UK: FSA consultation on its approach to regulatory decision making

Last Updated: 21 April 2005
Article by Mark Tyler and Jessica Burt

On 1 April, the Food Standards Agency (FSA) launched a consultation on its approach to regulatory decision making. The Policy Statement considers stakeholder engagement in consultations generally and sets out the objectives and principles of regulatory decision making, the evidence base underpinning any decision as well as its approach to deciding the most appropriate action in each case and the factors that are taken into account.

FSA has invited comments by 30 June 2005.

For further information on this consultation and some of the main points for industry as well as a consideration of the FSA's decision making process with reference to the recent Sudan 1 recall, please view the article in full below:


Full Article

On 1 April, the Food Standards Agency (FSA) launched a consultation on its approach to regulatory decision making. Click here for more information.

To view the FSA draft Policy Statement please click here.

The Policy Statement considers stakeholder engagement in consultations generally, and sets out the objectives and principles of regulatory decision making, the evidence base underpinning any decision as well as its approach to deciding the most appropriate action in each case and the factors that are taken into account.

Key Consultation Questions

Engagement

The FSA focuses on whether or not they are accessing "hard to hear" consumer groups as well as small and medium sized food enterprises.

One aspect which is not covered however is any aspect of 'weighting' given to responses to consultations. For instance the response from a fringe consumer group should not be commensurate with the response from a global company that has consulted with employees and suppliers before providing their response.

Protecting consumer' "other interests" generally

Aspects to take into account are stated to include consumer choice and cost repercussions of any action, the heterogeneity or otherwise of consumer perceptions and protection of the most vulnerable consumers. The question is asked if these aspects should be taken into account and what additional issues should be considered.

Whether or not any action will have a significant impact on achieving the aimed protection and the provision of a 'level playing field' for industry and freedom of commercial expression are not considered as options under this heading.

Costs and benefits

There is some reference to assessing the costs and benefits of any decision, which includes administrative costs for industry. However, the wider implications of the costs of any restrictions on the market against any limited perceived social good is not considered.

regulation and alternatives to regulation

The various options for intervention are listed ranging from doing nothing to direct regulation and encouraging enforcement action. The question raised if there are any other possible steps not listed.

The intervention of publishing survey result showing the extent to which individual companies follow best practice guidance is stated in the consultation summary to be reasonable as it allows consumers to be informed about the extent to which best practice is being followed. The argument against this position is that this publication amounts to "regulatory creep". The FSA raises questions as to whether stakeholders agree with these publications and if it is felt that this information is useful to consumers.

One response may be that it will depend upon whether or not any of the best practice issues coincide with those issues that consumers feel strongly about as to whether or not this practice may be deemed at all useful to them.

when to take action

Different factors influence the approach in each case, this includes; different types of risk (eg if there is an immediate and acute threat,) speed of implementation, and in the event where there are possible rather than actual risks it may be the FSA will inform consumers, provide advice and still allow the consumers to make their own choices. The aim is stated not to reduce all risks, but to take action to reduce risks to the level that would be acceptable to the 'reasonable consumer'.

Lord Phillips in his 16-volume, £30m inquiry into BSE drew the conclusion that 'The Government does not set out to achieve zero risk, but to reduce risk to a level, which should be acceptable to the reasonable consumer.' This of course begs the question of what is acceptable and what is reasonable.

It has been presented by the FSA (Sir John Krebs, Chair of the Food Standards Agency at Queen's University, Belfast, on 5 November 2003) that the notion of assessing risks on the basis of scientific facts, coming to a conclusion about risk management, and then telling the public, should be blended with public attitudes towards the acceptability of risks and the costs and feasibility of actions to manage risks.

However, the legislative requirements under Regulation 178/2002 (Article 19) state that where a product not in compliance with the food safety requirements may have reached the consumer, consumers must be effectively and accurately informed of the reason for the withdrawal. If necessary products must be recalled when other measures are not sufficient to achieve a high level of health protection. i.e. recall is only required where other measures are insufficient to achieve a high level of health protection. It is therefore clear that the FSA by referring to the 'reasonable consumer' in its consultation is going much further than European legislation in factors governing a potential recall decision.

It is likely that the FSA's position on the Sudan 1 recall followed their own factors in making the decision for recall with an emphasis on public opinion as opposed to any consideration of if other measures would be sufficient to achieve a high level of health protection as part of a risk assessment. The FSA alert itself considered the level of risk to be "very small". (The FSA alert that was circulated on 18 February 2005 stated "Sudan I could contribute to an increased risk of cancer and it is not possible to identify a safe level or to quantify the risk. However, at the levels present in these food products the risk is likely to be very small.")

The FSA has invited comments to this consultation by 30 June 2005.

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq

Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.

The original publication date for this article was 18/04/2005.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions