Nobody’s perfect, but you can try very hard. The British legal defence of due diligence recognises when you’ve done what you should. It needs to be understood especially as it could be set for wider adoption, reports Chris Lyddon.


“The big problem is that when you get abroad, people don’t know much about it,” Adam Chappell, certification manager for the Third Party Audit specialists EFSIS (European Food Safety Inspection Service) told just-food.com. Companies exporting to Britain needed to know what they faced if there were any legal problems.


Britain put the due diligence defence in place after national outcries over listeria in cheese, salmonella in eggs and botulism in yoghurt. The defence of due diligence allows someone who is facing legal action to defend themselves by showing that they have taken all reasonable precautions and exercised due diligence. The defence was set up by section 21 of the Food Safety Act 1990.


Adam Chappell felt the European Food Safety Agency, headed by executive director Geoffrey Podger, former chief executive of the UK’s Food Standards Agency, could well decide to establish a Europe wide due diligence defence


Call in the experts


What many people in the UK food industry have done is look for outside help to make sure the due diligence defence is there if they need it. One company offering just that service is RHM Technology. “Basically what we can do is help people carry out HACCP (Hazard Analysis and Critical Control Point) and risk assessment and make sure they comply with due diligence requirements,” David Scott, business sales manager for Technology at RHM Technology told just-food.com.


One thing he pointed out is that if you have got all the right procedures in place, then you’re much less likely to have a problem. “If you do put in HACCP and other procedures it’s very unlikely that anything will go wrong” he said.


The due diligence defence was the law’s way of recognising that food businesses cannot achieve perfection. “It all refers back to whether or not you can be perfect,” he said. “The law accepts that perfection is something that you can strive for and never achieve, although it is unlawful to sell infected food.”


But due diligence had to be proved and the burden of proof in court was on the defendant. To some extent what a company might do would depend on how much it could afford. “It’s all balanced, on the basis of what you can show in court. You never quite know how the court is going to react” he said


It also depended on the company’s track record. “If you’ve just set yourself up and you have a problem you’re likely to be under the microscope” he said.


Getting outside help was one way, but you had to use it properly. “If you can say you’ve called the experts in the court’s going to look at you more sympathetically,” he said. “But you’ve got to prove that you’ve followed their recommendations. You have to have the paperwork in place.”


Depends on the judge


EFSIS technical director David Rose also felt that it depended on the court’s attitude “The steps to using the defence are not defined” he told just-food.com. “They are always at the behest of the judge. You have to be seen to have done everything you could possibly have predicted.”


EFSIS provides third party audit against standards which include the British Retail Consortium’s Standard and the International Food Standard, which was originated by the German food retailers, as well as ISO 9001. But David Rose advised strongly against relying too much on the work of companies like his. “Third party audit is just one piece of the jigsaw,” he said.


He outlined a series of things which have to be in place to make the defence work. “You need to be able to demonstrate and define a safe system of manufacturing. Your processes and raw materials need to have established controls and HACCP to make sure hazards are reduced to acceptable levels,” he said As well as HACCP that could include consideration of legal requirements and codes of practice, as well as food safety standards and customer requirements.


“You have to have records and you have to have staff who are trained and competent,” he said. You have to be able to demonstrate to other people that a system of control exists. This is one point where a third party certificated management scheme could help. “Your management has to make sure the right processes are in place,” he said. “If you put all that together you have a due diligence defence. It’s not just a case of having an EFSIS audit.”


But it could certainly help. “The EFSIS or BRC audit essentially ticks off most of these boxes,” he said. Many of EFSIS’s customers do have that in mind when they take the service. The desire of food companies to be in a position to establish a due diligence defence is one reason for the growth of assurance throughout the food chain in the UK.


But a third party audit can only do so much. “The EFSIS audit involves a day on site and there’s a lot to check,” he said. “The depth is not necessarily enough to throw up all the issues. Auditing is only ever a sampling exercise.”


Like the British courts the US authorities would also tend to base their attitude on past performance, Matt Baun, spokesman for the USDA’s Food Safety and Inspection Service, told just-food.com. “We have an act that says it is illegal to present for sale, transport or have in stock any meat or poultry that contains pathogens or is mislabelled.”


“If a company has a product with e-coli, they are responsible for that product,” he said. “We would look at their food safety plans. If it’s a one time case we would look at their suppliers.” But the US authorities were likely to get much less sympathetic if the company they were dealing with had proved problematic in the past. “If they have a history of pathogens we would require them to reassess their safety plans and we might require them to stop trading until those plans have been reassessed by USDA.”