Rating Regulators Food Standards Agency Steve Brooker and Anne Taylor About Consumer Focus Consumer Focus champions the needs of consumers across England, Wales, Scotland and, for postal services, Northern Ireland. We operate across the whole of the economy, persuading businesses and public services to put consumers at the heart of what they do. We take action where markets fail consumers and ensure a fair deal for all – especially vulnerable and disadvantaged people. We want to see consumers central to business and government decision making, and we’ll be working in Europe too, to make sure consumers’ needs are heard in Brussels. We don’t just draw attention to problems – we use a strong evidence base and work with a range of organisations to champion creative solutions that improve consumers’ lives. Contents Introduction 2 Summary of findings 4 Legal framework 8 Culture and accountability 12 State of readiness 22 State of action 28 Impact and learning 36 Appendix: Methodology 40 References 42 Introduction 1.1 This report on the Food Standards Agency 1.4 This report should be read alongside our (FSA) measures performance against a series compendium report, which draws together of indicators of a consumer-focused regulator the common themes from the study. We developed by Consumer Focus. Our findings hope the study will provide useful feedback are based on an analysis of evidence for the regulators, provide a diagnostic tool collected over the course of 2008 from desk for others to use, facilitate the spreading research, stakeholder opinion, a consumer of good practice and identify the likely survey and interviews with senior staff at the strengths and weaknesses of regulators regulators. A note on our methodology across the economy, in order to inform is in an Appendix. future policy and practice. 1.2 The FSA is one of six regulators that we 1.5 We would like to place on record our have assessed in our Rating Regulators thanks to staff at the FSA who gave their project. Each of the regulators we looked time generously and were open and at was set up in law to further the interests constructive during the review process. of consumers in markets where people We are also grateful to stakeholders depend on essential goods and services for the useful comments they provided – food, money, energy, water, post and in discussion groups and interviews. communication – to go about their daily lives. These regulators make a vital contribution to consumer welfare, so it is important to know if they providing the benefits they were set up for. 1.3 Efforts so far to measure progress against the better regulation agenda have mostly related to calculating savings to business that have resulted from reducing the costs of regulation. This project takes a different look at the better regulation agenda, by examining the work of regulators through a consumer lens. While regulators may have other non-consumer objectives, the ultimate purpose of regulation is to benefit end users. 2 Data file: Food Standards Agency Summary of strategic targets Description Food safety The Food Standards Agency is a non- • reducing foodborne disease further ministerial government department set up • delivering proportionate BSE and to protect the public’s health and consumer TSE controls based on the latest interests in relation to food across the UK. scientific knowledge It deals with all aspects of food safety and standards throughout the food chain, • building and maintaining the trust working with: of stakeholders in our handling of food safety issues • businesses across all industry fields to help them keep consumers safe Eating for health • local authorities and other food law • enabling consumers to choose enforcement agencies to help them take a healthier diet and helping to reduce proportionate, timely and resolute action diet-related diseases • consumers to provide reliable and up Choice to date information so that they can make healthy choices about food • enabling consumers to make informed choices Legislation • to protect consumers from food fraud Established by the Food Standards Act 1999 and illegal practices and became operational in April 2000 How we will deliver Budget 2008/09 • improving consumer protection £140.4m (includes Meat Hygiene Service) by improving compliance Location London, Aberdeen, Cardiff, Belfast Vision Safe food and healthy eating for all 3 2 Summary of findings Overall assessment 2.1 Our analysis shows the Food Standards Agency has a strong consumer-focused culture, operates transparently, works effectively in a devolved setting and implements good practice evaluation techniques. Areas of recent improvement include a broader consumer engagement programme and a regulatory style which empowers consumers to achieve change. 2.2 Whilst we did not find any areas of significant weakness, we would encourage the Agency to give more visibility to its work with consumers who are vulnerable and to engage more actively with public policy issues, such as GM and nanotechnology, which have important implications for consumers. The Agency is implementing major reforms to its relationships with local authorities; the success of this initiative will be crucial to its ability to achieve improved levels of compliance. 4 Legal framework 2.3 The FSA has a clear mandate to protect the The FSA also exhibits best practice in relation interests of consumers across the spectrum to working in a devolved setting, operating of food issues. A number of features of the with a structure and culture that allows it legal framework give the Agency a helpful to capture and respond to the possible steer in terms of working methods. These differences in the needs of consumers include requirements in relation to Board across the nations. membership, devolution, openness and consultation. We would have preferred the 2.5 Stakeholders suggested that the Agency statutes to include a more explicit duty with is very consumer-focused as a whole, but respect to vulnerability, reflecting the specific there is some variation between departments. health, religious and cultural needs of some The Consumer Branch has the right functions consumers. Further, while the Agency has and location within the organisational a comprehensive set of powers in relation structure to spread understanding of the to local authorities it has few powers to consumer interest throughout the FSA. address consumer detriment not directly The focus of its activities appears to relate related to food safety. This means the Agency principally to consumer engagement and must rely on consumer empowerment and intelligence gathering, with less input into industry self-regulation; these tools might translating this information into policy design be insufficient on their own to achieve and implementation. This structure appears change in some circumstances. to limit the Agency’s ability to assess the consumer interest in a consistent fashion across all its work. We are encouraged Culture and accountability that the Agency is actively considering how 2.4 The FSA has a strong consumer-focused to improve the linkages between consumer culture, to the extent that some observers engagement and policy development – unfairly in our view – have claimed that following the report of the Advisory the Agency has become a ‘champion’ Committee on Consumer Engagement. rather than a ‘protector’ of the consumer interest. We concur with stakeholders that the circumstances in which the FSA was set up, and the imbalance of power between consumers and producers, mean it is important for the Agency to be seen to be ‘on the side’ of consumers. This historical backdrop also makes it especially important for the FSA to operate transparently, so we were pleased to find that the Agency is a model regulator in this regard. Similarly, it is encouraging to find evidence that the FSA works hard to explain to the public the science behind food and that it appears to get risk communication right most of the time. 5 State of readiness 2.6 Stakeholders commented positively on 2.8 The FSA has at times been reluctant to the FSA’s engagement with them, including engage actively on some issues, such the opportunity to influence at the highest as GM and nanotechnology, which have levels of the organisation through the chief important implications for consumers. executive’s forum and being involved early Its engagement on other controversial on in the policy-making process. Interestingly, matters, such as cloned animals and the stakeholders preferred this ongoing health benefits of organic foods, show how engagement approach to the previous it can add value. We encourage the Agency, committee-based model. The FSA has working in partnership with Government, created a new team to improve its to facilitate public debate on these sorts stakeholder