Towards safer, local food environments: some thoughts on how to reframe the National Level Regulation debate by putting public health first?  

By Michael Eade[1] (Corresponding author: This email address is being protected from spambots. You need JavaScript enabled to view it.) & Rob Couch[2], 14 October 2024

In September the Food Standards Agency (FSA) published their National Level Regulation (NLR) proposals, whereby many food businesses currently regulated by local authorities would instead operate through a form of self-regulation. Initially it is expected that the largest supermarket retailers would move into NLR, with intelligence (data) led oversight by the FSA replacing local authority intervention. In time, the NLR proposals outline expansion into other sectors, though the FSA Board 2024 have since suggested any changes would be gradual. In this brief window of policy opportunity, we offer readers some thoughts on how to reframe this debate and encourage all to get involved.   

How can we better value our current local authority model?    

Does the positioning of NLR as a response to inspection backlogs and workforce shortages provide an opportunity to communicate the many strengths of our current local authority model and its vital role in the wider public health system? Central to our model is the discretion of professionals, many with vast local knowledge, regulating using a wide range of interventions in response to the risks present. Inspections will vary in length; some might gather wider intelligence from businesses and communities that can be shared; some might involve education or persuasion, others more deterrent-based approaches to secure compliance. All this activity enables EHOs to tackle food inequalities and create safer environments. Recent research[3] also shows how local authority food inspection performance has actually been improving over time.

Whilst this core health protection work is largely preventive, the abilities of our local authority model to intervene early in response to complaints and outbreaks of infectious disease also illustrates our value as local public health professionals. Our current model also contributes to health improvements in many ways; for example, the utilisation of local intelligence on food businesses to inform planning policy around schools to create healthier food environments for children and young people. Therefore could the reframing of our local authority model using a public health lens, as Dhesi 2019[4] argues, help to improve our visibility and secure the long term investment we need?

How could we improve our current local authority model?       

The past direction of regulatory policy travel (e.g. the Hampton Report, primary authority (PAS) and the Regulatory Futures Review, Enterprise Level Regulation) suggests that the move towards more centralised, self-regulatory approaches continues. However, our public health defence of the current model co-exists with some key questions about its future improvement:  

How could the FSA play a greater role in coordinating food business intelligence for local authorities?

The NLR proposes that information would be managed by the FSA (as competent authority) who could then use it to segment and filter national level entities. Basic details relating to the remaining businesses would, presumably, continue to be collected and forwarded to local authorities. Several advantages of this intelligent, central system of registration handled include a nominal annual registration fee (with automated reminder) to provide accurate trader information and tackle the problems caused by home caterers, whilst head offices could manage many premises more easily.

However, local authorities would want assurances that the system was not going to undermine the current model of regulation. One argument used is that ‘premises’ are outdated in the context of a centrally controlled national corporation. This might hold some weight when examining certain elements (e.g. training policies, food labelling) but it fails to recognise many variables that will still require local intervention. Another relates to the proposed use of artificial intelligence by the FSA that could bring data efficiencies but result in worse food safety outcomes following the gradual de-humanisation of relationships. Therefore, how can intelligence be used to improve insight and support, rather than replace, professional interactions?

Is this an opportunity to review PAS and third-party assurance schemes?

The NLR Board Paper doesn’t mention these schemes but presents an opportunity to revisit their place in future regulatory models. Forthcoming research (Eade 2024[5]) shows that overall levels of trust and confidence in PAS from EHOs is low, including in those who act as primary authorities.  Concerns include the lack of transparency of the process, that the income generated fails to cover the costs of PAS or can result in local authorities effectively being captured by the business. The use of third-party certification has also been explored by the FSA as an alternative to Enterprise Level Regulation in the catering sectors. In 2023 the CIEH’s Food Advisory Panel expressed its support for such schemes and organisations like Safe-To-Trade are ready to deliver, their governance team including well-connected senior figures. However, one review[6] of third-party certification schemes for the FSA itself identified significant limitations to them as an alternative to local regulation. These included its historical origins in independent verification, not regulation; limited scope for advice beyond basic information; lack of systems to communicate common problems across similar premises; and potential vulnerabilities in data sharing between auditors and regulators. Without further research we therefore question whether PAS or third-party assurance schemes can deliver the levels of local health protection and improvement that our public needs?

