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 the final part in summarising the draft new Food Safety Ordinance.
Enforcement (Part 5)
Powers of Entry
- These powers apply when authorised officers are undertaking duties specified by the Ordinance or any Regulations made under it. This section ensures the officer can enter any relevant premises.
- The definition of premises (section 2) includes ships and aircraft, fixed and moveable premises and all food businesses.
- Power to enter private dwellings under specific circumstances is also included. It should be noted that if a private dwelling is being used to produce food for sale ( e.g. cakes), whether retail or wholesale, this makes it a food business and authorised officers can enter those parts involved in the business without the need for a Warrant or 24 hours notice.
Hygiene Improvement Notices (HIN)
- Hygiene Improvement Notices are designed to address non-compliance with the details of the legislation, especially with regard to infrastructure, process and management.
- The Food Business Operator must be given time to comply with the HIN. The minimum time allowed is 14 days but, depending on the nature of the non- compliance, it could be much longer.
- The authorised officer drafts, signs and serves the notice, and then checks compliance at the end of the notice period. Failure to comply is an offence.
Remedial Action Notices (RAN)
- These notices can be used to stop production or stop the use of equipment or part or all of the premises immediately. They are issued by the authorised officer and do not require confirmation by the court.
- RANs do not have any expiry dates. The RAN must be lifted as soon as an authorised officer is satisfied that the breach or contravention no longer exists. ‘As soon as’ is not defined in the legislation but could be considered in the Code of Practice.
- Subsection 4 is written so that one authorised officer can issue the RAN but another authorised officer can lift it when appropriate. This is included in anticipation that the number of authorised officers on St Helena may need to be enlarged in the future.
- It is an offence for a Food Business Operator to fail to comply with RAN.
Fixed Monetary Penalty Notices (FMP)
- FMP are fines levied directly by the Food Authority. There is no need to serve an improvement notice or take a prosecution.
- They can be used for low level or minor contraventions and the fine is generally quite low – in the nature of a parking or speeding ticket.
- The Food Authority cannot prosecute for any contraventions addressed by a fixed monetary penalty where anything subject to a HIN or RAN can ALSO be the subject of a prosecution. Failure to pay the fine levied by the FMP will be the subject of a prosecution.
- This allows the prohibition of a premises, equipment or processes, for use as or in a food business, following successful prosecution of the Food Business Operator for offences under the Ordinance or Regulations.
- The prohibition can be revoked by the Food Authority if the premises, equipment or process is improved or replaced in such a way that it no longer poses a risk of injury to health. This requires a visit which should happen within three days of the Food Business Operator requesting it, and once the authorised officer feels the Food Business Operator can demonstrate that the premises/equipment/process is no longer a risk to health – the food authority should issue a certificate allowing the premises to re-open, equipment to be used or the process to re-start. This should be issued within 14 days of the visit.
- This section also allows the prohibition of the Food Business Operator from participating in the management of a food business, following successful prosecution for offences under the Ordinance. In this case, the Food Business Operator must apply to the court for the prohibition order to be lifted (the Food Authority cannot do it).
Inspection and Seizure of Food
- Food can be deemed unfit for any number of reasons according to the principles listed in Section 8. Proof that the food is unfit may, but is not required to, rely on the results of sampling carried out under section 20. The authorised officer should determine whether sampling is required and appropriate to determine safety.
- Food can also be deemed to be unsafe if it has been produced, processed or distributed in or by premises which fail to comply with any of the Regulations made under section 7 of the Ordinance. In this case, the authorised officer should certify that this is the case. Sampling should not be carried out.
- Authorised officers may also require food not to be moved from the premises or to be moved to a designated place using this section. However, the decision must be made within 21 days as to whether the food is unsafe. If it is found to be unsafe, it must be seized. If it is not unsafe, it must be released. The Food Business Operator may claim compensation for any loss if the food is not unsafe.
- Once the food has been seized the authorised officer must present the food to a Magistrate and demonstrate to the Magistrate’s satisfaction that the food is unsafe. The Magistrate can then order the condemnation of the food.
- The advantage of having a two step process is to protect both the Food Business Operator and the authorised officer. Each must or may make representation to the Magistrate who decides the final outcome.
- The Food Business Operator can be charged for the destruction of the food which should take place under the control of the Food Authority.
Detention of Food
- This section allows the authorised officer to detain food or an animal product subject to investigation. When used for food, this section differs from the powers offered in section 18 to hold food in that:
- No time limit is set for the decision. This may be required if food has to undergo analysis which takes place off Island where more than 21 days may be needed before results are available.
- No compensation is payable if the food is found to be safe.
Sampling, Examination and Analysis of Food
- This section allows the authorised officer to purchase or take a sample of food, ingredients or any other substance used in food preparation, food sources, and contact materials. This includes swabbing surfaces and equipment, but not food handlers.
- It is necessary to be able to both purchase or take as there may be occasions where sampling is required but there is no retail facility, for example where ingredients or raw materials are to be sampled.
21 September 2015