engagement approach further. of issues. Stakeholders also commented that the Agency has been slow to embrace 2.7 An independent review by the Advisory issues related to the sustainable consumption Committee on Consumer Engagement, implications of food choices, although there chaired by Philip Cullum, Deputy Chief are signs that this is beginning to change. Executive of Consumer Focus, found good examples of consumer engagement by the Agency, but concluded that engagement is not yet a fundamental part of how the Agency operates, with the major part of direct contact with consumers being handled by the Consumer Branch rather than the relevant content experts. Across the organisation, it observed a patchy knowledge and application of engagement approaches. The creation of an the independent review team – the Advisory Committee on Consumer Engagement – is innovative of itself. We were also encouraged that the Board has taken an ongoing interest in the FSA’s consumer engagement activity, which sends a strong signal about the value of this work. 6 State of action 2.9 The FSA is increasingly seeking to empower 2.11 Food regulations are largely enforced by local consumers in order to achieve its objectives. authority regulatory services. Some consumer It has made a substantial investment in stakeholders view enforcement as a weak consumer education initiatives aimed at both point in the regulatory regime, but this is children and adults, which it delivers through largely due to insufficient resources which an often imaginative mix of communication are outside of the Agency’s control. However, channels. The Agency has also successfully there has also been friction between the FSA harnessed consumer power – for example, and local authorities in the past. The FSA through traffic light labelling and the Scores has launched a major initiative to reform the on the Doors scheme – to provide an processes that underpin its relationship with incentive for food businesses to change their local authorities. It is too early to tell if this behaviour in ways that are designed to will succeed in addressing these issues. achieve improved public health outcomes. The FSA has helped to achieve change by Impact and learning encouraging industry self-regulation, although 2.12 The FSA has adopted an outcome-focused some stakeholders consider that the Agency language when describing its activities. can be hesitant to call for mandatory We found evidence of good practice in approaches when necessary. Consumer relation to evaluation, both at project and Focus recognise that there are limitations in organisational levels. The World Class the powers currently available to the Agency. Regulator initiative – a self-assessment 2.10 The FSA has re-defined its approach of its performance across the regulatory towards defining vulnerability, which is aligned chain – is particularly innovative. with the approach used by Consumer Focus. We were pleased to find that the Agency’s consumer engagement strategy has a strand on ‘disadvantaged and vulnerable consumers’, which has led to a number of interesting research projects, often undertaken in partnership with civil society organisations. While we are impressed by this work, it would benefit from higher visibility externally. Further, we encountered a feeling among stakeholders that the Agency’s decisions do not always take sufficient account of the needs of consumers who are vulnerable. 7 3 Legal framework 3.1 What we were looking for • statutory objectives and duties enable the regulator to adequately promote the interests of all consumers • the right tools for the job • structures are sensitive to devolved-working • responsibilities between different actors are clearly defined, without gaps or overlaps 3.2 What we found • the FSA has a clear statutory mandate to protect consumers • the statutes would ideally contain a more prominent duty in relation to vulnerable consumers, reflecting the specific health, cultural and religious needs of sections of the public in relation to food matters • duties in the legal framework – in relation to Board membership, devolution, openness and consultation – facilitate consumer-focused regulation • powers with respect to the Agency’s relationship with local authorities will inevitably cause tensions from time to time, but these provide a useful backstop to deal with occasional performance issues • the FSA has few powers to address consumer detriment which is not directly related to food safety; the Agency must not hesitate to call on Government to introduce mandatory action when the tools at the Agency’s disposal – consumer empowerment and industry self-regulation – look unlikely to succeed 8 Objectives 3.3 Regulators should have a clear set of commented that there has long been a statutory objectives, ordered in a hierarchy, lack of clarity over the respective roles of the so they have a clear sense of purpose. FSA and the Department of Health around The Food Standards Act 1999 does give nutrition and health issues. A Cabinet Office the FSA clear objectives. These are to report on the future of food policy also ‘protect public health from risks which may identified the need for a more integrated arise in connection with the consumption approach to consumer advice on food of food and otherwise to protect the interests matters1. Following that report, the FSA has of consumers in relation to food’. agreed to expand its current advice to provide a one-stop shop to consumers looking for 3.4 The objectives are framed in a way that information and advice on nutrition, food gives the Agency a permission slip to and sustainability, and food safety. promote the interests of food consumers in a wide sense. They enable it to engage Consumers in a position of vulnerability in matters other than food safety – the main trigger for the creation of the FSA 3.6 Consumer Focus has a particular interest – to embrace issues such as nutrition where in safeguarding the interests of individuals its work is very welcome. The FSA also who face a higher risk of detriment due supervises a considerable amount of quality to the particular situations they face as standards legislation, which does not protect consumers, either due to their own safety or health, but rather consumers’ wider circumstances or as a result of the actions interests in relation to food. However, the of providers. We consider that a regulator’s FSA does not regulate prices or have legal framework should give it duties to have competition powers, which are the remit regard to the interests of consumers who of the competition authorities. have additional requirements that would not normally be sufficiently provided for 3.5 The broad wording of the objectives is by the market. welcome because it provides the Agency with the remit to tackle consumer detriment 3.7 The statutes do not place an explicit across the waterfront as it emerges. Equally, duty on the FSA in relation to vulnerability. it creates a need for the Agency to define This is surprising given that large parts its priorities and work out a clear division of the population have specific dietary needs, of labour with other public bodies in this for example pregnant women or people arena. The FSA has Concordats with, in certain ethnic groups. Further, consumers among others, the Department of Health can end up being disadvantaged when buying and the Department for Children, Schools food due to their personal circumstances, for and Families, which set out the policy example consumers with visual impairments boundaries and ways of working. On this may have problems reading nutrition or point, stakeholders allergy information on food labels. Access by consumers on low-incomes to affordable nutritious food is also a current area of public policy concern; as the FSA does not regulate price, its remit in this area is limited. 9 3.8 Recognition of the additional needs • openness – there is a duty to secure that: of some consumers is perhaps implicit ‘records of its decisions, and the information in the Agency’s statutory function of ‘providing on which they are based, are kept and made advice and information to the general public available with a view to enabling members (or any section of the public)’. Even so, we of the public to make informed judgments would have preferred to see a more explicit about the way in which it is carrying out and prominent duty given the potential health, its functions’. In particular, the Agency has cultural and religious impacts of food the power to publish its advice to Ministers choices. It is important to note that the • consultation – there is a duty on the Agency absence of an explicit statutory duty does to ensure that those affected by its activities, not preclude the Agency from intervening including members of the public, are on vulnerability grounds (see discussion consulted with under State of action). 