Legal

Legal perspectives: Food Law Code of Practice In this feature l competent authorities l training l inspections and enforcement A lot to learn Do you meet the new food law competency requirements? daniel Brayley spells out the essentials I Competent authorities need to satisfy themselves, through appraisal and assessment procedures, that an officer can provide demonstrable evidence that they meet the competency t has been almost six months since the new competency requirements for authorised officers set out in Chapter 4 of the Food Law Code of Practice (England) April 2015 took effect, but what do the changes mean for trading standards? The Food Standards Agency (FSA), as the central competent authority under Regulation (EC) No 882/2004 on official controls performed to ensure the verification of compliance with feed and food law, animal health and animal welfare rules (the Regulation), is obliged to ensure that other competent authorities namely local authorities meet the requirements set out in the Regulations. Article 6(a) of the Regulation requires competent authorities to ensure that all staff performing official controls should receive, for their area of competence, appropriate training enabling them to undertake their duties competently and to carry out official controls in a consistent manner. This training should cover, as appropriate, the areas referred to in Annex II, Chapter I [Annex II, Chapter I sets out the general (food hygiene) requirements for food premises]; and keep up-to-date in their area of competence and receive regular additional training as necessary. The 2014 Code (Chapter 1.2) set out the qualifications required by local authority representatives to carry out official controls, and defined competence through prescribed qualifications. However, some qualifications did not enable officers to undertake a full range of enforcement actions, leading to concern within the FSA that some officers did not have the necessary powers to undertake appropriate and timely enforcement action. For example, historically, an officer with a Higher Certificate in Food Premises Inspection (HCFPI) qualification would be authorised by a local authority to carry out inspections at high risk establishments, but could not serve a Hygiene Emergency Prohibition Notice (HEPN) or Remedial Action Notice (RAN), as these can only be served by an Environmental Health Officer (EHO) with a prescribed qualification. To remedy such notable deficiencies, and to ensure compliance with Article 6(a) of the Regulation, the FSA amended the Food Law Code of Practice in 2015, following a period of consultation. The 2015 Code introduced a competency-based authorisation system for officers undertaking official controls and other regulatory activities, effective from 6 April 2016, which aims to ensure greater emphasis on the necessary behavioural skills and experience needed to undertake official control activities, as opposed to qualifications only. Chapter 4 of the Code Competent authorities need to satisfy themselves, through appraisal and assessment procedures, that an officer can provide demonstrable evidence that they meet the competency knowledge and skills requirements set out in Chapter 4 of the Code of Practice. Competent authorities must set up and put in place a documented procedure for the authorisation of officers carrying out official controls, which covers: l Delegated powers who is authorised to do what, and what qualifications are required l Who is authorised to approve legal proceedings l Arrangements in place for training l Assessment processes to ensure that the authority has assessed the competence of authorised officers Authorisation under the new system has three key elements. They are: 1. A baseline qualification providing officers with the underpinning scientific, technical and legal knowledge and understanding of food inspection, safety and hygiene, food hazards and food standards (asappropriate). 2. A competency framework for the assessment and authorisation of officers undertaking official control activities. 3. A revised process for Continuing Professional Development (CPD), increasing the amount of CPD required and recognising a more varied range of activities that can be considered. Baseline knowledge These are set out at section 4.4 of the Code see also Practice Guidance section 4.4. Those who do not hold the baseline qualification, but consider that their qualifications, training and experience are suitable to undertake specific enforcement activities outlined in the Code, should contact the relevant professional and awarding bodies for an equivalency assessment. The FSA should be consulted and informed of any determination in relation to the assessment of qualifications. Where officers have come from other countries in the European Economic Area, the equivalence of their qualifications must be determined by an organisation recognised by the Department for Business Innovation and Skills, which is now known as the Department for Business, Energy & Industrial Strategy (BEIS). How to be proficient The competencies are set out below. Examples of how these might be demonstrated in practice are set out in the Practice Guidance. The competencies for the lead food officer (only) are set out in section 4.7. These include: 1. Local and specialist knowledge: the area in which they are acting; an understanding of the hazards that can occur in premises within this area; risk management techniques; and an understanding of when specialist auditing and quality assurance skills are needed to deliver official controls. 