Ben Thomas instructed in Food Allergen case arising out of breaches of Food Safety Regulations where a customer sufferred an anaphylactic reaction.Park Square Barristers
Ben Thomas was recently instructed, on behalf of a Local Authority to prosecute a case under Regulation 19 (1) Food Safety and Hygiene (England) Regulations 2013, where the identity of the Food Business Operator (FBO), and who could be liable for breaches of Article 14 Regulation (EC) No 178/2002 was in issue.
In summary, a customer had placed an order for a takeaway, and due to a serious peanut allergy, they had made a request that the order be free from peanuts. Unfortunately, the dish supplied contained peanuts (due to the use of mixed nut powder) and as a result the customer suffered an anaphylactic reaction, luckily due to prompt medical care and assistance they made a full recovery.
The matter was reported to the Local Authority and an investigation commenced. While there was no dispute, at trial, as to the fact that there had been a contravention of Article 14 (1) Regulation (EC) No 178/2002, a significant issue emerged as to who could be liable for such a breach.
A food business is required to register with the relevant local authority, further every food business is required to register the identity of the Food Business Operator with the local authority. The Food Business Operator is the person responsible for ensuring the business is complying with the requirements of food law.
Article 3 (3) Regulation (EC) No 178/2002 defines a Food Business Operator as “the natural or legal persons responsible for ensuring that the requirements of food law are met within the food business under their control.”
Given the requirement for registration, the identity of a Food Business Operator and the person liable should be straight forward. However, in the case I dealt with, the business had been trading for such a long period of time that the registration record had no longer been retained. What did remain were historic documents which suggested the owner of the business may have previously registered as the Food Business Operator. In addition, while the identity of the owner of the business was clear, the evidence suggested that another person within the business exercised day to day control and the owner did not have any day-to-day involvement with the business.
The key question was therefore whether prior registration and/or ownership of a business was conclusive as to the identity of a Food Business Operator. The answer to that question was provided in the, not very well publicised, decision of the High Court, R (On the Application of Rasool) v Tower Bridge Magistrates’ Court  EWHC 4736 (Admin).
The Appellant in that case had been prosecuted under the predecessor legislation to Food Safety and Hygiene (England) Regulations 2013. The registered Food Business Operator was a Limited Company, of which the Appellant was a director. Due to the liquidation of the company, the Local Authority decided to prosecute the Appellant on the basis that he was also the Food Business Operator, albeit he was not registered. On appeal it was argued by the Appellant that he could not be the Food Business Operator, on the grounds that the Company was the registered Food Business Operator, and that there could not be more than one Food Business Operator in place at the same time. It was argued that registration was conclusive to the identity of the Food Business Operator.
The High Court rejected that argument and dismissed the appeal, at Paragraphs 20 to 23 and 27 to 31 of the Judgment, the High Court considered the issue of whether there could be more than one Food Business Operator and the impact of prior registration. The Court found that the wording of Article 3 (3) Regulation (EC) No 178/2002 clearly contemplated that there could be more than one Food Business Operator in place at the same time, that registration was not conclusive to the identity of the Food Business Operator and that the question of who the Food Business Operator was, at the relevant time, was a question of fact to be determined on the evidence by the Court.
Applying those principles to the case I was involved in, the Court concluded at trial that notwithstanding the lack of any records of registration and the Defendant not being the owner of the business, the fact that the evidence showed the Defendant was in control of the business at the relevant time and had been exercising day to day control, meant that he was the Food Business Operator. Further the Court concluded that even though the Defendant was not the owner of the business, but an employee, he could still be liable under Article 14 (1) for placing unsafe food on the market, on the basis that as the Food Business Operator he was responsible for ensuring compliance with food law.
In conclusion therefore, it is important when considering the question of the identity of a Food Business Operator and who is liable for placing food on the market, to go beyond simply the ownership of a business and the registration and look to see who is exercising control over the food supply from the business.
Ben Thomas is a Specialist Regulatory Advocate panel member and is ranked as a Leading Junior for Business and Regulatory Crime in The Legal 500 (2023)
‘Ben communicates well and has a very calm manner with clients. He quickly identifies the key issues in a case.’