3.10 Later sections of this report explore how Duties the Agency implements these provisions 3.9 The legal framework can helpfully confer in practice. We identify them here to specific requirements on regulators with demonstrate how the statutes can helpfully respect to their working methods, without set the tone and approach of a regulator’s becoming so prescriptive that these work without being overly prescriptive inappropriately constrain regulators’ freedom about the exact methods it should use. to act. The duties that should be covered 3.11 The FSA is a UK-wide government in the statutes will depend on the context, department operating within devolved but they may relate to make-up of competence. The statutes place a series governance structures, requirements of requirements on the Agency to put to consult, transparency and devolution. this into effect, which in many respects When examining the FSA’s statutes, correspond with the suggestions for good we found a number of features that practice made by stakeholders who facilitate consumer-focused regulation: attended our devolution discussion group. • Board membership – the Agency must have regard to the desirability of securing a variety of knowledge and skills available in its membership, including experience in matters related to food safety or other interests of consumers in relation to food 10 3.12 There is a requirement for the Board to issuing and enforcing directions to ensure to contain members appointed by each compliance with the code of practice. of the devolved governments, which helps The FSA can also issue guidance to local to ensure its decisions are inclusive and authorities on the control of food-borne responsive to the possible differences diseases, which local authorities must have in the needs of consumers across the regard to. As written, the legislation appears nations. In a similar vein, at executive level to create quite an assertive relationship there is a requirement to appoint directors between the FSA and local authorities. for Wales, Scotland and Northern Ireland The use of these powers, or the prospect (reporting to the chief executive) to ensure of their use, will inevitably cause tensions from that the Agency’s activities in these nations time to time, but we consider they provide are carried out ‘efficiently and effectively’. a useful backstop to address any performance Further, the FSA is required to establish issues that might occasionally occur. advisory committees in Scotland, Wales 3.15 While the FSA has an extensive toolkit and Northern Ireland. An advisory committee with respect to food safety, it has few for, or for any region of, England is also powers related to other matters, such as envisaged in the legislation. There is also its role in promoting healthy eating. The a duty to promote links with the devolved Agency must therefore rely on consumer administrations. empowerment and encouraging voluntary approaches from the food industry, or ask Powers Government to introduce change. The 3.13 Regulators need an effective toolkit, such as Agency told us it does not consider its a sanctioning regime, in order to achieve their statutes inhibit it in this respect; however, statutory objectives. A good set of statutory a lack of powers in this arena does reduce objectives is undermined if regulators do its options and stakeholders will be aware not have the powers they need to do their of these constraints in negotiations. job properly. This makes it important for the FSA to show it is ready to call on Government to introduce 3.14 The regulations for which the FSA mandatory measures when necessary. is responsible are largely enforced by local Consumer Focus recognise that there are authority regulatory services. It is important limitations here, for example it is not possible to note that the Agency does not fund this to introduce legislation in areas which have activity, although financial support is available been fully harmonised at EU level. We discuss for some particular initiatives. A statutory the FSA’s regulatory approach later in the code of practice, supplemented by practice report (see State of action). guidance, sets the general principles and approach that the Agency expects local authorities to follow. The legislation gives the FSA a function to monitor the performance of enforcement authorities. This comes with a series of powers ranging from setting performance standards through 11 4 Culture and accountability 4.1 What we were looking for • translates statutory objectives into consumer-focused priorities and values • embeds a consumer focus across all levels of the organisation • transparent about its activities • accessible to the general public, including disabled users • works effectively in a devolved setting 4.2 What we found • a commitment to the consumer interest is central to the FSA’s values and comes across clearly in its corporate documents • the FSA is sensitive to possible tensions between its statutory duties and the better regulation agenda, which it should continue to monitor closely • the Board includes members with a background in consumer affairs • the Consumer Branch has produced a useful guide on consumer engagement which helps to spread understanding across the organisation. However, it appears to have less input in policy design and implementation, so it is unclear how the Agency is able to assess the consumer interest in a consistent fashion across all its work • the FSA puts much effort into trying to help the public to understand the science behind food; stakeholders consider that it gets its risk communication right most of the time • the FSA is best in class for transparency • the FSA is demonstrably committed to working effectively in a devolved context and displays many features of good practice 12 Language 4.3 A regulator’s level of consumer focus will 4.5 In fact, the Agency has been criticised partly be reflected in how it translates its for taking its consumer responsibilities statutory objectives into high-level priorities too far. The Hampton Implementation Review and values. These statements set the tone concluded that the Agency went beyond for how regulators approach their work, its statutory remit in that it ‘in some sending a message both externally and circumstances presents itself more internally. We looked at the language used as “championing” the consumer interest by regulators in public, both in corporate as distinct from “protecting” those interests.’ documents such as annual reports and This pro-consumer stance was said work plans and in reactive communications to complicate the Agency’s engagement such as press statements. The FSA uses with and understanding of business2. very consumer-focused language to describe 4.6 Consumer stakeholders took strong the purpose of its work in key corporate exception to this statement, arguing that documents such as the annual report, it was right for the FSA to be seen to be forward work plan and other external ‘on the side’ of consumers in a market communications. Indeed, this stems from where the balance of power – due to wide the Agency’s core values, one of which is information asymmetries and a powerful ‘putting the consumer first’; this exemplifies industry lobby – was so uneven. They how it has successfully translated its statutory stressed that the circumstances in which objectives into consumer-focused the FSA was set up give it a unique position self-defined aims. in the regulatory landscape. The Agency 4.4 We also asked consumer stakeholders, was created in the aftermath of the BSE crisis through a mixture of discussion groups with a clear mandate to put the interests and interviews, about their perceptions of consumers at the heart of the new regime of whether the regulators operate with in order to restore public confidence in food a consumer-focused culture. Stakeholders safety. We note that the review document we spoke to who dealt with a range did not offer specific examples to illustrate of regulators considered that the FSA when the FSA had inappropriately has a strong consumer-focused culture, ‘championed’ the consumer interest. although there is considered to be some variation across policy areas. For example, the Nutrition Team is seen to be driven by a strongly consumer-focused agenda whereas the Meat Hygiene Service – an Executive Agency of the FSA – was said to be less consumer-focused. 