Food Safety Law and the Defence of Due Diligence
How can business operators demonstrate due diligence in putting food on the market?

Food business operators in Ireland have a legal requirement to sell safe food and an implicit obligation to a duty-of-care toward their customers. Due diligence in terms of food safety operations means operating ‘all reasonable precautions’ which in practice means carrying out safety control measures and management procedures that have been set out in certain framework documents such as the Hazard Analysis and Critical Control Point (HACCP) and the Quality Management Process (QMP).

In relation to the offence of placing unsafe food on the market the defence of due diligence is available under s.5 (3) (b) of European Communities (General Food Law) Regulations 2007 (S.I. No. 747 of 2007). The defence of due diligence in a prosecution involving food safety can only be practically demonstrated by producing bona fide records of implementation and more than just verbal evidence of the precautions taken by the defendants. There must be a system in place that provides documentary proof that the checks, tests, inspections and supervision necessary to avoid the commission of the offence have been regularly carried out.

For example, in the event of a food poisoning outbreak, HACCP analysis identifies that the safety of a particular food requires appropriate temperature control at one or more stages of production, storage and distribution. Therefore presenting corresponding temperature records consistent with the HACCP risk assessment will be the only practical acceptable means along with other necessary food safety measures taken to demonstrate due diligence and that all reasonable safety measures were taken to the satisfaction of the Food Enforcement Officer and a criminal court.

The legal ability for a food business operator to demonstrate due diligence can expand over a wide range of areas such as:

  • Traceability in the global supply chain
  • Auditing suppliers in a global market
  • Testing for pathogens
  • Avoiding cross-contamination
  • Labelling
  • Using technology to ensure compliance
  • Product withdrawals, recalls and protecting your reputation

A company's food safety culture must be evident and practised thoroughly by all members of the company. It must be reinforced through continuous training and reassessment of current food safety practices to capture and institutionalize the culture throughout the company’s supply chain. The need for food safety precautions does not just cover things that may have gone wrong in the past but also those which might be reasonably anticipated. Therefore it is imperative that all food business operators include food safety practice and procedures as a vital core element of day-to-day business running.

Contributed by Cliodhna McDonough

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