Brexit: false comparisons

10/10/2018

Latest in a long line of such is an article in Business Insider by political journalist Adam Payne , now recycled in the Independent.

Payne's thesis, as set out in his headline in Business Insider is that "insect-filled chocolates, rat hair noodles, and maggoty orange juice" are "the reality of a Brexit trade deal with Trump". His text goes on to assert that these are just some of the "horrors" that UK consumers could be "forced" to accept if post-Brexit Britain signs a wide-ranging trade deal with the USA.

In the US, he asserts, producers adhere to a "Defects Levels Handbook," which sets out the maximum number of foreign bodies like maggots, insect fragments and mould that can be in food products before they are put on the market.

For example, Payne writes, US producers are allowed to include up to 30 insect fragments in a 100 gram jar of peanut butter; as well as 11 rodent hairs in a 25 grams container of paprika; or 3 milligrams of mammalian excreta (typically rat or mouse excrement) per each pound of ginger.

The inference, of course, is that somehow US standards are inferior to those set by the munificent, caring European Union which would never allow its fragile citizens to be exposed to the "filth" so cavalierly permitted by the US Food & Drug Administration (FDA).

Before going any further, it is worth me reminding readers that I am a former environmental health officer specialising in food safety, and have had considerable experience in dealing with food contamination – both from the prosecution and defence perspective.

Earlier this year I spent three weeks (barring a few days) in Hamilton Sheriff Court, as an expert witness acting for Errington Cheese Limited in a case of alleged unfitness, where Lanark Council were seeking to condemn large quantities of cheese on what, it transpired, were entirely spurious grounds.

This was the second time in twenty years that I took on the entire food safety establishment to argue successfully that the authorities were making false assumptions in their assessments of the safety of cheeses produced by ECL. In the first instance, the case rested on the pathogenicity of Listeria monocytogenes and this recent case dealt with the implications of Shiga toxin-producing E coli in food.

Thus, not only am I up to speed on food contamination law and enforcement practice in relation to EU law, my background gives me a good insight as to how contamination (microbial and physical) is treated on this side of the pond – and rather more so than a political journalist working for a low circulation business journal.

In reality, there is actually no practical distinction in the way that the two administrations – the US and the EU - deal with food contamination. On both sides of the Atlantic it is recognised that foods naturally grown in a contaminated environment will, from time to time, carry an amount of that contamination acquired through growing, harvesting, storage and processing.

And, as the FDA says in the introduction to its Handbook, "it is economically impractical to grow, harvest, or process raw products that are totally free of non-hazardous, naturally occurring, unavoidable defects".

Payne, by the way, calls it the "Defects Levels Handbook", with defects in the plural. The exact title is "Defect Levels Handbook" – a small point, but indicative of a lack of attention to detail.

A more substantive failure is in Payne's assertion that US producers are "allowed" to include specified levels of foreign bodies in their food. But to cast the levels specified in that light is wholly misleading.

What the FDA is saying in setting levels is that these are "action levels", the limits at which FDA will regard the food product "adulterated" - subject to enforcement action under Section 402(a)(3) of the Food, Drug, and Cosmetics Act. In other words, anything above the levels specified is open to prosecution without any further consideration.

But that does not mean that the FDA is setting tolerance limits. That is not the case. Rather, if natural levels of contamination do not exceed the levels, producers are spared automatic prosecution – as long as they are taking all necessary measures to reduce the levels.

This is set out very clearly in the introduction, where the FDA states that poor manufacturing practices may result in enforcement action without regard to the action level.

In fact, this brings the US very much into line with UK practice where "due diligence" is a statutory defence to a charge of selling contaminated food. If producers can prove that they have taken all reasonable steps to avoid the contamination, they cannot be found guilty of an offence.

Here, "due diligence" is effectively good manufacturing practice (GMP) which the US authorities require, on demonstration of which no action is taken when foods are below prescribed limits. In the broader EU context, the term "proportionality" applies throughout the Union, having like effect.

What amounts to the only substantive difference between the US and the EU, therefore, is that the FDA openly sets action levels for foreign objects. That said, it is quite common for both the US and the EU to set action levels for chemical contaminants, such as pesticide residues. The difference is one of scope rather than principle.

In the absence of action levels in the EU, though, it would be open for national authorities not to proceed with a prosecution even where foods exhibited contamination levels higher than set out in the FDA Handbook.

As for whether there is tolerance of contamination in UK food, that is indeed the case. Environmental Health and Trading Standards departments throughout the country receive many thousands of complaints of contaminated food from members of the public each year. But only a small fraction end in prosecution. Before taking action, it is usual to assess whether a due diligence defence would have any chance of success.

There is also an issue here where cash-strapped local authorities may be reluctant to take on the food giants, unwilling to risk huge legal bills prosecuting companies with deep pockets. By not having published "action levels", local authorities can avoid taking action when otherwise they might be forced to proceed.

However, one must also recall that the use of action levels is being considered in terms of their effect on UK-US trade. But, in fact, these levels already apply to UK food exported to the US. it should be noted that in setting action levels for domestic food, under WTO non-discrimination rules, the US must apply the same criteria to the food which it imports.

This gives an element of predictability to those who sell food to the US. Unlike exporters to the EU, where arbitrary standards can sometimes be applied, those who trade with the US know where they stand.

These, there is a rather insidious downside. Even in the UK, we find that port health authorities in different ports apply different standards. What might be rejected at one port can re-routed to another, where it can be accepted.

Thus, while there are indeed valid concerns about trading with the US, this is not one of them. More to the point, the story is the classic example of "project fear", where concerns are misplaced.

In a way, I find the transparency of the US authorities refreshing. Theirs is a grown-up attitude to foreign bodies in food. Quite rightly, they say, it is not economically possible to produce absolutely pure food. And some would argue that it is not even a good idea to try. It leaves immune systems unchallenged, possibly giving rise to the increase in food allergies being experienced.

One can see, though, the political dimension. Payne, in his piece, cites Bill Esterson, shadow trade minister, saying: "The Tories have some very unpleasant surprises for UK dinner tables if they have their way with a fast-track trade deal with the United States", adding, "We know the Tories are keen on chlorine-washed chicken and hormone-fed beef but they surely cannot expect that the British public will be happy to swallow these other horrors".

Caroline Lucas, ex Green party leader, gets to say that this "is the gruesome reality of the US trade deal being touted by Liam Fox as one of the great benefits of leaving the EU". She adds: "Under the government's disastrous Brexit, we will finally be free to eat all the maggot-ridden food we like. No-one voted for a Brexit that waters down the safety and hygiene of our food - but that's what the government is pursuing".

Then Sam Lowe, formerly of Friends of the Earth and now a born-again trade specialist at the Centre For European Reform, predicted that the US would want the UK to move away from EU food standards and much closer to its own in any future free trade deal negotiation. "The US actively dislikes many existing EU measures", he says, "and will certainly pressurise the UK to jettison many of them in any FTA negotiations with the UK".

In short, though, if the UK were itself to adopt "action levels", and then get the EU to follow suit, it would be no bad thing. As far as Brexit horrors go, this is not one of them.