What ‘Due Diligence Defence’ means for Food Business Operators
Due Diligence Defence
The ‘Due Diligence Defence’ forms the foundation of food safety law in the UK, but what is it and how does it work in practice?
When EHOs become aware of a food poisoning outbreak in a particular area, it’s likely that there will be several potential food service sources that need to be investigated.
Any Food Business Operator (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’s satisfaction that all key elements in EU and UK food safety law have been diligently identified and implemented.
Being able to produce clear proof of due diligence and compliance 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 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 food safety 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 a HACCP-based risk assessment has been completed and then incorporated into a quality management system, and that this has in turn been diligently employed. Food safety records are a de facto legal requirement for this.
Five key questions to answer…
• Is work being done on time?
• Are issues being dealt with promptly?
• Are information sources free of fraud?
• Is equipment running properly?
• Are daily processes being conducted as required / specified?
In cases where one or more of those questions are impossible to answer, difficulties can arise in any type of business. Low visibility, lack of control and insufficient means of monitoring performance are all problematic. Blind spots leave businesses vulnerable to risks, resulting in potentially huge liabilities and reductions in business value.
Non-compliance with regulatory standards leads to financial penalties and reputational damage. Non-compliance with brand guidelines creates question marks over the customers’ experience of the brand promise, directly impacting occupancy, loyalty and therefore profitability.
In summary, the Due Diligence Defence amounts to ‘demonstrating that all reasonable precautions have been taken and that all due diligence has been applied’. This applies from the obvious legal perspective but also from an operations and financial perspective.
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