On 1 September 2015 SHG announced that St Helena will be updating its food safety legislation. The full legislation comprises the Food Safety (General Food Hygiene) Regulations and Food Safety (Products of Animal Origin) Regulations.
This week we provide part two summarising the proposed new Food Safety Ordinance.
Enforcement (Part 5) will follow next week.
Offences (Part 3)
Food Not Complying with Food Safety Requirements – This section makes it an offence to place unsafe food on the market. Placing on the market is defined in Part 1, and includes the transfer of food as well as sale. In this way, the requirement for safety can be applied to all stages of the food chain and there is no requirement to prove a sale has occurred.
Rendering Food Injurious to Health – This section is designed for acts which cause food to become injurious to health and is usually used in cases of deliberate or malicious contamination, such as adulteration for economic gain. It can be used throughout the food chain with no requirement to prove any sale.
Consumer Protection – Food may be sold which is unacceptable to the purchaser but not necessarily unsafe. This section is designed for consumer protection to ensure the food supplied during a sale meets the purchaser’s expectations with regard to nature, substance and quality.
Defences (Part 4)
This part offers two statutory defences which should be available to Food Business Operators as the Ordinance is strict liability
Due to the fault of another person – The ‘other person’ referred to in this defence must be another ‘legal’ person, not an employee under the control of the Food Business Operator.
Due Diligence – Here the Court decides if a Food Business Operator has a statutory defence.
In reality the Authorised Officer is expected to make an assessment of the plausibility of the Food Business Operator’s potential defence and if the officer feels that the Food Business Operator has genuinely taken all the precautions that could reasonably be expected and has shown all due diligence in implementing those precautions, the officer would not recommend to the Regulatory Authority that public money be wasted in pursuing a prosecution.
Administration (Part 6)
Registration and Licensing of Businesses
- Licensing and approval have been put in this section so that the appeals process for both can be listed in part 6.
- The application for registration should trigger an onsite visit. Compliance should result in the licence and/or approval being awarded. There does need to be some timescale here – how long does the Food Authority have to make the visit and to determine the licence. This can be in legislation or can be put in the code of practice.
- Multi-site businesses can be registered as one business but each site will require a separate licence or approval – as licensing or approval conditions relate to the premises rather than the business.
- Issue and removal of licence/approval has been allocated to the Food Authority rather than Regulatory Authority as it is an administrative process.
Service of Documents
- Sets out the procedure for service of documents which is required or authorised under the Ordinance.
Time Limits for Prosecution
- These limits mirror those in UK legislation.
Punishment for Offences
- The maximum penalty fines will need to be fully discussed and agreed.
Offences by the Body Corporate
- This section is included in anticipation of the expansion of the food industry in St Helena, where large companies from outside the Island may wish to trade here.
- Appeals regarding licence or approval can be made within 30 days of the decision. This includes the decision to revoke a licence or approval.
- Appeals against a Remedial Action Notice can be made within 30 days.
- Appeals against a Hygiene Improvement Notice can be made within 14 days as this is the minimum that can be given a Food Business Operator on a Hygiene Improvement Notice to carry out the work required.
16 September 2015