Gavel and block

Secretary of state backs London borough to take legal action against supermarket

Rt Hon Kwasi Kwarteng MP overturns primary authority’s refusal to allow council’s enforcement action against supermarket store with “significant pest problem”.
27 October 2021 , By Katie Coyne

A borough in North-East London has secured an application from the secretary of state for Business, Energy and Industrial Strategy (BEIS) to pursue legal action against a London supermarket outlet after failure to implement established pest control policies and procedures locally.

In April 2020, a member of the public bought a chocolate Easter egg from a supermarket chain’s North East London store, and discovered mouse droppings and fur in the packaging. The customer returned the egg to the store and reported the incident to the local authority, which sent EH officers to inspect the premises.

They found an active mouse infestation and a lack of cleanliness and served a Hygiene Emergency Prohibition Notice. Subsequently, at the magistrates’ court, the judge signed a declaration that the health risk condition was fulfilled.

The council notified the primary authority (PA) that it planned enforcement action against the supermarket but the PA refused, arguing that the business had taken all reasonable precautions and exercised due diligence as it had adequate procedures in place to control pests and keep its stores clean.

The local authority argued that the policies and procedures were not being implemented at a local level and that just having the procedure in place was not enough to comply with the law.

The issue was escalated to the secretary of state, who revoked the PA decision in September 2021, allowing enforcement action by the council to proceed.

“All professionals working in the area of food safety should not lose sight of the fact that their overriding objective has to be to safeguard the public health of the customers.”

A spokesperson for the council said “We are very pleased that common sense has prevailed, with the secretary-of-state rightly finding for us in this case.

“All professionals working in the area of food safety should not lose sight of the fact that their overriding objective has to be to safeguard the public health of the customers and to give confidence in the regulatory regime.

“It is very unfortunate that in this case the EHOs at different authorities were pitted against each other.

“However, the council is hopeful that, by sharing this experience, there will be greater clarity in the application of the correct legal test in such matters and that those authorities exercising primary authority powers will not overstep the mark in seeking to prevent formal action against businesses who have failed to maintain acceptable standards.”

The secretary of state consulted the Food Standards Agency (FSA), and the council shared their arguments: “Despite [business name’s] established pest control policies and procedures (which the primary authority considers satisfactory when implemented correctly), the significant pest problem found at this store suggests an issue with local implementation of these procedures. Such an infestation represents an imminent risk to public health.

“The FSA is of the view that the proposed enforcement action is not inconsistent with the advice given, as the PAA makes clear that it only demonstrates compliance with Regulation (EC) 852/2004 Annex II Chapter 9(4) where it has been properly implemented.

“The FSA also found, in relation to the evidenced poor cleaning, that ‘the proposed enforcement action is not inconsistent with advice or guidance previously given by the primary authority, as no advice has been provided on this matter’.”

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