Why food safety records matter:
an introduction to UK food law
and the records it requires
As anyone involved in the business of food preparation, service
and retail will tell you, keeping food safety records is important.
But when it comes to explaining exactly why they matter, what
records should be kept and how they would ultimately be
used should something go wrong, many chefs, managers and
Contents
1. What food safety records are required by law?
2. How does food safety law operate?
proprietors are much less confident.
3. Who does the law hold responsible for food safety?
This white paper will provide an introduction to food safety
4. Where and how does food safety law begin?
law, summarising the key legal requirements facing every food
business operator (FBO), and explain why food safety records
really are important. It will also:
explain the key legal terminology, concepts and law
enforcement procedures involved in food safety law;
highlight the risks – both business and personal – to FBOs
that follow from a food poisoning incident and law enforcers’
subsequent investigations;
look at the way records are kept, assessing the deficiencies
common in most paper-based record systems; and
look at the benefits of automated record keeping, digital data
5. What is the ‘Due Diligence Defence’?
6. What does ‘all reasonable precautions’ mean in
practice?
7. What does ‘all due diligence’ mean in practice?
8. Demonstrating due diligence: problems with the
traditional method
9. Demonstrating due diligence: advantages of the
modern method
10.Conclusion
storage and analysis, and tamper-evident audit trails.
This white paper is supported by Checkit wireless food safety monitoring:
t: +44 (0)1803 407700 e: [email protected] w: www.checkit.net
1
Malcolm Kane JP MSt BSc is an independent food safety consultant. During
a long career in food safety management, he has worked for Unilever, Ross
Frozen Foods, Dalgety Spillers and Waitrose. As Head of Food Safety, Supplier
Approval and Audit for Sainsbury’s supermarkets for 20 years, he was at the
leading edge of HACCP implementation in the UK and European food industry
and pioneered the adoption of HACCP systems by the supermarket’s suppliers.
As advisor to the UK Department of Health at the CODEX Alimentarius
Commission, he helped to develop the global standard for HACCP systems. His
current focus is on food crime and he holds a Master’s Degree from Cambridge
University’s Institute of Criminology.
1. What food safety records are required by law?
2. How does food safety law operate?
In some industries, UK law is very specific about what
UK food law operates on the basis of the ‘Due Diligence
records must be kept. HGV drivers, for example, are required
Defence’ system.
to produce standardised tachograph data showing time
spent behind the wheel, speed and distance travelled.
Every FBO – the food business operator is defined as the
owner or ‘controlling mind’ of the business – is required to
But while food safety is clearly just as important as road
conduct a formal and technically verifiable food safety risk
safety, there are no such specific instructions when it comes
assessment of their food production, storage and distribution
to record-keeping within the food industry. That’s because
operations (which may include contracting this activity, but
there are so many different types of food and food process
not the legal responsibility for it, to a third-party expert).
involved that the law simply cannot be so prescriptive.
The food safety risk assessment system of choice is HACCP
UK food safety law requires every FBO to carry out a
(Hazard Analysis and Critical Control Point). Any other risk
verifiable risk assessment of their own operation, identifying
assessment system employed must embrace the principles
all potential food safety risks and then taking steps to
of HACCP. (There are many commercial risk assessment
manage them. This approach, which focuses on preventing
systems, most of which relate to operator and environmental
food safety issues occurring rather than policing them
safety. HACCP is unique among these in being specific to the
after they have happened, implicitly requires FBOs to keep
food industry and in focusing upon consumer safety.)
records of the steps they are taking to prove that they are
in compliance with the law. The form and extent of these
records will, of course, depend on the operation in question.
Any food being held hot for serving must be kept above 63°C,
by law, for example, and similarly any chilled food must be
kept below 8°C.
However, food safety records are not only important as
part of this programme of inspection and prevention. When
things do go wrong, people get sick and/or law enforcement
subsequently becomes necessary, food safety records
become crucially important, because only bona fide records
of compliance with a verifiable risk assessment will be an
acceptable defence in a Court of Law.
All critical control points identified in every HACCP plan must
be controlled by verifiable control measures, which must be
clearly defined in operational procedures.
Records must be kept, in some form, of the diligent
implementation of every identified food safety critical control
point (CCP), and securely stored for future reference and use
in Court. Falsified records could be regarded as an offence of
organizational fraud.
Without appropriate and accurate records there would be no
method of proving ‘due diligence’ i.e. that critical food safety
controls had been identified and implemented.
This white paper is supported by Checkit wireless food safety monitoring:
t: +44 (0)1803 407700 e: [email protected] w: www.checkit.net
2
3. Who does the law hold responsible for food
safety?