13 4.7 Food safety is supervised through We found the Board membership to be well an inspection regime, so the FSA’s work balanced. The chair, Dame Deirdre Hutton, inevitably involves costs on business and, has a strong background in the consumer therefore, it is legitimate to ensure these movement and a number of other members |costs do not become unnecessarily also have expertise in consumer affairs and burdensome. However, stakeholders customer-facing businesses. As we noted expressed concern to us that the focus earlier, the Food Standards Act provides a of the better regulation agenda on reducing helpful steer to the Agency in this direction. administrative burdens creates tensions 4.9 It is important that knowledge about the with the Agency’s core concern to safeguard consumer interest is spread across the public health. Indeed, in June 2008, an FSA organisation, rather than contained within Board paper commented that the Agency the one area, so that a consumer focus is ‘acutely aware of its statutory obligations filters across to all members of the staff and the potential issues which may arise team whose work impacts either directly from working towards this reduction target’. or indirectly on consumers. Our principal There were mixed views as to whether the means of assessing this was to interview FSA is meeting this challenge successfully. senior staff at the regulators, asking how One stakeholder wanted the Board to take they organised themselves internally and a stronger stance on these issues, while what techniques they use to hard-wire another commented that the Board retained a consumer focus throughout all levels its independence from Government fiercely of the organisation. and was not slavish to the better regulation agenda. This is clearly something that the 4.10 The day-to-day operations of the Agency FSA is already sensitive to and should are managed by a Chief Executive, continue to monitor. supported by an Executive Management Board. A series of directorates are organised Organisation to reflect the FSA’s strategic targets and 4.8 A consumer-focused culture is likely to flow other core activities. There is a dedicated from the top of the organisation, so one Consumer Branch, which reports to the indicator we investigated is the background Director of Communications. The Branch of Board members. While the role of all Board has the following roles: members is to work towards the same • advising policy teams on how to engage objectives rather than to represent specific with individual consumers, specialising causes, if the decision-making structures in reaching those consumers that are include individuals with an expertise in disadvantaged and/or vulnerable consumer affairs this can help regulators be better attuned to the consumer interest; • making use of appropriate qualitative and it can also bolster confidence externally. quantitative research methodologies to gain a deeper understanding of consumer views and attitudes 14 • developing new engagement tools, including the Citizens’ Forums on Food, Good practice: consumer and the School Council Network engagement guide In October 2007, the Consumer Branch • building the capacity of the organisation produced a good practice guide on to understand the changing and complex consumer engagement – ‘How to put the consumer environment consumer first’ – in collaboration with • gathering intelligence from other Involve. The guide aims to ensure that the Government departments, regulators, Agency follows best practice when it comes think tanks and publicly-funded institutions to engaging with consumers, and makes use to ensure that the Agency remains of the most up-to-date information and innovative in its approach advice available. A printed copy of the guide was disseminated to Heads of Branch and 4.11 A location in the communications directorate Heads of Division and an electronic version should leave the Consumer Branch well is available to all staff. placed to spread knowledge across the organisation. One example of good practice The guide is organised into five sections: is a guide to consumer engagement, • what do we mean by consumers? which the Branch has developed and disseminated internally (see box ). In addition, • why is consumer engagement it has brought together the Agency’s so important? commissioned consumer research on the intranet for easy reference. The main role • how do I engage effectively of the Consumer Branch seems to relate with consumers? to developing good practice on consumer • consumer engagement approaches engagement and intelligence gathering, with less focus on working with colleagues • helpful tips for planning consumer to use this information at the policy design engagement and implementation stages. This structure appears to limit the Agency’s ability to assess the consumer interest in a consistent fashion across all its work. We are encouraged that the Agency is actively considering how to improve the linkages between consumer engagement and policy development following the report of the Advisory Committee on Consumer Engagement. 15 Openness and transparency 4.12 Regulators should be open and transparent 4.14 The FSA has been widely praised for its organisations, providing information about openness and transparency. For example, working methods, decisions and performance the House of Commons Science and so that organisations and the media can Technology Committee said that the Agency scrutinise their work. As an indicator of is ‘in many ways a model of transparency’. transparency, we compared the regulators’ We endorse this finding. The legacy of the websites to see if certain types of information BSE crisis once again makes it vital that relating to decision-making and organisational the FSA meets best practice in this regard. performance are easily available. It is also During 2008, the Agency set up a task important for the public to be able to force to review its policy on publication access the decision-making process; of information. The Board accepted the as indicators of this we asked regulators recommendations of the group, which if they hold annual public meetings and will improve openness further. For example, we examined performance under freedom in future all food law enforcement monitoring of information legislation. data will be published, including the names of local authorities. However, consumer 4.13 The FSA meets all of our indicators and, groups were disappointed that the FSA indeed, goes further. The public is invited decided it was not appropriate to explicitly to attend open Board sessions, which are name businesses that did not meet the held at venues across the UK. A question Agency’s best practice guidance, in contrast and answer session is held at the end of to the policy that businesses that do meet Board meetings, at which members of the the guidance will be named and praised. public can raise issues of concern. Board meetings are also webcast and there is a 4.15 There are potential adverse consequences freephone listen-in service to ensure that from being an open regulator. For example, cost is not a barrier to anyone who wants the FSA told us that some businesses to engage in the decision-making process. are less willing to share information if they In a further example of good practice, think the Agency will publish it. Further, the minutes of meetings between senior staff Agency has adopted a policy of publishing and key stakeholder groups are also made the advice of its scientific committees as soon available on the Agency’s website. as it is available, often before it has decided a policy position. This can cause difficulties if lobby groups campaign openly in the media before the FSA is ready to respond. However, stakeholders agreed that it was preferable to be open and suffer the occasional media storm than be unable to see the workings-out of policy. They said that the Agency’s scientific committees had led the way in opening up scientific advice and shown that this could work. 16 Table 1: Transparency indicators Postcomm FoodSA Ofcom Ofgem Ofwat FinSA Board minutes ✓ ✓ ✓ ✓ ✓ × Board papers ✓ × × × × × Annual public meeting ✓ ✓ ✓ ✓ × × Performance data ✓ ✓ ✓ ✓ ✓ × Consultation responses ✓ × ✓ ✓ ✓ ✓ Organisation chart ✓ ✓ ✓ ✓ ✓ ✓ Internal complaint procedures ✓ ✓ ✓ ✓ × ✓ FOIA disclosure log ✓ ✓ × × × × FOIA decision notices* 0 18 2 1 0 0 * Decision notices issued by the Information Commissioner for England and Wales from its inception until December 2008 17 Accessibility 4.16 The FSA rightly puts great store on its policy 4.18 A consumer-focused regulator will make of basing its decisions on scientific evidence. efforts to be accessible to the public at large The Agency has seized on the need for as well as expert consumer representatives. it to explain the science behind food in The Chief Scientist’s blog is one technique an accessible way, in order to restore public that the Agency uses to try to explain the confidence in food safety following the science behind food in lay terms. This was BSE crisis. The public health impacts of the created to ‘show the importance of good Agency’s decisions also present difficult