Conclusion

We now find ourselves in a context where the wholesale reform of the food safety system is possible. We know the FSA wants intelligence informed regulation and that a fee-for-registration model has been suggested but many uncertainties about resourcing, PAS and third-party assurance schemes remain. Lord Blencathra stated during the recent FSA Board meeting that he did not wish to see solutions based purely on a digital-desktop process and emphasised the need for human input by experienced EHOs on the ground. We hope this briefing outlines a way to prioritise public health and create a system that the FSA, local authorities and EHOs can support. Here is an opportunity to detail our vision for the future as EHOs, to not just engage with the NLR debate but to take a lead on it. Maybe the answer lies in an approach that truly values our current local model, whilst recognising how intelligence could support and enhance, not replace, our front-line work?

[1] Local authority EHO, researcher and Head of the Food Hygiene | Healthy & Safety | Noise & Nuisance | Environmental Health Consultants | Encentre - Environmental Health - Encentre

[2] Local authority EHO, researcher and co-founder of the UK Environmental Health Research Network | Promoting research, publication and evidence-based environmental health (wordpress.com)

[3] Eade, M. (2023) EFFL - European Food and Feed Law Review: Food Hygiene Ratings: Could This Data Influence the Inspection Model for Retail and Catering Operations in England? (lexxion.eu)

[4] Dhesi, S. (2019) Tackling Health Inequalities: Reinventing the Role of Environmental He (routledge.com)

[5] Eade, M. (forthcoming) Public-Private Partnerships and Regulatory Capture: Food Inspectors Attitudes to the Primary Authority System in England 

[6] Wright et al. (2013) Microsoft Word - GSB CR2435 3rd Party Assurance Scheme R2 V8 FCA (food.gov.uk)

A short briefing relating to the following paper is given below.

"Food Hygiene Rating Data: Could It Influence the Inspection Model for Retail and Catering Operations in England?", European Food and Feed Law Review, Vol 18 (2023), Issue 5, p282-295

Background

The Covid period (broadly speaking, the two year period commencing in March 2020) resulted in widespread disruption to the regulatory functions of local authorities; especially, those relating to the work of environmental health officers. The author of this paper had been researching food hygiene data for around ten years, prior to Covid and, as a consequence, was able to chart the impact of the Covid response.

After the Covid period it was apparent that inspection outputs had suffered significantly with officers having to "play catch-up". This led to calls for changes to be made to the food hygiene inspection regime. The Food Standards Agency, who are responsible for overseeing the work of food authorities, had already been considering potential changes ("modernisation") to the inspection model under their "Achieving Business Compliance" programme.

This paper underlines the fact that, prior to Covid, environmental health officers were consistency completing a greater number of inspections year-on-year across the board. During this time (continuing over Covid) the number of registered food premises continued to grow on an annual basis; which added to the number of inspections expected to be completed by local authorities. Rather than falling behind, prior to Covid, local authorities were gradually reducing a moderate backlog and increasing outputs each year. Following Covid, the additional backlog has also been slashed by many authorities.

Proposals have been put forward for the implementation of arm's length oversight through the use of third party certification schemes and self-regulation via the FSA's Enterprise Scheme. Some background to why these proposals are being made we can point to the Cabinet Office's Regulatory Futures Review from January 2017. This proposed a general shift towards "regulated self-assurance" or "earned recognition" and away from locally planned interventions by local authorities (the executive tier of the Food Standards Agency are appointed by, and work under the direction of, the Cabinet Office). Subsequent changes were then introduced via CODEX.

Targeting Outputs

The food hygiene rating scheme is often cited as a big success when it comes to focusing minds on improving standards. The research shows that the percentage of those considered 'Not Broadly Compliant' has decreased steadily since the introduction of the food hygiene rating scheme. It would be difficult to see how confidence in the FHRS would be maintained in a situation where the regularity of inspections reduced even further or where compliance was assessed by private sector partners employed by the regulated entities themselves.