5. What is the ‘Due Diligence Defence’?
Every food handler and manager, right up to and including
and all due diligence’.
the FBO, is generally responsible for food safety. Everyone
is therefore responsible for washing their hands after going
to the toilet, for example. Every individual can be held legally
responsible for those specific activities that fall within their
duties and job responsibilities.
Specifically, the FBO is responsible for ensuring a bona
fide HACCP plan is prepared and implemented. The FBO
is responsible for ensuring that suitable facilities (including
training) and equipment are provided to all operators to
enable them to produce clean and safe food, while all
operators are responsible for using such equipment properly,
keeping it clean properly, maintaining proper records as
required and reporting to line management if there are any
problems.
‘Due diligence’ is shorthand for ‘all reasonable precautions
When EHOs become aware of a food poisoning outbreak in a
particular population area, there will often be several potential
food service sources that may all need to be investigated.
An FBO who comes under investigation in this way has to
be in a position to present a ‘Due Diligence Defence’ to an
investigating EHO and, ultimately the Court, if only to be
eliminated from further enquiries. This requires the FBO to
be able to prove to the EHO and/or Court’s satisfaction that
all key food safety elements in EU/UK food law have been
diligently identified and implemented.
Being able to produce clear proof of due diligence should
persuade investigators that the business in question is
unlikely to have been the source of the food poisoning
outbreak. Furthermore, in the event that a clear link does
exist, proof of due diligence enables the defence to provide
4. Where and how does food safety law begin?
Food safety law begins with registration, being the sole
responsibility of the FBO.
Every new food business in the UK must be registered
with their local Environmental Health Department, prior to
commencement of the business’ food production activities.
The local EHO will provide a specific registration form for this
purpose.
A local EHO, who will be a food safety specialist, will then
arrange to visit the new business’ production location,
inspect and assess their compliance with food safety law
and good practice requirements, and advise the owners
accordingly.
With food service operators, this usually includes discussing
‘Safer Food Better Business’ (SFBB) documents, which are
freely available from the Food Standards Agency (www.
food.gov.uk/business-industry/caterers/sfbb and www.
evidence and argue that the FBO did everything reasonably
possible to avoid food poisoning, implying that some
unforeseeable or extreme chance issue may have been the
cause. Successfully arguing a due diligence defence can
be very difficult, and good records, such as temperature
records, are the most likely to be helpful in convincing the
Court or at least mitigating the FBO’s position.
In either case, it is clear that credible records are essential.
It is practically impossible to present an acceptable due
diligence defence in Court without presenting evidence that,
prior to the alleged offence, a HACCP-based risk assessment
has been completed and then incorporated into a bona fide
quality management system (sometime abbreviated to QMS),
and that this has in turn been diligently employed. Food
safety records are a de facto legal requirement for this.
In summary, the Due Diligence Defence amounts to
‘demonstrating that all reasonable precautions have been
taken and that all due diligence has been applied’.
sfbbtraining.co.uk), and which essentially simplify and
summarise all the legal food safety requirements, with
examples of basic ‘how to’ paper records and online food
hygiene training.
Full compliance with SFBB will, in principle, provide for a
basic ‘Due Diligence Defence’.
This white paper is supported by Checkit wireless food safety monitoring:
t: +44 (0)1803 407700 e: [email protected] w: www.checkit.net
3
Civil liability vs. criminal liability
In the UK legal system for food safety control, it is possible,
and not infrequently the case, for an FBO to accept
responsibility for having produced food which has been
proven to be the cause of food poisoning, to acknowledge
the fact, and even offer financial compensation to a victim,
yet still elect to go to a Criminal Court and plead not guilty to
a charge of causing it.
This may seem incongruous at first sight, but is actually a
very important separation of civil liability for causing injury,
from criminal liability for being culpably negligent.
Food safety law is criminal law. ‘Culpable negligence’ or
‘recklessness’ are specific levels of judicial sentencing
seriousness, ultimately carrying a maximum imprisonment of
two years. Good records can be a strong evidential support
to any FBO faced with an unavoidable civil liability, but trying
to defend against a charge of criminal liability.
Prosecution action such as this usually follows a sequence
of advice and warnings given by EHOs, both verbally
and in writing. This is their ‘enforcement pyramid’, and
starts with ‘friendly’ informal verbal advice, followed by
Improvement Notices, moving through Condemnation
Orders and up to Closure and Prohibition Orders, including
criminal prosecution (as in this example) enforced through
the Criminal Courts. Good records can be used in defence
mitigation arguments to demonstrate that the detail of the
early advice and Improvement notices has actually been
implemented by the FBO.
There is a recent marked trend for EHOs to enforce Closure
Orders at an earlier stage, a trend that recent financial and
resource cutbacks may only serve to maintain.