science and how we use it to inform challenges in terms of risk communication, FSA policies and advice’. The blog is an creating a need to inform the public about innovative attempt to demystify technical health risks without causing unnecessary issues and to connect with ordinary panic. The Agency will often find itself dealing consumers. A blog entry timed for the with emerging or unexpected issues, where New Year which debunked detox diets the scientific evidence can be incomplete is a good example of this. The Chief Scientist or uncertain. also publishes an annual report, written in deliberately accessible language, 4.17 The FSA has made a commitment to always on scientific developments across the put emerging evidence into the public domain Agency and summarising the ways in which if there is a public health risk, highlighting the Agency uses and promotes science. any uncertainties clearly. The FSA told us that the science and communications teams 4.19 The FSA’s role to advise the public about work together closely, using knowledge food safety makes it important for the gained from the Agency’s consumer research Agency to be well-known among – about what people think and feel about risk, consumers. The FSA has given itself an and what information they might need objective to be the ‘most used and most to make informed choices – to get messages trusted source of advice on food safety across to the public that are both scientifically and information about food and nutrition’3. accurate and understandable. Stakeholders Our omnibus survey indicated prompted said that the FSA gets things right most public awareness levels of 73 per cent of the time. One example given was changes – the highest of the regulators in this project. to control measures for BSE – an extremely The FSA works to raise its profile in a series sensitive policy area – where the Agency of ways, such as the EatWell website and managed successfully to change its major media campaigns linked to policy enforcement approach without losing initiatives, such as salt reduction. Maintaining public confidence. a physical presence in the nations and (some) regions of England, and involvement in running projects in schools and local communities, also helps the Agency to maintain a profile and connect to the local consumer experience. 18 Table 2: Accessibility features Postcommi FoodSA Ofcom Ofgem Ofwat FinSA Moneymade cleariii Corporateii Corporate eatwell Access keysiv ✓ ✓ ✓ ✓ ✓ ✓ ✓ × Variable text sizev ✓ ✓ ✓ ✓ ✓ ✓ ✓ ✓ Colour optionsvi ✓ ✓ ✓ ✓ ✓ ✓x ✓ ✓ Screen-reader compatible webpagesvii ✓ ✓ ✓ ✓ ✓ ✓ ✓ ✓ Plain English versions of consultation × – × – some × × × documentsviii Textphone numberix × × × ✓ ✓ × × × See page 42 for references or click here 4.20 Another dimension we examined was the accessibility of the regulator’s websites for disabled users. We tested the regulators’ websites based on criteria we developed following a discussion group with organisations representing consumers with disabilities. We also looked for other accessibility features signposted from the website, such as the provision of a textphone number. Table 2 shows that the FSA’s two websites contain the more commonly-found features, but there is scope for the Agency to incorporate additional accessibility features. 19 Devolved-working 4.21 On the face of it, the needs of consumers, • physical presence – a permanent office particularly with respect to food safety, in each nation should not differ across the UK. However, due to differences in the demographic • board membership – Board members make-up of the nations, such as different located in the nations or who have specific proportions of economic deprivation or knowledge of how the sector works rural communities, the needs of consumers in a national setting (other than England) across the different nations may differ and • engagement with decision-makers regulatory priorities may need to adapt – the quality of links with parliaments to reflect this. Further, activity by regulators and governments in the nations at a trans-national level impacts on the social, environmental and economic fabric of each • stakeholder engagement – the quality of the nations and permeates a range of of links with consumer stakeholder devolved functions including: social inclusion; organisations in the nations economic development; education and • work planning – evidence of projects lifelong learning; and rural development. targeted at the needs of consumers If regulators are not sufficiently tapped into in the nations the policy environments of the nations they risk taking decisions that have unintended • reporting – annual report contains a section negative consequences in these arenas. on the regulator’s activities in the nations 4.22 Therefore, even when policy decisions • consumer research – evidence of consumer are reserved matters, it is important that research conducted in the nations regulators embrace a culture that will deliver a genuinely UK organisation, rather than 4.23 Stakeholders marked the FSA strongly one organisation based in one part of the in this aspect of its work. As we highlighted UK with a policy of outreach to its other in the section on legal framework, the statutes parts. We looked for evidence, through place requirements on the Agency – Board analysis of annual reports and work plans, membership, advisory committees – which and interviews with stakeholders and staff, set a good tone from the start. The FSA to see if the regulators are responsive is organised so that its offices in the nations to possible differences in the needs are in effect mirror organisations of the of consumers in the nations and the impact UK body. The FSA told us that a physical of their work on the social and economic presence is necessary for both practical fabric of the nations. As our starting point, and presentational reasons. For example, we developed with organisations based the public service in one nation was in the nations some criteria which indicate described as highly networked and you if regulators are working successfully needed to be ‘part of the club’ in order in a devolved context: to exert maximum influence. 20 Table 3: Welsh language indicators Postcomm FoodSA Ofcom Ofgem Ofwat FinSA Welsh language section on website ✓ ✓ ✓ × × ✓ Annual report ✓ × ✓ × × ✓ Forward work plan ✓ × ✓ × × × 4.24 The FSA’s commitment to being a genuinely offices do not have the budget to fund UK-wide regulator is manifested in a number major consumer research programmes, of ways. Of the FSA’s eight open Board but the FSA’s UK-wide consumer research meetings each year, two are held in one contains statistically representative samples or other of the devolved administrations. for each of the nations. The FSA’s devolved The Board uses this occasion as an structure means national offices can tap opportunity to carry out a two-day public into national funding sources, for example affairs programme, involving visits to local the Welsh Assembly Government provided businesses and so on. It receives information funding to improve the National Diet and papers from the national advisory committees Nutrition Survey. on a regular basis. At UK level, the corporate plan contains performance indicators for the 4.26 As another indicator of working effectively nations, and one of the criteria in the FSA’s in a devolved context, we examined the world class regulator initiative relates to regulators’ websites to see what information devolution. There are separate corporate is made available in the Welsh language. plans for each nation which take account The Welsh Language Act 1993 established of national priorities. For example, FSA the principle that, in the conduct of public Wales’s 2010-15 has a greater focus business and the administration of justice on vulnerability, reflecting higher levels in Wales, the Welsh and English languages of relative deprivation in parts of Wales. should be treated on a basis of equality. We examined the FSA’s website to see 4.25 National offices facilitate partnership how this principle is implemented in practice. working at national level. For example, Table 3 demonstrates that the FSA there are national nutrition action plans meets each of our criteria. In 2007, a for each country and FSA Scotland Welsh Language Unit was set up to increase works in partnership with Community the Agency’s capacity to engage in Welsh, Food and Health Scotland (part of Consumer including translation, proofreading, Focus Scotland) to fund over 300 food- simultaneous translation and media work. related initiatives. FSA Wales holds annual As well as parts of the FSA’s corporate site, conferences, for example on healthy eating www.salt.gov.uk and www.eatwell.gov.uk in north and south Wales, and presents are available in Welsh. local awards for food innovation. The