For those making the case for self-regulation the Covid backlog provided additional weight to arguments for change. Covid resulted in the doubling of the number of unrated premises and businesses overdue inspections. Public services often see themselves as overstretched and underfunded and claims of continually reducing resources and diminishing staff paint a dismal picture; but are claims of diminishing resources accurate? Based on inspector numbers held by the FSA it does not appear so. LAEMS figures show that the average number of inspectors carrying out official interventions has remained steady; with EHOs achieving more with the same levels of resources. However, having made this point, more recent research by the author has shown that the profession is aging and, potentially, facing significant resourcing issues over the next decade.

Whilst assertions of 'lack of resources' may (sometimes) be overplayed in many professions there may still be valid arguments for change. The research demonstrates that there are areas where there are significant differences in compliance; non-compliance, for example, is much more common in urban environments and the takeaway sector. There are arguments why some authorities, particularly in urban environments with high numbers of food premises, would benefit from proportionately higher resources. Conversely, schools, hospitals and childcare facilities demonstrate consistently high levels of compliance. As well as significant differences associated with urbanity and type of premises there are also differences related to the type of cuisine in catering. These are all areas that can be used to target resources based on risk and steer inspection strategies.

Protecting Outcomes

FHRS data enables analysts to identify outliers fairly easily; local authorities where levels of compliance are unusually low or who are struggling to maintain outputs. It can also be used to identify authorities who demonstrate consistent adherence to food intervention plans and geographical areas where there is a high level of compliance. Food authorities could be given greater freedom from the national intervention plan if they are able to demonstrate consistent standards and if they are able to deliver proposed service plans intelligently; this may also assist local authorities to manage any diminishing resources. Some local authorities are now working more intelligently by utilising their own inspection data; and this is an area that warrants further exposure if diminishing resources are to be targeted more effectively.

Third party certification and primary authority schemes featured prominently in the CIEH's response to the FSA's recent ABC review consultation (with "assurance schemes" receiving a positive affirmation 11 times and Primary Authority 12 times). Self-assurance and third party auditing is a positive development that has enabled the industry, through the help of environmental health practitioners working in the private sector and professional consultancies. Whilst it is true that they serve the same base purpose of increasing standards, the roles played by auditors and local authorities have significant differences; maintaining a suitable representation in both sectors would be the ideal option.

Where to get hold of this research

Issue 5/2023 of the European Food and Feed Law Review is available here: https://effl.lexxion.eu/news/view/838

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Upcoming research:

Research has been undertaken on the primary authority scheme and will be published in due course. In the meantime, our next article will be a commentary on the emerging "competency crisis" in professional services.

Your feedback or comments:

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Environmental health officers are active in every community in Britain. Whilst part of their role is to inform and advise they are mainly involved in regulatory control. The vast majority of the time this function is carried out calmly and quietly. They help protect the public from vermin, domestic squalor, poor quality food, workplace accidents and pollution; and they also have a public health role. During Covid they were given the role of policing some of the Covid regulations; specifically those relating to businesses. The following article has been published in order to initiate discussion amongst environmental and public health professionals. Comments and contributions may be made via our Twitter site: twitter.com/encentre

MISTAKES WERE MADE

It is over three years since Boris Johnson declared that it was necessary to 'flatten the curve' and I am getting the sense that, as attitudes relax, people are more willing to reflect critically on the decisions that were made during that period ("during Covid"). I've been doing just that by considering our role as environmental health officers and environmental health practitioners.

THE RISE OF BEHAVIOURAL SCIENCE

Many years ago, one of the former policy officers at the Chartered Institute of Environmental Health (CIEH) informed me that "social marketing" was set to play a significant role in public health policy; it was written about at the time in their monthly publication Environmental Health News (EHN). We were able to see one of it's first applications play out in relation to smoking which was supported by many across our profession. Nudge units had been set up at governmental level which were tasked with the role of behavioural change. After a long series of regulatory nudges, the smoking ban (which prohibited smoking in enclosed spaces) was characterised by an ongoing national marketing campaign that shamed smokers into action. Whilst money was allocated for local enforcement purposes the success of the public relations campaign meant that the prohibition on indoor smoking was self-regulating.

