At the end of May 2015, Stericycle Expert Solutions released its European & US Recall Index and Notification reports. In the EU Recalls and notifications dropped in the first 3 months of 2015 but, the nut subgroup experienced a 67% increase, highlighting the importance of monitoring imported foods.

EU Recalls and Notification Reports Q1 2015

In relation to food recalls the report comments that: “Recent food scandals have made European consumers wary about food products, and regulators responded with new laws to improve safety”.

The Food Information Regulations – EU Regulation 1169/2011 (EU FIR) came into force on 13 December last year. Those Regulations required food business operators to make allergen information available for non-pre-packed/ loose foods for the first time, to highlight allergens in lists of ingredients for pre-packed foods, to ensure food information is more legible (for example by introducing a minimum font size on labels) and requiring mandatory origin labelling in certain circumstances. The Regulations will also require a mandatory nutrition declaration for most products from December 2016. Many manufacturers have also introduced quality improvements in their facilities and warehouses to help ensure food safety throughout the supply chain.

The overall level of recall and notification activity may suggest that this new legislation and perhaps greater commitment to food safety has served to improve the situation generally. In total there were 755 food recalls and notifications in the first quarter of the year which demonstrates a reduction of 6% from the last quarter of 2014.

Some food groups however increased their recall numbers. Nuts, nut products and seeds were of particular concern. Most of the recall relating to nut products related to products of Chinese or Indian origin. It is clear from the data that globalisation of the food supply remains problematic for regulators and businesses. While the labelling requirement provided by the EU FIR is a step in the right direction, adoption has not unfortunately been uniform across all EU countries.

Aflatoxin (toxins found in nuts and seeds), representing 21% of all recalls and notification activity, was the highest factor recalls in Quarter 1 2015. Other cases of food recalls in this quarter were due to the following:

• Salmonella 16 %;

• Pesticide/Fungicide 16%;

• Metal Fragments 6%;

• Chemicals/Toxins 5%;

• Listeria 4%;

• Insects 3%; and

• E.Coli 3%.

For the food industry in general the overall result of the report is positive. The European Recall & Notification Activity Index shows an improvement, with a 4% decrease on recall and notification activity since 2014 and 6% decrease since the last quarter. Recalls and notifications generally (including not only food, but also consumer products and automotive) decreased by 13%.

In the US       

In contrast, the US food industry experienced 121 recall/ notification events in the 1^st quarter of 2015, which represents an increase of 15% since the last quarter of 2014. An increased number of companies were also involved with 114 manufacturers having to recall a product in the first 3 months of 2015. (Q1 2015 US Recall Index).

The report highlights the problem of the undisclosed use of allergens with 95% of recalls being related to undeclared allergens and 90% being in relation to the Herbs and Spices sub-food group (which reflects the issues also experienced recently in the UK with almond powder being substituted for cumin and paprika, as reported in February in the popular press. According to the Independent the US had (by February 2015) experienced the highest number of allergy-related recalls in the last ten years.

 Severity of the risks involved 

As with the EU Report, it is clear from the Stericycle US data that globalisation of the food supply remains problematic for regulators and businesses. The report underlines the potential ‘multiplier effect’ with a single original nut product in a Q1 2015 spice recall affecting 14 companies, 100 brands, 153 products and 769 products with different packages.  

The reality behind the figures is a dangerous one with allergy sufferers being unknowingly exposed to potentially fatal risks. The Independent described the food scandal in relation to the undisclosed use of nuts as “more serious” than the horsemeat crisis. The paper also reported that the unit in relation to food crime, set up by the UK Government following the horsemeat scandal has launched an investigation into the undeclared use of nuts). Due to an unsuccessful cumin harvest in India the price of the popular spice has increased significantly, and it seems that for financial reasons the cumin seeds in a number of products may have been replaced with cheaper peanuts and almonds.

The widespread and wide-ranging use of cumin as an ingredient increases the risk for allergy sufferers, who could be exposed to nut-based cumin replacements in products such as soups, curries, curry powder, processed meals and sauces – as well as desserts and alcohol. For example, in the UK, an own brand Fajita Meal Kit from a supermarket was recalled because almond protein, which was not declared on the packaging, was found in the seasoning sachet included with the kit. The Independent reports that as yet, it is unclear whether the use of the nut was fraudulent or accidental. The Food Standards Agency also found almond proteins in samples of ground cumin at a specialist spice company based in Bristol.

Consequences, penalties and defence strategies

Charges in relation to the adulteration of food can be serious and could even include manslaughter. A recent example, and perhaps the first of its kind the UK, was reported recently in the popular press when an Indian takeaway owner was charged with manslaughter after a customer with a severe peanut allergy died, having eaten a meal in which ingredients had been substituted with peanuts. Some reports say that the peanuts were used in place of almonds and others that they were used in place of cumin. 

The newspaper coverage and renewed focus on food integrity since ‘horsemeat’ also means that there may be significant reputational risk if food adulteration is suspected or discovered.

Moreover, the financial penalties for breach of food information and food safety laws for manufacturers, restaurateurs and supermarkets are significant, and have recently increased. Since 11 March 2015 the previous £20,000 fine limit for magistrates in England and Wales has been removed (under the Legal Aid, Sentencing and Punishment of Offenders Act 2012). For a conviction under the Food Safety Act 1990 in the magistrates’ court, the level of fine is now an unlimited amount (which is also the case for trial in a higher court). Relevant offences include: selling food not complying with safety requirements; selling food not of the nature, substance or quality demanded; and falsely describing or presenting food, all of which could potentially be relevant where undeclared allergens have been used.

The extent of precautions a business puts in place to protect against food adulteration will be relevant when seeking to establish a defence to such offences. Companies and professionals in the food industry should take all reasonable precautions and exercise all due diligence to avoid committing offences under UK legislation. However, whether the actions which have been taken meet the test of ‘all due diligence’ and ‘all reasonable precautions’’ will ultimately be decided by the courts on a case to case basis. There is no ‘magic formula’, nothing that all businesses can do that will mean they will automatically meet the threshold of the due diligence defence. It will depend on all of the circumstances in the particular case.

Relevant precautions might include:

1. Horizon scanning exercises to assess the risks and weaknesses in global supply chains or in the information given to a business by its suppliers;

2. Considering and implementing safeguards to protect against identified risks, for example supplier audits, or random sampling of goods, all of which should be adaptable when horizon scanning identifies increased risk;

3. Ensuring transparency of supply chains and robust traceability systems;

4. Following recognised industry or trade body guidance, such as standards developed by the Food and Drink Federation or the British Retail Consortium;

5. Devising and testing crisis management plans for when a potential issue is identified;  and

6. Documenting all systems and due diligence measures agreed and carrying out audits to check compliance with those systems across the business.

In addition to such practical precautions in relation to the products themselves, it may be sensible to consider your supply agreements and relationships. Supply chain partners can negotiate responsibility for recalls at the beginning of their relationship and may want to consider which party should manage the administration of any recalls and interaction with regulators. Unduly pressuring suppliers (for example, by failing to comply with basic payment terms) may inadvertently lead to them, in turn, cutting corners and increasing your exposure to unacceptable risks.

A continued focus on having all of the precautions in place that could reasonably be expected for a consumer-facing industry will not only help businesses to protect themselves against the severe penalties that may be involved in the event of successful prosecution, but may also lead to a reduction in the number of food recalls and notifications due to this issue across the globe. Perhaps more importantly, such precautions could also help to protect the unsuspecting allergy sufferer.