'Stitch in time' lesson to be learned from Salmonella scare

When one of the biggest names in food manufacturing finds itself in hot water over the interpretation of regulations - as is the case with Cadbury and its recent Salmonella scare - alarm bells undoubtedly start ringing in the ears of fellow manufacturers.

In Cadbury's case, the trouble lies with article 19 (3) of the EU General Food Law, which states that food business operators are obliged to immediately inform the competent authorities if they have reason to believe their products may be injurious to health.

But, as Andrew Masterson, head of product liability and partner in the disputes team at legal firm Pinsent Masons points out, there is a good degree of subjectivity involved when it comes to drawing the line on whether something is fit for consumption or not.

"Where the difficulties arise is within the wording 'has reason to believe', which leaves scope for argument - is that an objective or subjective test?" says Masterson. "An objective test is what the reasonable man would draw from it and is the likely test that a court would apply."

So what can manufacturers learn from the Cadbury situation? According to Masterson the answer is simple: take note of the Food Standards Agency's (FSA) 'protective stance' in interpreting the terms. "Food manufacturers should take a common sense approach, work on a 'stitch in time ' basis and work on their HACCP (hazard analysis critical control points) assessments," suggests Masterson. "They can't assume that if the FSA gets wind of it they will think the risk is acceptable and not ask for a recall. If it's a nasty eyecatching substance or microbe then the FSA will more than likely regard safety first as its watchword."

The Cadbury situation has also highlighted the problems surrounding testing methodology, and the dangers of thinking that a chosen test method will be regarded by the FSA as being conclusive, adds Masterson.

Contact Pinsent Masons on 020 7418 7000​