Richard North, 20/07/2019  
 


One of the interesting – if entirely unsurprising – outcomes of "kippergate" is that it provides another illustration of the fawning gullibility of the legacy media, and the way it is wedded to "prestige" and the authority of establishment figures.

Basically, if you present journalists with an authority figure in the right context – such as a European Commission spokesperson, or an official from the UK's Food Standards Agency – they will believe everything they are told, uncritically, without the slightest attempt to verify the supposed "facts" they are given.

Moreover, these "facts" will very quickly become the received wisdom, established as the definitive version of whatever it is they purport to hold, totally immune from correction, to be repeated down the line, whenever the issue is raised in the future. If nothing else, the legacy media has established itself as a collective which considers itself immune to error and is quite impervious to criticism or correction.

Thus, in the wake of Johnson's statement on kippers, we see the BBC's insufferably smug "reality check" pitch in to assess the claim that: "EU regulations require kipper suppliers to keep their products cool with ice pillows when they are delivered".

It is, incidentally, only Johnson who calls the familiar object of an ice pack by the rather bizarre name of "ice pillow", a term I've never heard before despite years of using these things. But how easily does the media adopt the off-piste terminology, betraying its underlying ignorance of the subject. The "naming of parts" claims yet more victims.

Anyhow, bolstered with its own fundamental ignorance of the subject, "reality check" summons up, with all the pomposity it can muster, to declare to the great unwashed that what Johnson had said, "is not true". EU regulation, it says, "covers fresh fish, not smoked fish".

This new-found reservoir of expertise on matters relating to food safety then resorts to what it says is a statement from the Food Standard Agency, conveying the view of the Agency that "food manufacturers must transport food so it is fit to eat. This might require a 'cool bag'". 

Elaborating on this, the Agency then goes on to say: The EU does have rules on temperature controls when transporting fresh fish. These are in place to ensure food is safe to consume. However, when it comes to smoked products, such as kippers, it is up to national governments to set any rules. Food safety regulations in the UK are dealt with by the Food Standards Agency".

We are then told that guidance from the Agency on "distance selling" for businesses to customers says "all foods must be delivered to consumers in a way that ensures that they do not become unsafe or unfit to eat". Thus, we learn: "Foods that need refrigerating must be kept cool while they are being transported. This may need to be packed in an insulated box with a coolant gel or in a cool bag".

In this statement, we are told the FSA said: "In the UK, smoked kippers that are sold online must be kept to an acceptable temperature throughout transit. Businesses must ensure the materials used to do so are suitable for the food and the conditions of use" 

Interestingly here, there is no reference to the statement of the Commission spokesperson who first sought to rebut Johnson's claim. For this, we must go elsewhere, piecing it together from multiple sources.

The originator was Anca Paduraru, who asserted that: "The case described by Mr Johnson falls outside the scope of EU legislation and is purely a UK national competence". Then she added: "When it comes to the specific case mentioned, while the food business operators have an obligation to meet the microbiological requirements, the safety requirements to ensure the safety of its food, the sale of products from food business operators to the final consumer is not covered by the EU legislation on food hygiene".

Completing her case, she then declared that: "There are strict [EU] rules when it comes to fresh fish, but these kinds of rules don't apply to processed fisheries products. I'm talking about temperature and the exact case he was explaining".

The essential issue here was the Commission claiming "not me guv" - this was a matter for the UK. And, while I have already rehearsed the flaws in this claim, I need to add to it.

Crucially, as anyone with even basic knowledge of EU will know, food safety is a shared competence. And, in accordance with the empty field doctrine, Member States are only allowed to legislate in non-harmonised areas where the EU has not already promulgated its own law.

As I noted yesterday, the EU "hygiene package" does allow Member States, in certain limited circumstances, to resort to what it calls "national measures", to fill gaps in the EU's law book. But, what has to be made clear is that their adoption is a highly formalised process, which – as this report and this reminds us - must be "established under national law in the Member States".

In other words, if a Member State wants to invoke national measures, it must put its proposal to the Commission, which vets it according to certain criteria. Only if approved, does the Member State get permission to frame its own law, the implementation of which is then monitored by the Commission's Food & Veterinary Office (FVO), to ensure functionality and to warn of possible conflicts with Single Market freedoms.