Licence
Revocation
EHOs can and do prosecute FBOs through the Magistrates’
and Crown Courts on the criminal basis of failure to meet
legally required food hygiene and safety requirements.
This would invariably be based on demonstrable evidence
of underprocessing, grossly poor sanitation, infestation
and/or vermin activity, raw meat to cooked meat crosscontamination, and ‘reasonable association’ of current food
poisoning incidents with any specific food service outlet. For
example:
September 2013; Coventry Crown Court; The owner of a
Coventry Restaurant and Takeaway was imprisoned for
27 weeks for multiple breaches of food safety regulations,
and his business partner given a suspended sentence of
six months imprisonment and ordered to carry out 180
hours of unpaid work in the community. The restaurant was
permanently closed.
Licence
Suspension
Criminal Penalty
Enforcement Notices
Civil Penalty
Warning Letter
Informal Verbal Advice
The ‘Enforcement Pyramid’: this diagram shows the range
of sanctions typically employed by EHOs, from the least severe
at the bottom to the most severe at the top. This is not an official
sequence that all EHOs must follow – officers will not necessarily
start at the bottom and can decide to institute criminal
proceedings at any stage – but instead serves as a general guide
to the steps that those enforcing the law are likely to take.
This white paper is supported by Checkit wireless food safety monitoring:
t: +44 (0)1803 407700 e: [email protected] w: www.checkit.net
4
6. What does ‘all reasonable precautions’ mean
in practice?
7. What does ‘all due diligence’ mean in
practice?
‘All reasonable precautions’ refers to HACCP and the quality
‘All due diligence’ means operating those ‘all reasonable
management system.
precautions’ explained above – in other words, actually
Reasonable precautions simply amount to the management
process of identifying all the food safety critical stages of
food production, storage and distribution; identifying suitable
carrying out the control measures and management
procedures that have been set out in the HACCP and QMS
documentation… i.e. ‘doing it’!
control measures to adequately prevent the risk of food
‘All due diligence’ can only be practically demonstrated by
safety failures; then putting in place appropriate management
producing bona fide records of implementation in some
control procedures to ensure they effectively happen.
format acceptable under scrutiny to a food safety law
Reasonable precautions can be satisfactorily demonstrated
by producing satisfactory HACCP documentation and QMS
enforcement officer (i.e. an EHO) and, ultimately, a Court of
Law.
documentation. There is an established format for all this
If, for example, the HACCP analysis identifies that the safety
documentation, broadly accepted within the food industry
of a particular food requires appropriate temperature control
and endorsed by the Food Standards Agency (see www.food.
at one or more stages of production, storage and distribution,
gov.uk) and it is obviously advisable for food businesses to
then presenting corresponding temperature records
follow accepted formats, especially for presenting evidence
consistent with the HACCP risk assessment will be the only
in Court.
practically acceptable means of demonstrating due diligence
SME food service businesses should essentially be
to the satisfaction of the local EHO and a Criminal Court.
complying with ‘all reasonable precautions’ if they have set
up SFBB to the satisfaction of their local EHO.
This white paper is supported by Checkit wireless food safety monitoring:
t: +44 (0)1803 407700 e: [email protected] w: www.checkit.net
5
8. Demonstrating due diligence: problems with
the traditional method
The traditional method of demonstrating due diligence in
Are the records otherwise credible? Specifically:
– Have the (temperature) probes been checked for
accuracy recently?
food safety has been by presenting the original paper-based
– How old are the probes and other equipment?
records, complete with smudges and fingerprints, that were
– Have they been serviced regularly?
taken at the time of the relevant food service operation. In
– Have they been cross-checked and their accuracy
principle this is satisfactory.
In practice, however, a great number of difficulties exist, all
of which cast doubt on the ability of paper-based records to
adequately prove due diligence:
Are the records complete and free from any gaps? If not,
the value of the records is compromised proportionate to
the deficiencies.
Are they signed properly? Are they dated properly? If not,
the value of all the records is diminished proportionate to
the deficiencies.
Are the records credible? If they are too perfect, a Court
may not believe they are bona fide in the face of contrary
evidence (such as victims of food poisoning).
Do they pass the ‘Continuity of Evidence’ test?
Specifically:
– Are they signed by the same person who is recorded on
the duty roster for that day?
– Are they signed by someone recorded as being on
holiday that day, or off sick? If so, why?
– Have the current records been kept in a properly
verified by an independent laboratory?
– Are the batteries changed regularly, or just when
someone notices they are flat?
– Who reads the records and takes responsibility for
them?
– Who double-checks them later?
– Who summarises them?
– Are there any suspicious trends – between morning and
evening, for example?
How long are the back records stored for? Are they
securely stored in a locked facility?
Are the records practically possible – is it believable that
staff have been carrying out the checks recorded?
