Here’s some food for fraud: the Food Standards Agency 2023 Investigation
It has been a decade since the infamous ‘horse meat scandal’ of 2013.
How horse meat came to adulterate the British and Irish food chain unravelled in the public eye: first an investigation, revealing the extraordinary extent to which horse meat was knowingly substituted for beef to be sold to the public; then government promises to “get a grip” on the “appalling” and “completely unacceptable” crime in the interim; and finally a set of criminal convictions and corporate apologies.
There is no doubt, therefore, that the Food Standards Agency (“FSA”) – the government department responsible for protecting public health in relation to food in the UK – is anxious over the re-emergence of mass ‘food fraud’ earlier this month.
What is going on?
As reported by Farmers Weekly, until at the very least the end of 2020 a food manufacturer and supplier – unable to be named, for legal reasons – had been passing off large quantities of foreign pork as British, when in fact these meats originated on the continent or even further abroad.
In March of this year, the FSA received intelligence over suspected mass fraud, and possible hygiene issues relating to the same supplier. Understood to be supplying the ‘big supermarket five’ – Tesco, Sainsbury’s, Asda, Aldi and Morrisons – a review of some reported 1.3 million documents pertaining to the supplier is now underway.
Employees have stated regulatory audits were deceived, and its records of produce falsified: one claimed the manufacturer would authorise the ‘washing’ of hams visibly off, or even the mixing of rotting pork with fresh product; another that EU bacon medallions were being bought at £1/kg and sold on as British for £12/kg.
What is the issue?
The issue at hand in the ongoing investigation is ultimately twofold: on the one hand an alleged serious breach of health and safety regulations, on the other mass fraudulent activity.
And therefore the two pressing questions are these: where does current criminal regulatory and fraud law stand to combat ‘food fraud’, and in what guise can we expect any charges to be brought forward?
There are no statutory definitions of ‘food crime’ at either EU or UK level. As a result, the legal instruments with which individuals have been prosecuted over (a) health and safety concerns and/or (b) fraud have been inconsistent and convoluted.
One recent study elsewhere has made the compelling argument for a clearer, and broader, conceptualisation of food crime in statutory law, based on the varied precedents available in charges of health and safety and fraud following the food crime in 2013.
But with no such reform yet undertaken, any charges brought following the present investigation are likely to take one of two routes below.
‘Food safety’ and the law
Health and safety concerns have found grounding in existing ‘food law legislation’: the Food Safety Act 1990 (“FSA 1990”), Food Law Code of Practice and General Food Law have, with precedent, been used to prosecute food-related offences in the frame of safety concerns.
Indeed, employers of Freeza Meats – one of several UK businesses at the centre of the horse meat scandal – were convicted in June 2015 under sections 14 and 15 of the FSA 1990, which together provide that
any person who sells to the purchaser’s prejudice any food which is not of the nature or substance or quality demanded by the purchaser shall be guilty of an offence (s 14(1), FSA 1990);
and
any person who gives with any food sold by him, or displays with any food offered or exposed by him for sale or in his possession for the purchase of sale, a label, whether or not attached to or printed on the wrapper or container, which –
(a) falsely describes the food; or
(b) is likely to mislead as to the nature or substance or quality of the food,
shall be guilty of an offence (s 15(1), FSA 1990).
With a scope of penalties imposed of anywhere between £2,500 and £100,000, Freeza Meats were ordered to pay more than £70,000 in costs for falsely labelling beef products and Halal meats, and a further £22,500 for selling burgers to which beef hearts and been added.
Concerns over food safety have found legal standing in regulatory non-compliance for not following proper due diligence.
‘Food fraud’ and the law
The selling of food not to the quality as requested, falsely presented or misleading as regard to its quality more naturally points towards the Fraud Act 2006 (“FA 2006”). It provides for three ways in which fraud may be committed:
By false representation (s 2, FA 2006);
By failing to disclose information (s 3, FA 2006);
By abuse of position (s 4, FA 2006).
In each instance, a defendant’s conduct must be dishonest, have the intention to make a gain, or cause a loss or a risk of loss to another to be found to have committed fraud.
The horse meat scandal saw two businessmen, Andronicos Sideras and Ulrik Nielsen, convicted of conspiracy to committed fraud on the above. They too, as with Freeza Meats, were found to have mixed meats for sale to the public.
What can we expect to happen next?
To claim packaged bacon to be the ‘best of British’, when in fact originating from the EU, would fall under false representation (s 2, FA 2006), and in such an instance be dishonest and for the making of a gain, satisfying requisite elements of the offence.
Yet precedent, as described above, appears to suggest an uneasy confluence between regulatory non-compliance and fraudulent activity. The significance of this is substantial: the strict liability offences that comprise the FSA 1990 limit imprisonment to a maximum of two years; convictions found under the FA 2006 with a fine or imprisonment of ten years.
In light of current information available on the ongoing 2023 FSA investigation, how charges may be brought forward remains to be seen.
Guy Lockwood
April 2023
