Food safety – to recall or not to recall

EU Law Regulation (EC) 178/2002 'General Food Law' requires that food shall not be placed on the market if it is unsafe. Unsafe food is defined as that which is injurious to health or unfit for human consumption. Food business operators (FBOs) are required to initiate procedures to withdraw from the market any food which they have imported, produced, processed, manufactured or distributed which is unsafe and, if necessary, where the product has reached consumers, warn those consumers and, where that warning is insufficient to protect public health, recall the product. The relevant enforcement authority must also be advised, namely the Food Standards Agency for England and Wales and Food Standards Scotland for Scotland.

There have been over 10 separate food recalls in the UK in August 2023 alone, ranging from items with undeclared ingredients to others contaminated with Listeria monocytogenes. SA Foods, Iceland, Tesco and Aldi are some of those FBOs who have required to take recall action.

The decision on whether to recall a product is not an easy one to make. Initiating a recall without properly assessing the situation can result in significant damage to the business, not just in terms of the cost of needlessly halting production, initiating the recall and liaising with the enforcement authorities but also in terms of loss of sales and damage to the brand reputation.

At the same time, failing to take appropriate action can also have a devastating impact on the business. Once an FBO is on notice that there may be a safety issue with its product, but fails to take appropriate action to investigate that issue and take steps to protect consumer health, whether through withdrawal or recall, that FBO runs a real risk of prosecution for breaching its obligations. FBOs who breach their obligations under the EU Regulation 178/2002 face an unlimited fine for contravening Regulation 4 of the General Food Regulations 2015. Individuals can also be prosecuted and face up to two years imprisonment if convicted.

This risk of prosecution, and the seriousness of any offence, is heightened if a consumer were to fall ill or, at worst, die following consumption of unsafe food which was known, or suspected, by an FBO to be unsafe. Of 150 food recalls in the UK in 2022, 84 related to undeclared allergens. It is reasonably foreseeable that failing to take action in a scenario where an allergen is revealed to be contained, unexpectedly, within a food item, could give rise to serious injury or death.

Such circumstances would undoubtedly give rise to prosecution and significant fines and for any individuals, a period of imprisonment. Indeed, some may recall the prosecution of Cadbury, a number of years ago, the company fined £1million, after it waited 6 months to report a break out of salmonella in one of its factories, by which time several dozen members of the public had been infected, some critically so.

Planning ahead

To assist in making the right decision, an FBO should, as part of its food safety management system, have in place a food withdrawal or recall plan, which will identify potential risk and provide a framework for managing the recall process, including:-

• A detailed risk assessment of all food products should be carried out, looking at ingredients, processing, packaging and distribution. This process will assist in identifying potential hazards, such as contamination sources, which could lead to recall.
• Detailed procedures to be followed for investigating the issue, handling the recall process and for notifying the enforcement authorities, as well as informing the media strategy to best protect the brand reputation.

With such a plan in place it is important to ensure that employees who will be involved in this process are properly trained and thus aware of what will be expected of them. Such plans should also be reviewed regularly to ensure they remain relevant and fit for purpose.

Whilst having a plan in place will not necessarily avoid the risk of a food recall, it will allow for a controlled and measured response to any potential food safety issue, and provide a confidence that whatever decision taken will be the right one.