“Best of British” or a cooked-up label?

In an industry where a product’s source is instrumental in its saleability, a label can go a long way. However, misrepresenting the origin of food products is a fraudulent activity and a criminal offence. This article considers a recent example of food fraud and the potential legal consequences.

When you think of ‘fraud’, you may think of forging documents, credit card scamming, or identity theft. What you may not think of is food fraud. However, it is this particular crime that the UK’s National Food Crime Unit (“NFCU”) is dedicated to investigating.

The current headline news story in the food industry is the mislabelling of meat products from South America and Europe as “British”. It was revealed just days ago that north-west retailer Booths is linked to such allegations.

The NFCU had not named Booths, but the company itself tweeted on 10 March 2023 that it has been “… working closely with the [NFCU] since being made aware of potential food fraud issues in 2021”. It also asserted that “Booths are categorically NOT under investigation by the NFCU”.

Booths’ involvement in the investigation is apparently limited to a selection of cooked meat products, which were removed from sale and Booths ceased trading with the supplier “…with immediate effect” following being notified of the potential issues.

Booths has asserted that its “… fresh meat, poultry and game products are entirely unaffected by this investigation” and that, with the exception of the products it removed, “… Booths is absolutely confident in its British only meat commitment”. Booths also thought it important to highlight that this potentially serious food fraud incident is not a food safety issue.

The Legal Position

It is not surprising that Booths issued the strong statement that it did, given the potential consequences of food fraud. This is an example of origin fraud, and is an offence of fraud by false representation under section 2 of the Fraud Act 2006.

The legal test for this offence is a person “dishonestly [making] a false representation, and [intending] by making the representation to make a gain for himself or another, or to cause loss to another or to expose another to a risk of loss.”

A company convicted of fraud by false representation will be liable for a fine calculated in relation to the level of harm suffered and the level of involvement the company had in the offence (culpability). ‘Harm’ is determined with reference to the amount of gain or loss incurred as a result of the fraud and, depending on culpability, the fine will be a multiplier of 20 – 400% of the harm. This could have significant financial consequences for a business, particularly small-medium companies.

Takeaways

If your business is involved in the supply or sale of food products, ensure that you are able to trace the products one step forwards and one step backwards in the supply chain. Animal products and sprouted seeds are subject to their own specific traceability requirements, and all food entering the market must be labelled to facilitate its traceability.

If your business identifies potential food fraud in its supply chain, get in touch with Birketts’ Regulatory & Corporate Defence Team.