In the guide
This guidance is for England
Local authorities are required to enforce the provisions of the Food Safety Act 1990 and regulations made under the Act. Food composition and labelling is controlled by this legislation, the most serious offence being to sell 'to the purchaser’s prejudice any food which is not of the nature or substance or quality demanded by the purchaser'. Essentially this means food should be of the quality the consumer is expecting to receive; low quality food is not a problem as long as the customer knows that is what he has paid for.
Most enforcement action for incorrect descriptions comes from formal samples of foodstuffs. If a sample is shown to be incorrect, there are several possible courses of action that can be taken:
- a verbal warning
- the serving of an improvement notice
- a departmental letter of caution
- a simple caution
The majority of enforcement action for incorrect descriptions will result from taking formal samples of foodstuffs (which includes drink). Formal samples may be taken for various reasons, as outlined below:
- investigation of consumer complaints
- conducting a trade audit
- during a routine inspection
Procedures for sampling are strictly controlled by specific regulations and codes of practice. This legislation gives authorised officers the power to purchase or take food samples at all reasonable hours; in other words, when the business is operating and staff are on the premises. Failure to allow an authorised officer to take a sample could lead to the commission of an obstruction offence.
Formal food samples will generally consist of either one sample split into three identical parts or three samples taken from an available batch, depending on what is being sampled and what is being tested for. The three parts are distributed as follows:
- selected and retained by the person in charge where the sample is taken
- submitted by the officer to a public analyst for analysis
- stored safely as a reference sample in case of a dispute
The reason for the division of samples, as indicated, is to allow potential defendants the opportunity to have their own sample portion analysed if the results from the public analyst reveal a misdescription / compositional problem. If you have manufactured or altered the food, or applied the description that is being tested to the food, you may be responsible for any offence. If you are only retailing food supplied to you in the same state, your supplier / the manufacturer may be the responsible person.
The sample portion kept by you is very important and should be stored safely until you receive notification of the analytical results.
It is important that you carry out the following actions relating to the sample you have retained:
- keep a clear record of where the sample is stored, so that it can be found easily in the future
- ensure that the best recommended storage conditions are used (see 'Storage of sample portions' below)
- inform your head office (if applicable) that an official sample has been taken
- if the enforcement authority informs you of a problem with the part of the sample it took, you may wish to test the sample (if you have suitable facilities) or have the sample tested by an independent party
- if the sample is sent for independent analysis, you must ensure that clear details are given of the test required and storage conditions (if required), and that the storage during transport to the laboratory is appropriate
If there is a dispute over the analysis, the final portion is sent to the laboratory of the Government Chemist, which has the final say on the result.
If a sample is proved to be incorrect, several possible courses of action may be taken against the person responsible for the offence:
- verbal warning
- serving of an improvement notice
- departmental letter of caution
- simple caution
The officer must check the Primary Authority website to find out if the business has a Primary Authority partnership. If a partnership exists the officer must notify the Primary Authority about any proposed enforcement action (as defined in the Regulatory Enforcement and Sanctions Act 2008). See our guide 'Primary Authority & Home Authority' for more information on these partnerships.Back to top
Storage of sample portions
Where you are given a portion of a sample to retain, you should keep this frozen or stored at ambient temperature, depending on whether the product is likely to deteriorate. As a rule, fresh food such as meat and dairy products will need to be kept in the freezer. Dried products such as rice, spices, nuts and other goods stored at room temperature should continue to be stored as per the instructions on the packaging to prevent deterioration.
Occasionally you may be given specific instructions by the sampling officer, and you should follow his guidance - for example, if fresh food is being sampled to check whether it has been previously frozen.Back to top
In some instances sampling officers will take a whole product as a single sample - pies for example - in order to establish the percentage content of different ingredients throughout the whole product.Back to top
Further readingBack to top
Last reviewed / updated: August 2016