Conducting a product recall—food and drink
Produced in partnership with Tom Fox of Arnold & Porter Kaye Scholer
Conducting a product recall—food and drink

The following Risk & Compliance practice note produced in partnership with Tom Fox of Arnold & Porter Kaye Scholer provides comprehensive and up to date legal information covering:

  • Conducting a product recall—food and drink
  • Applicable legislation and definitions
  • Guidance
  • Food safety requirements
  • Traceability
  • Notification
  • Trigger for notification
  • Who to notify?
  • How to notify
  • Food alerts and the Rapid Alert System for Food and Feed (RASFF)
  • More...

IP COMPLETION DAY: 11pm (GMT) on 31 December 2020 marks the end of the Brexit transition/implementation period entered into following the UK’s withdrawal from the EU. At this point in time (referred to in UK law as ‘IP completion day’), key transitional arrangements come to an end and significant changes begin to take effect across the UK’s legal regime. This document contains guidance on subjects impacted by these changes. Before continuing your research, see Practice Note: What does IP completion day mean for Risk & Compliance?

Applicable legislation and definitions

The main piece of legislation relevant to food product recalls is the General Food Law Regulation (EC) No 178/2002. This EU legislation is directly applicable and provides the general principles of food safety. The Food Safety Act 1990 (FSA 1990) (as amended) provides the framework for all food legislation in the UK and similar legislation applies in Northern Ireland.

‘Food’ is defined as:

'any substance or product, whether processed, partially processed or unprocessed, intended to be, or reasonably expected to be, ingested by humans'

This definition includes drink.

A food business operator is the person or company responsible for ensuring the requirements of food law are met within the food business under their control. Guidance indicates that this extends to anyone supplying food, except in the context of domestic private consumption.

Guidance

Extensive guidance also appears on the Food Standards Agency's

(FSA) website. The main guidance covering food recall is: Guidance on Food Traceability, Withdrawals and Recalls within the UK Food Industry.

Food safety requirements

Food businesses must only place safe food on the market. Food is unsafe if it is either injurious to health, or unfit for human consumption.

When determining whether food is unsafe, its normal conditions of use and information about specific adverse health effects must be considered.

When determining whether food is injurious to health, all short and long-term health effects on consumers must be considered, including:

  1. effects on subsequent generations

  2. probable cumulative toxic effects, and

  3. particular health sensitivities (eg allergies) of consumers for whom the product is intended.

If any food in a batch, lot or consignment is unsafe, the rest of the batch, lot or consignment is presumed to be unsafe unless detailed assessment shows this not to be the case.

‘Unfit for human consumption’ typically refers to food that has decayed or become contaminated, such that it is no longer acceptable for consumption.

Traceability

Food must be traceable at all stages of production, processing and distribution. As a food business operator, you must be able to identify any person who supplied food to you, and any person to whom you have in turn supplied the food

You must therefore have systems in place to capture this information and provide it to the competent authorities on demand. Depending on any specific requirements that may apply to a particular type of food, such systems will involve adequate labelling and record-keeping to ensure traceability. There is no requirement for internal traceability between incoming and outgoing food products, but this is likely to assist in targeting any recall/withdrawal that may be required.

You will need to have available details of:

  1. the name and address of your supplier and nature of products supplied

  2. the name and address of your customer (there is no obligation to identify final consumers of the product) and nature of products delivered

  3. the date of the transaction/delivery

Other information that should be kept includes:

  1. the volume or quantity of products supplied

  2. the batch number, and

  3. a detailed description of the product (pre-packed or bulk product, variety of fruit/vegetable, raw or processed product)

Notification

Trigger for notification

If you think any food you have imported, produced, processed, manufactured or distributed does not comply with the food safety requirements, you must take appropriate action to withdraw the product and inform the competent authorities.

In addition, as soon as you know you have placed on the market food that may be injurious to human health, you must inform the competent authorities immediately. This obligation ensures the authorities receive early warnings about possible or emerging health risks, eg where customer complaint monitoring suggests that the product may be injurious to health but this has not been confirmed by testing or other information. This notification does not automatically trigger an obligation to withdraw the affected food product, but such an obligation may arise if further information confirms that the food is, in fact, unsafe.

Who to notify?

You should notify both:

  1. the FSA, and

  2. your local authority (Trading Standards or Environmental Health, depending on who deals with food issues in your area)

As part of your general regulatory compliance planning, you should already have established a relationship with your local authority team. Within England and Wales, some companies formalise their relationship with their local regulatory authority under the Primary Authority scheme.

How to notify

Any ‘food incident’, meaning any actual or suspected threat to the safety or quality of food that requires intervention to protect consumers should be reported to the FSA's Incidents Branch (the online Incident Report Form and related guidance are linked to on this FSA page). Local authority food safety teams can be found using a postcode search on the FSA website.

Food alerts and the Rapid Alert System for Food and Feed (RASFF)

Food Alerts may be issued by the FSA as a result of enforcement action, to inform local authorities and consumers where action is required, or for information when, eg there has been a food issue that is being addressed by a withdrawal or recall on the part of the food business operator. Food Alerts appear on the FSA website.

The Food Alert system forms part of the Rapid Alert System for Food and Feed (RASFF) established under the General Food Law Regulation. The RASFF requires Member States to notify the Commission immediately of any serious risk to human health. The Commission will in turn alert the other Member States and EU border posts, and, where applicable, the authorities in a third country of origin. Notification takes place via the RASFF Portal which includes a searchable database of notifications giving details of actions taken.

Withdrawal

Withdrawal means removing the product from the supply chain in circumstances where the product has not reached consumers, eg it is in a distribution warehouse or on the retailer’s shelves. Where a food does not meet the food safety requirements a product withdrawal must be initiated. A withdrawal must always be notified to the competent authorities.

Where the food is still within the immediate control of the initial food business operator, removal of the product does not constitute a withdrawal and there is no obligation to notify the authorities. However, if the food is injurious to health, the requirement to notify the authorities immediately will still apply.

Recall

Recall means removal of the product from the supply chain in circumstances where the product has reached consumers.

Where withdrawal is required and the affected food product may have reached consumers, the food business operator must advise consumers of the reasons for the withdrawal, and if necessary recall from consumer products already supplied to them.

A recall is required if other measures are not sufficient to achieve a high level of health protection. If a recall is necessary, operators must take steps to ensure the return of the unsafe product, usually by advising consumers to return or destroy the affected food.

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