Food poisoning is an illness caused by eating food contaminated with bacteria, viruses or toxins, known collectively as "pathogenic micro-organisms".

Public awareness of the issue has been raised by increasing reports in the media. In 1996, for example, cold meat was contaminated with one of the most common types of food poisoning, E.Coli, at a butcher's shop in Scotland and 21 people died.

Almost 5.5 million people believe they have suffered from food poisoning, according to a report published in February 2002 by the Food Standards Agency, but the real figure is probably higher. Many people who experience symptoms do not visit their doctor and not all cases are reported or diagnosed.

Often the consumer will not detect anything wrong with contaminated food as the harmful bacteria that cause food poisoning do not necessarily affect the taste or smell of the food. Symptoms can take anything from a couple of hours to a few days before becoming apparent. These can include nausea, vomiting, abdominal pain, diarrhoea, and fever. In some extreme cases food poisoning can be fatal and the elderly, pregnant women, children, and people who are already ill may be particularly vulnerable.

The most common types of bacteria which cause food poisoning

TYPE  SOURCES  DURATION  ONSET
Salmonella

Can cause serious illness and fatalities in people at risk, such as the  elderly and children Naturally occurring in animals and transferred to meat during the slaughtering process. Also found in eggs and raw egg products, unpasteurised milk, rats, and mice. 1-8 days

 6-72 hours

Usually 12 - 36
Campylobacter

Most common cause of diarrhoea. Can cause severe pain and fever Can be found in untreated water, raw poultry, raw meat, and unpasteurised milk. 1-7 days

 1-10 days

Usually 2-5
Escherichia Coli (E.Coli) 0157

Causes serious illness and fatalities Naturally occurring in animals, undercooked meat, and unpasteurised dairy products. 2 weeks

 3-4 days

Can last from 1-14 days
Listeria

Causes serious illness, but the number of reported cases is low Occurs in cattle, sheep, silage, effluent, dairy products, and meat pastes. It may survive refrigeration. Variable

 3-70 days

 

Legal Requirements and Consequences

If workers or customers are struck with food poisoning, the caterers who supplied the food may be liable under both criminal and civil law, no matter how many people are affected.

The business, and in extreme cases its directors and officers, can be prosecuted under the Food Safety Act 1990 and associated regulations such as the Food Safety (General Food Hygiene) Regulations 1995 and the General Product Safety Regulations 1994.

Enforcement authorities prefer to take action under specific food safety legislation rather than the more general ones. Codes of Practice and Guidance Notes are also applicable even though they are not directly enforceable. The extent to which an organisation has followed codes or guidance will be relevant in defending a prosecution.

Food safety legislation is enforced by environmental health officers (EHOs) from local district or county councils. Trading Standards Officers have responsibility for consumer protection and product safety. There is a degree of liaison between these two regulators governed by the Local Authorities’ Co-ordinators of Regulatory Services (LACORS) who produce some guidance on food safety.

Some of the offences associated with food poisoning are shown below:

Rendering food injurious to health - Section 7: Food Safety Act 1990

Requires intent so is unlikely to be applicable to food poisoning cases.

In other words, a person has to deliberately add or use a substance, or subject the food to any other process or treatment with the intent that it shall be sold for human consumption.

In deciding whether the act is dangerous to health, authorities will consider the:

• probable effect the food had on the health of the person consuming it and
• probable cumulative effect of such food on the health of a person consuming it in ordinary quantities.

Penalty at Magistrates' Court: Fine not exceeding £20,000 and/or a prison term not exceeding six months.

Penalty at Crown Court: Unlimited fine and/or a prison term not exceeding two years.

Selling, offering, exposing or advertising for sale, possessing, depositing or consigning for sale food which does not comply with food safety requirements - Section 8: Food Safety Act 1990

Not complying with Section 8 means:

• rendering food injurious to health (see above)
• food is unfit for human consumption
• food is so contaminated that it is not reasonable to expect humans to consume food in such a state.

Penalty at Magistrates' Court: Fine not exceeding £20,000 and/or a prison term not exceeding six months.

Penalty at Crown Court: Unlimited fine and/or a prison term not exceeding two years.

Selling food which is not of the nature of substance or quality demanded by the purchaser -Section 14: Food Safety Act 1990

Non compliance with section 14 :

Penalty at Magistrates' Court: Fine not exceeding £20,000 and/or a prison term not exceeding six months.

Penalty at Crown Court: Unlimited fine and/or a prison term not exceeding two years.

EHOs routinely inspect premises to check compliance with food safety and food hygiene requirements. They have the power to enter premises at any time and seize suspected food. Obstructing the EHO is an offence under the Food Safety Act.

Due diligence can be used as a defence in relation to offences under the Food Safety Act 1990.

The customer or worker who has suffered from food poisoning can bring a civil claim against the caterer for negligence. The amount of compensation awarded depends on the level of injury sustained.

Roy Tozer is a Partner in the Regulatory Group of DLA Piper Rudnick Gray Cary UK LLP. roy.tozer@dlapiper.com


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