The point here is that, if the UK had exercised its competence – with the approval of the Commission – there would have to be a specific law in place. "Guidance", as such, cannot qualify as a national measure.

Furthermore, although the FSA frequently has difficulty telling the difference, guidelines are not "rules", and nor does the FSA "deal" with food safety regulation. The framing of law is a matter for the EU – which has first bite of the cherry – and Whitehall (Defra and Department of Health), with resultant (usually) Statutory Instruments having to be approved by parliament (if only by negative assent).

Thus, if there are national measures in place on "distance selling" (mail order) of perishable foods, there would be an identifiable legal provision to which the critics could point. Unsurprisingly, a simple search reveals no dedicated law, which means we have to resort to the Food Hygiene (England) Regulations 2013 as the general, catch-all provision.

It really is a great pity that the FSA spokesperson didn't read this. If he or she had done so, they would have happened upon Schedule 4 which sets the general requirement to keep "high risk" chilled food below 8ºC. However, as paragraph 2 states, this: "shall not apply in relation to any food which, as part of a mail order transaction, is being conveyed to the final consumer".

Instead, a requirement is substituted which states that "no person shall supply by mail order any food … at a temperature which has given rise to or is likely to give rise to a risk to health".

Effectively, what this does – as is the primary role of the 2013 regulations – is copy out EU law and give it an enforcement framework – specifically, in this case, the general temperate provisions of Regulation (EC) 852/2004. Effectively, without EU law, there would be no statutory controls on mail order foods, as the UK has not sought to implement national measures. The guidance produced by the FSA is advisory only, and has no direct legal effect.

As to whether an ice-pack is needed, this is a matter for the judgement of the producer, in conjunction with relevant enforcement agencies. In the first instance, the producer must carry out a risk assessment to determine safe transport temperatures.

However, given that the ESSA code of practice recommends 4ºC, one can see this becoming the "deemed to satisfy" level, where compliance is assumed if the food is held at or below that temperature. And to achieve this would normally require insulated packaging and one or more ice-packs.

The role of a code of practice in setting specific details is quite normal in the food sector, and many others. Producers are free to diverge from a CoP, only they then have to furnish technical evidence to support whatever temperature levels they have chosen.

But, as regards the propaganda hype, the whole of the media is at it. In addition to the BBC, we have the self-regarding Full Fact website, which sums up Johnson's claim that: "EU regulation means kipper sellers must package their kippers in ice".

It's conclusion is that, "This is incorrect", adding: "The EU does not set any requirements on the temperature at which smoked fish must be transported. The temperature requirement is a UK regulation".

In actuality, the situation is that the temperature control requirement is mandated by EU law. But neither the EU nor the UK sets out in law any specific temperatures, at which such foods must be kept if sent by mail order. Producers – on the basis of an EU-mandated risk assessment – decide what is best for their foods.

But that's not enough to stop Mark Stone, Sky News correspondent in Brussels, declaring: "EU exposes Johnson's kipper 'red tape' claim as nonsense", while the self-important Politico intones: "Brussels debunks Boris Johnson's fishy EU complaint".

Even the normally sympathetic Telegraph turns on its employee, with the headline: "Boris Johnson's claim that EU forces kippers to be packed with 'ice pillows' exposed as false". The Times, on the other hand, offers the boringly predictable (and inaccurate): "Euromyth: Boris’s kipper claim shot down".

So, we have a quite startling situation. Johnson has made an extravagant claim, albeit one which is partially correct, to the limited extent that temperature controls on mail order foods are mandated by EU law. The net effect, though, is to demonstrate that he has little idea of how the food safety regulatory system works in this country. That is worrying enough in itself, given that he wants to change it.

He is supposedly held to account by the European Commission and the FSA, neither of which seem fully to understand the system either. And the misinformation is then slurped up by the legacy media, which doesn't have the wit to do its own fact checking, but simply regurgitates what it has been told.

The ultimate irony here is that EU health commissioner Vytenis Andriukatis has accused Johnson of "fake news", rather reinforcing my view that much of the supposedly fake news we see comes from official sources.

One thing is for sure, when it comes to technical regulatory issues, the media is largely out of its depth, as are most politicians and even the regulators. That, as Pete says, is as good a reason as any why we should leave the EU. If the regulatory system is now so complex that even its creators don't understand it, it is time to rethink where we're going.






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