Food Hygiene Rating (Wales) Bill Written Submission to the Welsh Government 07 March 2012
Food Hygiene Rating (Wales) Bill A submission from the Federation of Small Businesses in Wales The Federation of Small Businesses in Wales 1. Introduction The Federation of Small Businesses in Wales is grateful for the opportunity to submit a response to this inquiry into the Food Hygiene Rating (Wales) Bill. FSB Wales is the authoritative voice of small businesses in Wales with 10,000 members, a Welsh Policy Unit, two regional committees and twelve branch committees. FSB Wales is in constant contact with small businesses at grassroots level creating an ideal position to comment on town centre regeneration that has such a large effect on small businesses in Wales. It is estimated that the FSB has within its membership 1,000 business that would be directly affected by the proposed legislation. This submission takes a broad approach to the terms of reference and examines the issues at hand with examples from a broad section of FSB membership from across Wales. 2. Executive Summary As an overall point of principle, the FSB believe all legislation should seek to enable best practice amongst the business community whilst minimising red tape. As a matter of principle, the FSB believe that the Food Standards Agency should assist business in pursuing best practice. The ultimate aim of this Bill should be to ensure that as many businesses in Wales as possible have as high a score as possible. This would ensure good standards for operators and consumers alike and the Food Standards Agency should be proactive in its dealings with small businesses in the implementation of any future legislation. The FSB believe that the new system should extend the current voluntary scheme in order to make the transition as seamless as possible. We see no reason why current scores cannot be carried over to the new scheme from a public health or regulatory perspective. We believe that all food businesses should be included in the mandatory scheme, with absolute clarity over the definition of a food operator [clearly scheduled in the Bill] as it is unclear what establishments may be exempt e.g. those selling packaged foods. The FSB have concerns that extending the scheme to business-to-business operators would introduce undue costs to the consumer and unnecessarily increase red tape. Our surveyed members largely recognise that the ultimate responsibility for food hygiene lies at the final point of sale. In general, the display of Food Hygiene ratings should be as prominent as possible both within and on the frontage of a business where this is practicable. The display of a rating should be enforced once the scheme is mandatory and as a result of this, a sticker noting that an operator had not been 2
rated may be useful during the period after the scheme is made mandatory. The FSB also sees no reason why summary inspection reports should not be published, although we would wish to see operators have a fair opportunity to respond to the report before publication. Our membership does not object to the principle of a charge for the cost of undertaking a rerating. However, they would welcome a mechanism within the legislation whereby an operator could obtain a rerating free of charge should they be able to prove an inspection was flawed. The level of proposed fine, we believe, is reasonable and we have no general objection to the use of Fixed Penalty Notices, especially for the failure to display a rating sticker. However we believe the Government should explore the option of tapering fines against a business s overall size as a 1000 fine could disproportionately affect the viability of a small business. 3. Methods Statement The research undertaken to inform this submission was based on in-depth qualitative interviews with ten individual members. The interviews took place between mid February and early March 2012 and were followed up by some submissions made via email. Where opinions have been significantly divided this has been noted, and the concerns of members have been raised, including those who may disagree with the majority of our membership. FSB Wales were assisted in the research exercise by Positif Politics but the opinions and viewpoints based upon this research are those solely of the Federation of Small Businesses. 4. Consultation Questions 1. Do you have any comments on the first clause in the Bill (Welsh Food Hygiene Rating Scheme)? No. 2. Do you agree that assessments of the food hygiene standards of an establishment carried out prior to the commencement of this Act can be used as the basis of a rating under the mandatory scheme? Yes. The FSB agrees that the current ratings should be carried over until such a time as a business is due for re-rating. However, a member in South Wales critiqued certain aspects of the rating system as it exists at present saying that it focused on medium rated operators rather than improving those with poor hygiene. The member felt that the internet assessments often gave significant weight to paper work and ticking boxes rather than the hygiene standards of an operator. The member also noted that current standards relied heavily on trainers and evaluators being diligent and often they could not be. Members also expressed concern that the rating was only reflective of a fixed point, and not of the overall day to day quality of an establishment. 3
One member said that the current system was inadequate and that the system should be based on a pass/fail criteria; that is, premises that remain open reach an adequate level of food hygiene standards. Do you agree that all food businesses supplying food directly to consumers should be included in the scope of the FHRS? Yes. Members of the FSB were keen to see all business included if the scheme were to become mandatory. One member noted that those operating out of non-business premises should also be made to comply with the scheme, this member felt that such operations were often escaping the regulatory burden placed on other businesses. An operator of a café in North Wales also felt that premises such as Staff Canteens and other premises which sell food but are not necessarily open to the public should be made to comply with the legislation, they were not sure that the current proposals were clear as to whether such premises would be covered. Are there any food business establishments that provide food directly to consumers that you think should be exempt from the FHRS? Yes. One of our members, who operates a public house in North Wales felt that those businesses selling prepackaged food that has not been prepared or heated on the premises should be exempt from the scheme and we feel this is a fair reflection of the FSB in Wales position. We feel it would be an unnecessary and overly burdensome step to require premises such as newsagents and off licenses to be subject to the scheme. Should those businesses involved in food business-to-business trade be included in the scope of the FHRS? No. Most of our members agreed that the ultimate responsibility for food hygiene rests on the business selling food to the consumer. Members were mainly concerned that extending the scheme to manufacturers, wholesalers and transporters would increase costs for operators and ultimately the consumer. There were a minority of respondents who felt the only business that should be exempt from the scheme were wholesalers. A member in North Wales said that manufacturers of food should be inspected and rated, with their re inspection being less frequent than that for consumer facing businesses. Do you have any comments on the appeals process including the timescales? Please provide details of how the appeals process could be strengthened. Comments: Our consulted members are generally comfortable with the proposed timescales. However a member in North Wales noted that for seasonal businesses such as the one they operate, the 21 day timescale could be a significant amount of their trading time and that the appeals process should seek to move more quickly for such operators. Do you think summary inspection reports (in addition to the Food Hygiene Rating Scores) should be routinely published on an FSA s website or otherwise made available? Yes, the FSB and its members believe that the summary inspection could be valuable to the public. However the members consulted have concerns that the reports would seek to outline specific 4
grievances and steps that can be taken to remedy them. We do not feel it would be fair for an operator who has otherwise achieved a good score to be singled out by a small number of failings in their summary inspection report a situation we can easily envisage. We believe that the publication of the summary inspection reports should be delayed until an operator has had sufficient time to respond to the report or seek a rerating. One member said: The summary inspection reports will likely contain information that is only of use or relevance to the operator of the business and professionals in Food Hygiene. Why would the public want or need such detailed information? The score should be robust enough that the public have confidence in it. Would you make use of this additional information if made available to decide where to eat out or purchase food? We do not have a view on this question as a membership organization. Do you think the operator should be required to display the FHRS sticker at their establishment in a place where consumers can see it easily? Yes, our consulted members emphasised that most business who achieved good ratings would do so anyway ensuring that businesses with bad scores complied with this arrangement would be the difficult part. Do you have any suggestions as to where this should be. We believe that the sticker should be displayed prominently on the frontage of a business premises and again near pay points inside a premises, where these exist. Are the requirements in relation to the duty to remove out of date or invalid food hygiene rating stickers from display practical and reasonable? Yes. Please provide reasons for your answer Our members could not see that it would be an issue to remove such a sticker, though members did comment that the Food Authority should always seek to ensure a premises is re-rated before the expiry of sticker and certificate. Do you think that the list of offences is reasonable? Yes. Are there any other offences that you think should be provided for? The membership did not highlight any further offences that should be provided for. Should all operators be required to display the food hygiene rating certificate at the premises in addition to the food hygiene rating sticker? Yes. We think the certificate should be displayed prominently inside the premises. Do you think the publication of the right of reply gives sufficient voice to the operator? 5
Yes. Most of our members agree that this is sufficient. However there are concerns that this will not allow operators to respond to their score at the point of sale. Most operators feel that the majority of their custom comes from passing footfall, not from customers who have researched their business on the internet beforehand. Do you agree that operators that have actively taken steps to improve their food hygiene rating should be allowed to apply for a re-rating, rather than have to wait until their next planned inspection? Yes. The vast majority of our interviewed members said that if the scheme should go ahead then business should be able to seek a rerating. Do you agree that food authorities should be required to charge operators the reasonable cost of undertaking a re-rating inspection? Yes. However, the majority of our interviewed members felt that if operators were able to prove that a bad rating was the fault of the inspector at the time then they should be exempt from the charge. Should any food establishments be excluded from the charge for re-rating inspections? No. All