Business Advice - Our Self-help Advice Sheets

Food sampling by authorised officers

Local authorities are required to enforce the provisions of the Food Safety Act 1990 and regulations made under the Act. Food composition and labelling is controlled by this legislation, the most serious offence being to sell to the purchasers 'prejudice food' which is not of the nature, substance or quality demanded.

Most enforcement action for incorrect descriptions comes from formal samples of foodstuffs. If a sample is shown to be incorrect, there are five possible courses of action which can be taken: a verbal warning, a departmental letter of caution, a formal caution, prosecution, or civil enforcement (undertaking/injunction).

In the guide
Enforcement action
Sampling procedures
Storage of sample portions
Single samples
Further reading

Enforcement action
The majority of enforcement action for incorrect descriptions will result from taking formal samples of foodstuffs (which includes drink). Formal samples may be taken for various reasons, as outlined below:

• investigation of consumer complaints
• conducting a trade audit
• during a routine inspection

Sampling procedures
Procedures for sampling are strictly controlled by specific regulations and codes of practice. This legislation gives authorised officers the power to purchase or take food samples at all reasonable hours, in other words when the business is operating and staff are on the premises. Failure to allow an authorised officer to take a sample could lead to the commission of an obstruction offence.

Formal food samples will generally consist of either one sample split into three identical parts, or three samples taken from an available batch, depending on what is being sampled, and what is being tested for. One of these thirds of each sample will go to the following persons:

1. selected and retained by the person in charge where the sample is taken
2. submitted by the officer to a public analyst for analysis
3. stored safely as a reference sample in case of a dispute

The reason for the division of samples, as indicated, is to allow potential defendants the opportunity to have their own sample portion analysed if the results from the public analyst reveal a misdescription/compositional problem. If you have manufactured or altered the food, or applied the description tested to the food, you may be responsible for any offence. If you are only retailing food supplied to you in the same state, your supplier/the manufacturer may be the responsible person.

The sample portion kept by you is very important and should be stored safely until you receive notification of the analytical results.

The following are important actions relating to the sample you have retained:

• keep a clear record of where the sample is stored, so that it can be found easily in the future
• ensure that the best recommended storage conditions are used (see recommended storage below)
• contact your head office (if applicable) and inform them that an official sample has been taken
• if the enforcement authority informs you of a problem with the part of the sample it took, you may wish to test the sample (if you have suitable facilities) or have the sample tested by an independent party
• if the sample is sent for independent analysis, you must ensure that there are clear details given of the test required and storage conditions if required, and that the storage during transport to the laboratory is appropriate

If there is a dispute over the analysis, the final portion is sent to the laboratory of the Government Chemist which has the final say on the result.

If a sample is proved to be incorrect, five possible courses of action may be taken against the person responsible for the offence:

1. verbal warning
2. departmental letter of caution
3. simple caution notified to the Office of Fair Trading
4. prosecution
5. civil enforcement, which varies from an undertaking to comply with the law, to an injunction followed up by contempt of court proceedings if the injunction is broken

Storage of sample portions
Where you are given a portion of a sample to retain, you should keep this frozen or stored at ambient, depending on whether the product is likely to deteriorate. As a rule, fresh food such as meat and dairy products will need to be kept in the freezer. Dried products such as rice, spices, nuts and other goods stored at room temperature should continue to be stored as per the instructions on the packaging to prevent deterioration.

Occasionally you may be given specific instructions by the sampling officer, and you should follow their guidance - for example, if fresh food is being sampled to check whether it has been previously frozen.

Single samples
In some instances sampling officers will take a whole product as a single sample, for instance, pies, in order to establish the percentage content of different ingredients throughout the whole product.

Further reading
Food Law Code of Practice (England)
Food Law Code of Practice (Wales)

Please note
This leaflet is not an authoritative interpretation of the law and is intended only for guidance. Any legislation referred to, while still current, may have been amended from the form in which it was originally enacted. Please contact us for further information.

Relevant legislation
Food Safety Act 1990

Last reviewed/updated: March 2012

Telford & Wrekin Council Trading Standards, PO Box 214, Darby House, Telford Town Centre, Telford, Shropshire. TF3 4LE. Telephone: 01952 381999.   Fax: 01952 381993  Electronic Mail: tradingstandards@telford.gov.uk