whether the new food body could improve effectiveness or efficiency by taking on regulatory policy or enforcement responsibilities, or perhaps changing or improving on the FSA's current working arrangements with the bodies currently responsible. Areas so far suggested by stakeholders for consideration include animal health and animal by-products, transmissible spongiform encephalopathies (TSE)^[7], all areas of food labelling, provenance, dairy and egg production controls, drinking water quality and responsibility for public analyst functions.

45. We would like to hear your views on these suggestions, and any other suggestions you propose. Please note that before taking any suggestions for potential additional responsibilities further, we would need to discuss them with all who would be affected, and explore considerations of employment, practicability, cost and legislation.

Question 10: Should the new food body take on any regulatory, enforcement or monitoring roles and responsibilities not currently fulfilled by the FSA in Scotland? If yes, please give details and reasons.

4.5 Consideration of delivery of official food and feed controls

46. The FSAS has direct responsibility for the delivery of official controls in approved fresh meat establishments. Official controls at other food and feed establishments, and at ports, are delivered by local authorities. The following suggestions were made with particular reference to the new food body's working relationship with local authorities.

47. It has been suggested that official controls currently delivered by local authorities could be delivered directly by the new food body, or that control of delivery could be centralised. Some stakeholders have expressed concern that this could jeopardise the current holistic nature of environmental health services, which also cover aspects of control, monitoring and advice in relation to infectious disease, pollution, environmental noise and occupational health and safety. They have also raised concerns regarding the potential detrimental effect that significant transfer of staff from local authorities to the new food body could have on the viability of environmental health services.

48. An alternative suggestion was for the new food body to take on direct responsibility only for certain official controls and functions currently delivered by local authorities, as listed in bullet points below. These suggestions were tempered with suggestions that flexibility could be built into the legislation to allow the transfer of enforcement responsibility between local authorities and the new food body where both parties agree that official controls at a particular establishment or class of establishments, would be better delivered by one or other body according to local needs and circumstances. Alternative arrangements could also be considered such as contracts or service level agreements with local authorities to deliver functions on behalf of the new body.

• Approval of those food and feed establishments that require approval under EU food hygiene legislation (Regulation (EC) No 853/2004) and all processes for the suspension or withdrawal of those approvals. Official controls other than approval or the suspension or withdrawal of approval would remain with local authorities. Responsibility for enforcement action relating to operation of an unapproved establishment requiring approval would rest within the new food body.
• Where the new food body is the designated food authority for an approved establishment (such as slaughterhouses and meat cutting establishments), it should be responsible for official controls of all food commodities at the establishment and all official controls including those for food standards.
• Coordination of export certification and liaison with third countries.
• Import controls at ports of entry, including local authority controlled Border Inspection Posts and Designated Points of Entry.
• Delivery of official controls relating to animal feed hygiene and standards. In Scotland, feed law enforcement services are delivered by local authorities, but a small proportion at primary production level are undertaken by Scottish Government where they align with other on-farm inspections.
• Delivery of all official controls and related monitoring activity during primary production, including farming (including milk production holdings), game larders, fishing, and aquaculture. Consideration could also be given to first landings of fish at markets. Some primary production hygiene inspections are presently undertaken by the Scottish Government in tandem with other on-farm inspections.
• Delivery of official controls relating to the supply and manufacture of materials and articles in contact with food, food additives and processing aids.
• Recognition of natural mineral water sources.

49. The FSA currently develops technical and professional training of authorised officers whether they are employees of the FSA or of the local authorities. However, in addition, the new food body could, if resourced appropriately, also provide specialist advice to local authorities on food science, food technology and veterinary matters.

50. The Scottish Food Enforcement Liaison Committee (SFELC) is a group that co-ordinates the food law enforcement and sampling and surveillance activities of Scottish local authorities. Its membership includes representatives of central and local government and industry. It has been suggested that this group could be formalised through legislation as part of the setting up of the new food body.

51. It has also been suggested that the new food body could support and protect food law enforcement services by strengthening audit procedures (see section 4.6 below).

Question 11: Please tell us your views about these suggestions for changes to the delivery of official food and feed controls. Do you think that the new food body should work in a different way with local authorities? Please give reasons.

52. Please note that before taking any suggestions for potential additional responsibilities further, we would need to discuss them with all who would be affected, and explore considerations of employment, practicability, cost and legislation.

4.6 Audit

53. EU legislation places Member States under an obligation to enforce food and feed law and to ensure compliance (Regulation 178/2002)^[8]. They are to designate competent authorities for the purposes of official controls, and these competent authorities are required to have internal audits, or to have external audits carried out (Regulation 882/2004)^[9]. The FSA, as representative of the UK as Member State, provides assurance to the European Commission of delivery of official controls in the UK.

54. An audit team at FSAS audits the delivery of official controls by local authorities in Scotland. This provides assurance of delivery of official controls in Scotland. An additional benefit is said to be that the reporting process for audits to Chief Executives of local authorities is considered to be a significant factor in the protection of food and feed law enforcement services. It has been suggested that the new food body could support and protect food law enforcement services by establishing a clear standard for local authorities that has Ministerial backing and by strengthening audit procedures.

55. Delivery of meat and shellfish official controls by FSA and FSA operations staff in Scotland is currently audited by the FSA's internal audit team based in England. The new food body could expand upon the current audit capability of FSAS in order to carry out parallel internal audit of any aspect of the new food body's operation, including the Scottish meat and shellfish operations functions and any additional operational or enforcement functions that the new body might take on. This would provide assurance of delivery of official controls, meet the requirements of Regulation 882, and underpin the assurance of delivery of official controls provided by FSA to the European Commission.

Question 12: Do you have any views on how the new food body should assure delivery of official controls and meet the relevant EU obligations? Please give reasons.

4.7 International negotiation in the EU and other international bodies on behalf of the UK

56. The FSA would continue to represent the UK with respect to food and feed safety and hygiene at EU and other international bodies, as will Westminster's Department of Health and Defra with respect to diet and nutrition and food standards and labelling respectively. As with any other devolved matter, negotiations would be subject to consultation with devolved administrations – in the case of food and feed matters, this consultation would be with the new food body.