2. Legislation and centrally issued guidance: the officer must understand, and advise on, the application of relevant legislation, and understand, interpret and apply the framework agreement on food law enforcement with local authorities and the Code of Practice and guidance. The officer must be able to understand and advise on the application of enforcement sanctions and the appropriate application of food law. 3. Planning of an official control programme see section 4.7.5. The lead food officer must also meet the competency requirements for authorised officers (section 4.8). These include: l The inspection of food establishments l Use of enforcement sanctions l Sampling l Import and export controls l Reactive investigations Competent authorities must set up and put in place a documented procedure for the authorisation of officers carrying out official controls Inspection of food establishments Authorised officers must: (i) Have an understanding and knowledge of Hazard Analysis and Critical Control Point (HACCP) based procedures, and an ability to apply that knowledge, taking into account the principles contained in Article 5 of Regulation (EC) No. 852/2004. (ii) Be able to determine and identify hazards and risks that occur in establishments and products, and understand the principles ofrisk assessment related to food types, processing methods andproducts (iii) Understand and be able to advise on the application of relevant EU and national food hygiene or standards legislation, and understand how to assess compliance with legislative requirements, referencing the Food Law Code of Practice and Practice Guidance (iv) Be able to determine the appropriate course of action to remedy non-compliance, including knowing when it is appropriate to escalate enforcement action (vi) Be able to make use of food hygiene/standards intervention rating assessment of risk using section 5.6 of the Food Law Code of Practice (vii) Understand the common food types and hazards associated with their use use of enforcement sanctions Authorised officers must be able to demonstrate and understand how to service Notices; gather evidence; prepare cases for prosecution; and apply knowledge to comply with the requirements of the Police and Criminal Evidence Act 1984 (PACE) and Regulation of Investigatory Powers Act2000 (RIPA) and, where appropriate: (i) Differentiate between legal requirements and recommendations of good practice (ii) Offer advice and enforce based on levels of compliance, having regard to consistency and proportionality based on the hierarchyof risk (iii) Understand levels of authorisation, enforcement policies and procedures for appeal (iv) Understand the legal framework in relation to the use of enforcement powers, including the role of primary authorities and home authorities Sampling Authorised officers should: (i) Understand formal and informal sampling methodologies and the role of the public analyst and food examiner (ii) Be aware of the national and local sampling priorities, and be able to use the national UK Food Surveillance System and searchable databases, where appropriate (ii) Interpret sampling results and make a judgement on appropriate action based on risk Import/export controls Authorised officers must be able to: (i) Understand the legal framework with regard to imported and exported food and how to assess compliance (ii) Determine the most appropriate course of action and the range of enforcement sanctions available (iii) Identify food types and comment on fitness at border inspection posts (iv) Demonstrate an understanding of controls at points of entry, including carrying out systematic documentary checks, random identity checks and sampling for analysis or microbiological examination, as appropriate Reactive investigations Authorised officers must: (i) Understand how to conduct an investigation and gather evidence in accordance with PACE and RIPA where appropriate, and be able to analyse information and determine an appropriate courseof action (ii) Be able to identify when it is appropriate to engage with other agencies and stakeholders, in particular when investigating food incidents and/or infectious disease outbreaks Regulatory support officer (i) Information gathering see section 4.9 Continuing professional Development Lead food officers and authorised officers must undertake a minimum of 20 Continuing Professional Development (CPD) hours per year, including a minimum of 10 CPD hours on core food matters directly related to the delivery of official controls (see Practice Guidance section 4.8) and 10 hours on other professional matters. The FSA hope that these amendments will allow competent authorities and their officers to efficiently target training resources at clearly defined competence requirements that reflect the role being undertaken, thereby driving an improvement in the quality and consistency of official food controls, together with increased flexibility and efficiency in the deployment of official resource by competent authorities. Time will ultimately tell if this plays out in practice. Credits Daniel Brayley is a barrister at Gough Square Chambers. Images: PHOTOCREO Michal Bednarek / Shutterstock; barbajones / Shutterstock To share this page, in the toolbar click on You might also like All rights reserved September 2016