In this week’s post, Regulatory and Food Safety Barrister Jeremy Barnett looks at what you need to understand when it comes to defending your claim when something goes wrong and, therefore, take the necessary steps beforehand to ensure you can fully support that claim if the time comes!
There are two defences under the Food Safety Act which apply to the main offences, the principal one is the defence of ‘due diligence’, the second is if the act is the due to the act or default of another (where you have to give notice to the court that you are running this defence).
Due diligence is a defence which is designed to balance the protection of the consumer against defective food with the right of traders not to be convicted of an offence they have taken all reasonable care to avoid committing. The result should be to encourage all concerned to take proper responsibility for their products.
This defence is available where the person charged proves that they took all reasonable precautions and exercised all due diligence to avoid the commission of the offence by himself or by a person under his control. The burden of proof lies with the person or company accused on a balance of probabilities. That is why it is so important to deal with the steps set out above before any issue arises, to show that you were acting as a responsible business who could not have reasonably forseen the issue that arose. The question for the court is what reasonable steps could have been taken by a business of your size, and this can sometimes be a matter for expert evidence. For example, a small business might not be required to undertake the same precautions which would be expected of one of the major retailers.
The defence of due diligence also applies to offences under the General Food Regulations 2004 and the Food Hygiene Regulations 2006.10. Retailers of own label products can rely on the second defence if the omission that arose is the fault of another.
We hope you’ve enjoyed our nuggets of advice around your business’s rights should you run into any trouble. This is an excerpt from one of our longer SME-friendly guides, which you can download for free here. Keep this handy at all times so you don’t get bitten!