Nudging was seen as a successful tool to effect change but it's use has developed further. Nudge units have metamorphosed into publicly funded departments, contracted private agencies and even military battalions; who all specialise in collecting "behavioural insights" and in the use of applied behavioural psychology to direct societal changes. SAGE (the Government's Covid policy consult group), for instance, was made up of a whole unit of psychologists called "SPI-B" (Scientific Pandemic Insights Group on Behaviours). Their behavioural scientists provided advice on the use of fear, peer pressure, coercion and emotional manipulation to achieve control during Covid.

Rapid behavioural change of any kind en-masse requires that the whole apparatus of society is pointed in the desired direction. During 2020 it was therefore felt necessary that all forms of government, media and academia provide consistent messaging. Huge amounts of money were directed towards public bodies, the media and large corporations in order to support this strategy. The volume was quickly turned down on any dissenting voices; to the extent that the degree of censorship and vilifying of those questioning official policy became extremely concerning. Anthony Fauci, the long standing Chief Medical Advisor in the U.S, famously pitched himself as the ultimate expert stating that "attacks on [him] quite frankly are attacks on science" (despite the substance of his scientific certitude changing). After a federal mask mandate was quashed by a federal court in the U.S Fauci even stated that the judgement set a "dangerous precedent" and that the decisions of the CDC [his decisions] should not be subject to challenge. Narrative control was deemed so necessary that even Nobel prize winning professors found themselves censored.

Initially, the public health response featured hand washing. Whilst this advice may have seemed like a bit of an odd strategy for tackling an airborne respiratory virus I wasn’t, at that point, unnerved; after all, in a real crises public health officials would try to reassure and avoid panic. I am old enough to remember, then Minister, John Gummer feeding his daughter a burger during the so-called "Mad Cow crisis"; and so for politicians, times of difficulty require responses that aim to protect public confidence. However, I remember that stance flipped abruptly.

Within a short period of time I became unable to distinguish between health promotion and propaganda. Sentimentality, for example, was weaponised; those who threatened to break extraordinary rules, for instance, were portrayed as monsters. You may remember when Christopher Whitty, one of the UK's ennobled government appointed executives, rather bluntly advised us not to hug elderly relatives if you wanted them to "survive to be hugged again". There was also the increased use of pejoratives as a reaction to alternative viewpoints. Journalists at EHN (the magazine of the CIEH) joined the main-stream media in referring to those who chose not to take up the offer of an injection as "Refuseniks" (and, like the Refuseniks of the 1960's, people in Britain were also being denied employment and the right to travel). The CIEH also called for the vaccination programme for children to be bolstered. They also held regular webinars where, for example, hosts voiced support employers insisting on vaccination as a requirement under general safety laws (a statutory interpretation that seemed beyond elastic) or suggesting the redeployment of those who refused to be vaccinated.

During Covid we were told of financial scandals, listened to media outrage at government ministers breaking rules and abusing powers, and read criticisms of mask mandates and overzealous lockdown measures. Whilst admitting that "mistakes were made", governments across the world have roundly declared that the vaccine roll-out was the one area of success during the Covid crisis. The jab is apparently the one inviolable aspect of the Covid period; and it appears that it is still verboten to question the effectiveness of Covid vaccines in the main-stream media. So much so that speaking about the potential for vaccine harms publicly has attracted levels of outrage that have gone beyond that witnessed during Brexit. Even those who may have been injured by the vaccines, or those who have lost loved-ones, have been maligned with the use of pejoratives after raising concerns; and, worse still, callous responses were actively encouraged by MPs and the press.

Social marketing therefore appears to have expanded into something of a different order entirely; and, unwittingly, many of my fellow colleagues have been actively involved in the psychological process of behavioural control. It raises a number of ethical questions that really shouldn't need to be asked; for example, is it ever right to use coercive control over people or to deliberately instil fear? I wonder how many psychologists or public health professionals have reviewed their own actions during Covid with respect to their professional ethical codes? A few did, of course, raise concerns publicly at the time. In some of those instances, rather than having their viewpoints respected, some actually found themselves subject to disciplinary action from their own professional bodies.

ITS FOR THE PUBLIC GOOD

Regulations imposed for public health purposes, for example for food labelling or pollution prevention, may have a limited effect on our common law rights (to work, own property, to worship etc.). As we have witnessed, mandatory interventions carried out on national scales affect the rights of the entire population; and the potential impacts can be huge. However, regardless of the gravity of the proposal, we have a moral duty to discuss the appropriateness of any proposed interventions; considering differences of opinion and questioning the basis of any proposed policy.