– What is the labour-time cost per reading?
– Has anyone checked the practicality of doing the job and
taking records at the same time?
– Are staff, whether actively or not, being discouraged or
diverted from carrying out proper readings?
– Are there any de facto short-cuts in operation? Has this
been checked?
locked cabinet in a locked facility at all times? Are the
Some major food poisoning cases have involved EHO
keyholders identified?
enforcement officers extracting paper records of several
– Has anyone been in the habit of taking records home to
hundreds of individual documentary files, occupying
do some ‘work’ with them? If so, who and why? Was this
possibly a dozen box files, scrutinized retrospectively for
authorised and verified?
gaps, weaknesses, inconsistencies and, worse, actual
– Is it possible anyone may have tampered with the
records?
evidence of non-compliance with no accompanying
corrective action.
This white paper is supported by Checkit wireless food safety monitoring:
t: +44 (0)1803 407700 e: [email protected] w: www.checkit.net
6
Not only does such evidence reflect upon the failures of the
In-built calibration and verification systems can confirm
business, they also reflect upon the culpable negligence of
the credibility of every reading, with fixed date and time
the FBO, and have been successfully used in pursuit of this.
data records.
Even framed certificates of attending a food hygiene course
Servicing and verification schedules can be pre-
have been removed from the FBO’s office wall to be used
programmed and alarmed, and can be made incapable of
in Court as evidence of fore-knowledge of the food safety
being amended post-installation.
issue involved, for the purpose of reinforcing the seriousness
of the offence at the sentencing stage.
Few businesses, large or small, find their paper documentary
records are adequate to this degree of scrutiny. Such
scrutiny invariably follows from a food poisoning incident,
and the position of the FBO involved can be precariously
exposed by typical paper records.
It is for this reason that many are now looking towards new
technology that offers more reliable, automated methods of
record creation, analysis, actioning, summary and storage.
Battery viability checks can be continuous and
replacements can be well within the period of battery life.
The labour-time cost of each reading can be significantly
lower than the equivalent manual systems, making it more
feasible to include proper checks in the work schedule.
Furthermore, when connected to the internet and cloudbased data storage, a digital food safety monitoring system
can offer further advantages:
Data from multiple sites that are geographically separate
can be easily collated and viewed centrally from one
location.
9. Demonstrating due diligence: advantages of
the modern method
New technology, linking wireless sensors, temperature
probes and data loggers together with software designed to
manage the collection, display and secure storage of food
safety data, is now available to the food industry.
In contrast to the deficiencies highlighted in paper-based
records, there are numerous advantages to the use of secure
and reliable instrumental methods of data capture and
digitized data storage.
Programmable alarms, automatically triggered by late or
missing readings, can prompt corrective management
action and secure the integrity of the records as a whole.
Data integrity can be protected because there will be no
method for anyone to falsify any data entry at or after any
All data can be accessed remotely from any location
and viewed in real time, encouraging a more proactive
approach to risk management.
By replacing regular site visits, remote multi-site
monitoring can further reduce the labour-time cost of
managers supervising food safety.
Cloud back-up can provide secure off-site storage of
food safety records and effectively infinite data storage
capacity.
Beyond these advantages when it comes to proving due
diligence, a digital system offers the additional benefit
of making detailed data on the timing and extent of staff
actions, as well as the status of stock and infrastructure,
available for analysis, aiding the process optimization and
other business objectives.
data read-point in time.
Data can be made unchangeable and secure once
recorded. Tamper-evidence can be built in to recorded
data after the initial event, and attempted data interference
can be identified and alarmed with separate management
reporting systems.
The ‘Continuity of Evidence’ test can be met by preassigned operator PIN identification at the start of all
readings and throughout the reading procedure.
This white paper is supported by Checkit wireless food safety monitoring:
t: +44 (0)1803 407700 e: [email protected] w: www.checkit.net
7
10. Conclusion
This white paper has given a basic outline of UK food law
and how it is enforced, emphasising the vital role that food
safety records play in this process.
Given the paramount importance of adequate food safety
records – both in enforcing the law and, from the FBO’s point
of view, in providing a legal defence – the weaknesses of
traditional pen-and-paper record-keeping and the strengths
of a modern, automated approach outlined above cannot be
ignored.
Food safety records are the FBO’s only practical means of
demonstrating due diligence, satisfying the requirements
of the law and defending their business, their career and
their reputation. A technological approach to food safety,
combining instrumental data capture, storage and analysis
with programmed management alarms and reports during
operations, and summary management reports for concise
compliance reporting, is the surest method of providing this
protection.
To find out more about Checkit wireless food safety monitoring, please contact us:
t: +44 (0)1803 407700 e: [email protected] w: www.checkit.net