national 21 5 State of readiness 5.1 What we were looking for • identifies likely sources of consumer detriment, both now and in the future, which shapes work priorities • uses effective mechanisms to understand the consumer perspective and translate this insight into sound decisions • works effectively with others, including with consumer organisations • influences the wider regulatory agenda 5.2 What we found • the FSA has comprehensive systems in place to identify food safety risks, but it has sometimes been reluctant to take a lead on other food policy matters, such as issues related to new technologies and sustainability • an independent review found good examples of consumer engagement by the Agency, but concluded that engagement is not yet a fundamental part of how the Agency operates • stakeholders commented positively on the FSA’s engagement with them 22 Identifying consumer detriment Consumer engagement 5.3 It is important for regulators to know as far 5.6 Regulation works best when it is designed as possible the likely and actual risks facing around the needs of those it is meant consumers, both now and in the future, to benefit. A key means of achieving this and for work priorities to reflect what is really is to have a direct dialogue with consumers. important for consumers. Rather than make assumptions about what consumers want or need, regulators should 5.4 The FSA has comprehensive systems proactively engage consumers on tough to keep up-to-date with the latest scientific decisions. They should develop an awareness developments and has plans to improve of the available research techniques and use these further. However, while stakeholders a mix of quantitative and qualitative methods considered the FSA to have a comprehensive to get to the heart of an issue. This activity and robust evidence base on the whole, should be well resourced and genuinely feed they were concerned that the Agency into policy design. To examine the regulators’ is very dependent on local authority regulatory performance in this area, we looked at major services to identify problems on the ground research exercises conducted by the and questioned whether there are adequate regulators supplemented by the views of the resources and reporting mechanisms stakeholders and staff who we interviewed. to ensure that all relevant information is fed back centrally. 5.7 The FSA places a strong emphasis on consumer engagement as part of its 5.5 Stakeholders suggested that the FSA commitment to evidence-based policy struggles with horizon-scanning, but making. One indicator of the importance agreed this was a difficult area to get right. of consumer engagement to the Agency The Agency has put in place a series of is that the Board receives updates on measures to improve its performance in this progress against the consumer engagement area and we are encouraged that this part strategy every six months. Another is the of its work is measured as part of the World Advisory Committee on Consumer Class Regulator initiative. The Strategic Plan Engagement, chaired by Philip Cullum, contains a commitment to keep abreast Deputy Chief Executive of Consumer Focus, of developments in technology and to monitor set up by the Agency to provide the Board demographic trends and other changes with an independent assessment of the in society. Activities include a project with extent to which the Agency is engaging Demos on horizon-scanning, looking at future effectively with consumers and to offer developments in science and the impact this advice to Agency staff on how best might have on consumers. A new General to engage consumers on particular issues. Advisory Committee on Science will have a role in horizon-scanning to identify new issues and gaps and will take a more strategic overview of the Agency’s science work. 23 Good practice: Advisory 5.8 The ACCE issued its first report in Committee on Consumer December 20084. It found good examples Engagement (ACCE) of consumer engagement by the Agency, and was struck by the commitment of The ACCE reviews and assesses the individual staff to engaging consumers. Agency’s consumer engagement work However the Committee concluded that and provides external challenge to the engagement is not yet a fundamental part Executive that it is continuing to “put the of how the Agency operates, with the major consumer first”. The Committee is chaired part of direct contact with consumers being by Philip Cullum and contains members handled by the Consumer Branch rather drawn from a wide range of backgrounds. than the relevant content experts. Across the Topics discussed so far include: organisation, it observed a patchy knowledge • microbiological safety and application of engagement approaches. • nutrition labelling 5.9 Our impression, albeit from a brief overview of the FSA’s consumer engagement activities, • disadvantaged and vulnerable consumers is that there are certainly examples of good • building capacity practice and innovation to consolidate and build on. • engagement in Scotland, Wales and Northern Ireland 5.10 A major annual tracking survey – the Consumer Attitudes Survey – provides The ACCE meets twice a year and makes a rich source of information on consumer an annual report to the Board commenting views about a range of food issues over on the extent to which consumer engagement time. Topics covered by the survey include: is rooted in the Agency’s policies and shopping habits; eating habits; labelling; functions via in-depth case studies. food safety and hygiene; information sources used; and views of the FSA. The Agency also carries out one-off substantial quantitative research on specific subjects, for example a survey on the eating habits, nourishment and nutrition-related health of people on low incomes to provide evidence that could contribute to reducing health inequalities. 24 5.11 The Agency uses a mix of consumer have clear methodologies to assess trade engagement tools. One example of good offs when the interests of different groups practice is the Citizens’ Forums on Food. of consumer conflict. For example, a measure The Forums have a twofold purpose: to designed to benefit consumers in a position develop a deeper, richer conversation with of vulnerability may impose costs on all the public in order to understand some of consumers, and the interests of consumers the ‘top of mind’ concerns that consumers in the present may conflict with the interests have about food issues; and to gain of future consumers. consumer input into the earliest stages of policy development. Forums have been held 5.14 We asked staff at the regulators if they so far on topics such as Scores on the Doors, used formal theoretical frameworks to aid changing patterns of eating out and access the policy-making process. Like other to healthy eating. regulators, the FSA appears to rely on the judgement of staff based on their knowledge 5.12 Other examples of interesting consumer of the issues and experience to make engagement methods used includes: decisions on a case-by-case basis, rather than use a theoretical model to guide them. • School Council Network – a mix of primary In the absence of such a framework, it is and secondary schools in England – to listen difficult to see how regulators develop policy and understand the views of young people consistently across the organisation or over • piloting the use of eye-tracking technology as time. The breadth and complexity of the part of in-store audits asking consumers why issues that regulators deal with may make they bought certain products such a framework impractical. However, consumer organisations commonly use • reconvened focus groups exploring attitudes a set of principles to guide their analysis to folic acid in bread of a policy issue, which helps them to identify potential areas of concern and develop • a partnership with the Health Safety policy solutions. We would encourage the Laboratories to understand more about FSA to explore the feasibility of applying consumers’ changing perception of risk something similar to their work, perhaps integrated within impact assessments Translating consumer insight into or cost benefit analysis exercises. decision-making 5.13 Regulators require the means to translate 5.15 It is important that regulators base their the consumer insight they have obtained decisions on how consumers actually behave from different sources into sound policy in markets rather than rely solely on models decisions. This may involve a structured which view consumers as rational economic analytical framework, a set of principles actors. In 2008, an NAO study on removing or more informal methods, but the important retail price controls recommended that thing is that decisions are consistent and regulators build an understanding of based on a thorough