Contrary to popular belief, the constitutional rights of individual citizens trump any international treaty or national statutory provision (think Magna Carta); and not the other way around. However, there has been a concerted effort to move away from individual autonomy (where we are recognised as sovereign beings who make our own decisions) towards more of a collective approach, for the "greater good". Academics and supra-national bodies such as the World Health Organisation have rapidly, and relatively recently, developed this stance through the discipline of "public health ethics"; with enthusiasts justifying interventions that would have otherwise be impeded by medical ethical considerations (think Hippocratic Oath). Who gets to decide what is for the "greater good" though, and on what evidence will they base these decisions? One can easily see how these may be used to assist political or corporate motivations; after all, even the most honest actors will come with their own scientific or ethical biases. Furthermore, what if it transpired that the risk of harm was massively overestimated, that the interventions were not effective or that more harm was caused than good? If we really have moved in this direction, away from an ethical respect for individual rights, isn't this something that should concern us?

THE NEXT BIG THING

Fears over Covid may have diminished for now but some of our profession’s representatives may have spotted other opportunities on the horizon (and, indeed, have recently held discussions with the likes of Whitty). It is not surprising that professional bodies would seek to use crises to raise profiles or look to attract additional funding; after all, we do expect them to be involved in raising professional profiles and in highlighting good practice. However, I think most impartial professionals would prefer them to avoid band-wagons or be used to campaign for political or corporate agendas.

If you are an environmental health professional and think that mistakes were made during Covid, you may be aware that there was one man who could have effected influence on the decisions being made by the Government executive and the votes that were cast in Parliament; and that was Graham Brady, Chair of the 1922 Committee. In September 2022 Brady became a Vice President of the CIEH, stating that "The past 18 months have shown us that health and wellbeing are more important than ever and CIEH will play a key role". So what else has our profession got to look forward to?

The thing is with emergencies or public health issues is that there is always another threat ready to take over the limelight. Whilst there appears to be an unwavering emphasis on bio-security and genomics, the next set of behavioural controls (and perhaps even economic reforms) in the international arena are being brought about to tackle to the "climate change agenda". National policies often follow international agendas set through cooperation between big corporate entities, banks and a number of policy-setting organisations, such as the United Nations. Much of the emphasis currently relates to public and environmental health issues; including the, globally adopted, 2030 Sustainable development Goals. These are rapidly taken up at local level through regulation or local policy frameworks initiated by (often) well meaning local politicians and local government staff.

PAUSE AND REFLECT

It is human nature to revise our views on past events (or reimagine the roles we played at the time); especially where our actions may not fall in line with perceived wisdom. We are witnessing a fair amount of back-peddling currently quoting the phrase "as the science changed" (it didn't). Have you considered that "the current thinking" (and, subsequently, our own understanding) simply changes in line with the narrative that is provided to us? The information we absorb every day is saturated with psychological nudges (think of it as advertising); much of it emotionally driven. We certainly appear to be extremely susceptible to some very powerful tools that are used to steer the public mood and professional opinions. Much of it is backed by a wealth of digital insight.

One aspect of the digital transformation is that it can dehumanise; over reliance on models or intelligence can lead to bureaucratic decision making and a disregard for individual rights and freedoms. Digital advancements provide the perfect basis for technocratic control across almost every area of our work. Heck, real EHOs may not even be needed the next time a Scotch Egg needs to be regulated as a "substantial meal"; but let us assume that we will (at least for now). Traditionally, our roles are often tempered by phrases such as "reasonably practicable" or "balance of interests"; and EHOs have always been recognised and respected for their pragmatism. More recently though, the lexicon has been changing with phrases such as "net zero" or "no-one is safe until everybody is safe". The current mode is alarmist; it demands action immediately and affords no space for alternative views. It can be difficult to resist that sort of pressure and the omnipresent influences that contribute to it.

So, "mistakes were made" during Covid and, almost all of them, justified under the guise of public health. Being so deeply involved in this momentous event you would expect that the profession would undertake a review of their role and seek to learn lessons. Seems not. However, as opinions are so often polarised, is an honest and unbiased reflection even possible?