premises should be treated equally with respect to this requirement. See above. Do you have any comments on the duties of the FSA? Are there any omissions? If so, please provide details. As a matter of principle, the FSB Wales believe that the FSA should assist business in pursuing the best standard of food hygiene and enact sanctions on those businesses that do not comply with the letter and spirit of the law and that the Foods Standards Agency should seek to do this with minimal red tape. Do you think it is useful for a sticker to be displayed which informs customers that a food hygiene rating has not yet been issued to the food business establishment? Our consulted Members were split on this question. Many felt that it would be useful for an establishment to be able to display such a sticker. However, roughly an equal number said that such a sticker was redundant and the absence of a sticker would indicate a lack of rating. However, if the scheme is to be mandatory and a high level of enforcement of the display of a rating sticker becomes necessary, then the absence of a sticker would likely indicate a failure to display a rating. As such, a pending investigation sticker would be of use to operators to highlight their compliance with the legislation. Is a level 3 fine (currently 1000) in relation to offences committed under the legislation appropriate? Most members consulted agreed that a fine was appropriate. However some members expressed the view that the fine should in some way relate to the turnover of a business. Many noted that for business with large turnover, 1000 may not act as a deterrent. On the other hand it could ruin a small business that had inadvertently committed an offence. One member said: 6
A fine is a good means of enforcing compliance, but it should not be used while appeals are ongoing the size of a fine should always relate to the size of a business. Another member said: Fines should not be so large as to render a business unviable, unless the operator is a repeat offender. Do you think food authorities should have the ability to issue Fixed Penalty Notices? One consultee from North Wales stated that food authorities should not have the ability to issue FPNs as there may be extenuating circumstances and that a FPN issued on the day of an inspection may not be helpful, in encouraging general compliance. However, the majority of the members consulted had no view on this issue. Do you consider the discounted penalty ( 150) for early payment (within 14 days) of a Fixed Penalty Notice provides an appropriate discount for early payment? This is sufficient to encourage early payment of any penalty. Do you agree with the preferred option in the Regulatory Impact Assessment (option 4 Introduce the mandatory scheme with cost recovery for food hygiene re-rating inspections)? As stated previously, FSB members in Wales generally agree that an operator should cover the cost of re-rating and the option of re-rating should be available to them. However, if there is any negligence in the rating process and this can be proven, the operator should not be punished by having to pay for a re-rating. Do you agree with the estimated costs/benefits regarding the implementation of this Bill? The membership did not express a view on this question. Do you have any comments on the expected costs to food businesses and food authorities? FSB members on the whole felt that it was important that in a time of economic difficulty, any proposed measures should not adversely affect their interests in a way that could reduce the viability of food operators in Wales. It is important that any regulatory impact on small businesses is properly measured, assessed and essentially minimised to ensure that small businesses that are affected are able to continue to grow and operate efficiently and are not subjected to overbearing regulatory burdens. 7
Contact: Federation of Small Businesses WALES OFFICE 1 Cleeve House Lambourne Crescent Llanishen CARDIFF CF14 5GP Telephone: 029 2074 7406 Email: policy.wales@fsb.org.uk Web: www.fsb.org.uk/wales The Federation of Small Businesses The FSB is non-profit making and non-party political. The Federation of Small Businesses is the UK's largest campaigning pressure group promoting and protecting the interests of the selfemployed and owners of small firms. Formed in 1974, it now has 200,000 members across 33 regions and 194 branches. Lobbying Our lobbying arm - led by the Westminster Press and Parliamentary office - applies pressure on MPs, Government and Whitehall and puts the FSB viewpoint over to the media. The FSB also has Press and Parliamentary Offices in Glasgow, Cardiff and Belfast to lobby the devolved assemblies. Development Managers work alongside members in our regions to further FSB influence at a regional level. Member Benefits In addition, Member Services is committed to delivering a wide range of high quality, good value business services to members of the FSB. These services will be subject to continuing review and will represent a positive enhancement to the benefit of membership of the Leading Business Organisation in the UK. Vision A community that recognises, values and adequately rewards the endeavours of those who are self employed and small business owners within the UK The Federation of Small Businesses is the trading name of the National Federation of Self Employed and Small Businesses Limited. Our registered office is Sir Frank Whittle Way, Blackpool Business Park, Blackpool, Lancashire, FY4 2FE. Our company number is 1263540 and our Data Protection Act registration number is Z7356876. We are a non-profit making organisation and we have registered with the Information Commissioner on a voluntary basis. Associate Companies We have two associated companies, FSB (Member Services) Limited (company number 02875304 and Data Protection Act registration number Z7356601) and NFSE Sales Limited (company number 01222258 and Data Protection Act registration number Z7315310). 8