understanding of the behavioural economics, which can provide consumer interest. Further, regulators should insights into consumer participation in markets which cannot be explained 25 by traditional economic theory5. Stakeholders to work with all parts of the Agency to considered that the FSA did not follow the enhance stakeholder engagement and there economic text-book approach, but tried is now an emphasis on new approaches, hard to develop policy in line with actual such as running workshops at an early stage consumer behaviour. The FSA has set up in the policy development process. an independent Social Science Research 5.18 Consumer stakeholders spoke positively Committee (SSRC), chaired by Sir Roger about the FSA’s engagement with them Jowell, to help strengthen its capacity for and their comments suggest that the social science research, and to add to its Agency’s initiatives are making some evidence base. The SSRC will advise the difference. They said that the Agency Agency on how social science can best is evidently keen to involve them in its work, contribute to meeting the Agency’s strategic being proactive in informing them of goals, and critically assess how it gathers developments and asking for their views. and uses social science evidence. The chief executive’s forum was appreciated for providing stakeholders with an opportunity Stakeholder engagement to highlight issues with staff at the highest 5.16 It is important for regulators and consumer level of the organisation. An example of early groups to have mature relationships, based engagement of stakeholders in policy on respect and a clear understanding of roles development is a project on formula milk, and responsibilities. The views of expert where the Agency has involved them consumer representatives should be sought in designing the consumer research. out at key stages of the policy-making process, through a mixture of formal and 5.19 The FSA’s stakeholder engagement model informal mechanisms designed to ensure is interesting because the Agency decided meaningful participation. Regulators should to abandon its Consumer Committee, which also actively reach out to hard-to-reach worked in a similar way to consumer panels groups who represent consumers who may at other regulators, in favour of an ongoing have distinct needs and priorities. In order engagement approach. While consumer to examine experience in this area we panels can be organised in different ways, interviewed consumer stakeholders and the FSA’s experience shows that a staff at the regulators. committee-based model has advantages and pitfalls. Stakeholders said they preferred 5.17 The FSA told us that improving stakeholder the Agency’s mixed-model approach to engagement is a priority following the findings engagement over the consumer committee of a stakeholder survey carried out in 2007, model. We discuss the implications of this which suggested that the Agency needed in our compendium report. to be more proactive in communicating and more willing to develop face-to-face and informal relationships. In response, a new external affairs team has been set up 26 Influencing the wider regulatory agenda 5.20 The FSA’s work plan has a strong focus sustainability, and food safety issues, which on consumer choice and healthy eating, would help to address this particular point. but less attention is given to other issues Further wider progress on the FSA’s approach such as cloning, GM and nanotechnology, to sustainability was made in September which have important implications for 2008, when the Board agreed an approach consumers. Stakeholders suggested that that will ensure decisions made by the the FSA finds it difficult to grasp these issues Agency are in line with the Government’s as they are less tangible than areas such sustainability goal. as nutrition, which have a strong scientific 5.22 We looked for evidence to see if regulators evidence base. These are controversial policy are seeking to shape the regulatory issues and we would like the Agency, working agenda when this was found to be alongside Government, to do more to wanting. One example of where the FSA facilitate public debate on these sorts has intervened effectively to influence the of matters. We note the FSA has not stepped external regulatory environment was back from controversy on organic food, by developing a nutrient profiling scheme where it has been steadfast in its stance that formed the basis of Ofcom rules that the scientific evidence does not prove on restrictions to junk food advertising. that organic food is healthier, or in grappling with issues related to animal cloning. These 5.23 Policies affecting consumers are often interventions demonstrate the value that the decided in Europe and beyond, so regulators Agency can add in these areas. should be active in these fora. A noteworthy feature of the food sector is that over 5.21 Some consumer stakeholders also 90 per cent of laws derive from the EU, expressed disappointment that the mostly in the form of Regulations. We did Agency has, in their view, been reluctant not explore this aspect of the Agency’s work to embrace the sustainability agenda. in detail, so we are not able to comment This is difficult ground for the FSA because on the FSA’s effectiveness in this arena. there are potential conflicts to resolve However, we note the finding of the Hampton between nutrition needs and sustainability Implementation Review, which concluded principles, for example around fish that the FSA is effective at negotiating consumption. Defra (and the devolved at the European level, but it could increase administrations) are responsible for achieving its influence further by building on its the sustainable production of fish, but the successes in order to develop a more FSA has a role to take sustainability into strategic approach to its engagement with account in giving advice on nutrition and Europe. The Agency has developed a new safety. These trade-offs are hard for EU and International Strategy to address consumers to figure out, so it is important this point. for there to be a source of independent advice for them to turn to. The Agency is considering whether to expand its current advice to provide a one-stop shop to consumers on nutrition, food and 27 6 State of action 6.1 What we were looking for • empowers consumers to help achieve regulatory outcomes • has effective incentives to encourage compliance with its rules • chooses the appropriate regulatory approach in the circumstances, and intervenes in a timely fashion when needed • gives priority to, and intervenes effectively on behalf of, consumers who are vulnerable • uses enforcement tools when necessary to protect consumers 6.2 What we found • the FSA has made a substantial investment in consumer education initiatives and has worked imaginatively to target specific audiences through partners and specialist media channels • the FSA has successfully harnessed consumer power to provide an incentive for food businesses to change their behaviour, for example in its traffic light labelling and Scores on the Doors initiatives • the FSA has achieved positive outcomes by convincing the food industry to put in place voluntary measures, however some consumer stakeholders consider that it has not asked government to introduce mandatory mechanisms when, in their view, these were necessary • the FSA shows good practice in its engagement with hard-to-reach groups, but this work is not always highly visible externally and consumer stakeholders feel that the Agency’s decisions do not always take sufficient account of the needs of consumers who are vulnerable • some consumer stakeholders view enforcement as a weak point in the regulatory regime, but this is largely due to insufficient resources which are outside of the Agency’s control. The FSA has launched a major initiative to reform the processes that underpin its relationship with local authorities. It is too early to tell if this will succeed in addressing these issues 28 Empowering consumers 6.3 One tool available to regulators to help healthier food products has influenced deliver desired regulatory outcomes is the businesses to reformulate the nutritional empowerment of consumers. Providing content of some foods. The Agency has consumers with information about firms’ also effectively used consumer demand performance and practices, thereby arming through its Scores on the Doors initiative them to make choices in competitive to provide an incentive for food businesses markets, can act as a powerful incentive to comply with food hygiene rules. for businesses to be compliant with Consumers can check the food hygiene regulations and to follow good practice. score given to a restaurant or other business serving food by a local authority inspector. 6.4 Empowering consumers is one of the The score gives consumers important areas measured by the FSA as part information about food hygiene practices of its World Class Regulator initiative. and gives non-compliant food businesses The Agency’s own assessment is: ‘this a powerful incentive to improve their hygiene is an area where the FSA has a growing performance. At its December 2008 meeting, number of examples of good and best following an evaluation exercise that looked practice. Rapidly becoming a strength.’ at the strengths and weaknesses of different Indeed, the Hampton Implementation Review local models, the FSA decided to implement concluded that the FSA adopts innovative a six-tier national scheme for England, approaches as alternatives to traditional Wales and Northern Ireland. Scotland will regulation and enforcement, making use continue to operate its pass/improvement of non-legislative approaches to influence required model. consumer demand or make use of existing market incentives. 6.5 The Agency’s work on front-of-pack nutrition labelling is one example of this (see box, page 30). It has promoted a colour-coded traffic-light labelling scheme based on the nutritional content of food products to help consumers make healthier food choices. This has been widely supported by the health sector and consumer organisations, and it has been adopted by a number of major supermarkets, manufacturers and others. The FSA claims there is evidence that consumer demand for 29 6.6 Another facet of consumer empowerment Good practice: is the provision of ‘educational’ information Traffic-light labelling to consumers. The FSA has made a The FSA’s recommended traffic-light substantial investment in consumer education front-of-pack labelling scheme is designed initiatives. Examples of activities include: to provide ‘at a glance’ information on labels • eatwell.gov.uk – a public-facing website about the nutritional content of foods. containing advice about healthy eating, The colour-coded labels show if a product understanding food labels and how what has high, medium or low amounts of fat, we eat can affect our health. As previously saturated fat, salt or sugar. mentioned, this may be expanded Following an extensive research programme in future to incorporate issues relating started in 2004, a set of principles, rather than to sustainable consumption a definitive scheme, was recommended to • major publicity campaigns – using all media, allow food businesses freedom to innovate including TV advertising, to promote key while maintaining a necessary level of messages, for example on salt intake, consistency. A range of models has emerged traffic-light labelling and cooking barbecue and to date, eight retailers, 27 manufacturers, food safely one restaurant, five service providers have adopted the FSA’s recommended approach. • schools work – supporting the efforts of Support from the consumer and public health other government departments, developing sector for the FSA’s approach now comprises a framework of food competences and 23 bodies, including all the major professional practical initiatives, such as the Cooking associations and consumer groups. The Bus, curriculum materials and packed lunch Agency has also carried out a publicity advice for parents. Priority is given to campaign, including TV advertising, to schools in areas of high deprivation promote public awareness. 6.7 Another area of strength is that the Agency The Agency’s Board agreed that it would works imaginatively to target specific be important to assess independently audiences through partners and specialist the impact of its recommended approach media channels. Examples include linking to front-of-pack signpost labelling, and other up with the Women’s Institute to run Get front-of-pack key nutrient schemes that are Cooking programmes in disadvantaged in use, on consumer behaviour. An evaluation communities in former industrial areas of project has been set up, which is directed Wales, working with youth magazines to by a small independent management target healthy eating messages to teenage panel comprising representatives with girls and with Ben TV on a television expertise in market research, nutrition and documentary focusing on illegal food imports, social science. The FSA is being assisted primarily from West Africa. in its work by a larger cross-stakeholder advisory group. 30 Regulatory approach 6.8 A consumer-focused regulator intervenes 6.10 However, while stakeholders recognised at the right time and in the right way. the achievements that had been made Self-regulation offers advantages in terms through voluntary approaches, some of encouraging firms to take ownership considered that the FSA has been reluctant of their consumer protection responsibilities, to ask Government to introduce mandatory enabling faster and innovative responses mechanisms when, in their view, these were to problems, and reducing costs that necessary. For example, the FSA announced consumers ultimately pay for. However, its preference for a traffic-light labelling as it is a voluntary approach, not all firms scheme following extensive research starting will cooperate and the interests of consumers in 2004 but, in the face of stiff opposition from who are vulnerable can often be neglected some parts of the sector, it has agreed to if it is not commercially advantageous for conduct yet more research rather than ask firms to address their needs. Regulators need Government to mandate this. Retailers using to be mindful of when self-regulation is likely traffic lights cover more than 40% of market to work or not, and they must be ready share, which represents significant progress, to intervene quickly and decisively when but the existence of different schemes self-regulation is failing. in other retailers risks confusing consumers. 6.9 As we noted in the section on legal 6.11 In relation to Scores on the Doors, consumer framework, FSA has an extensive toolkit groups have expressed scepticism that with respect to food safety, but it has few a voluntary approach to posting hygiene powers related to other matters. The Agency scores on business premises will be sufficient therefore relies on consumer empowerment to influence consumer behaviour. Consumer and encouraging voluntary approaches from and health groups also wanted the elimination the food industry in order to achieve its of artificial trans fats from food, in line with objectives. There is evidence that the FSA bans in New York and Denmark, which they has used its powers of persuasion effectively, felt would provide greater clarity for consumers for example it has gained public commitments and a level playing field for business. It is to programmes of salt reduction from impossible for us to say whether the FSA 70 food companies and representative has made the right judgement calls on these bodies, its traffic-light labelling scheme has decisions without examining the issues been adopted by more than 40 per cent of in detail, but it is important to record that the retail market and a voluntary approach this perception exists among some of its has also secured major reductions in levels consumer stakeholders. of trans fats. 31 Vulnerability 6.12 Consumer Focus has a particular interest • conducts consumer research specifically with in safeguarding the interests of individuals consumers who are vulnerable who face a higher risk of detriment due • effective engagement with representative to the particular situations they face as groups consumers. Consumers can end up being disadvantaged in markets either due to their • accounts for its activities to protect personal circumstances or as a result of the consumers who are vulnerable in the actions of providers. This may involve annual report a small or great many consumers, and people with different capabilities or • its website contains accessibility features circumstances, depending on the specific • trains staff on dealing with particular context. Firms may lack an incentive to groups of consumers address the needs of consumers whose needs differ from those of the average • educates business so they are sensitive to consumer, if this will cost them more than the needs of consumers who are vulnerable their standard product or service. Alternatively, firms may provide a tailored solution but • willing to intervene when the market charge consumers disproportionately more doesn’t deliver for it. Where consumers lack the ability to fend 6.14 The FSA has previously been criticised for themselves, we consider that all regulators on this aspect of its work. In 2005, the have a responsibility to intervene in order Dean Review found that the FSA needed to protect consumers in a position a better understanding of diverse consumer of vulnerability from detriment. interests, particularly groups who have little 6.13 To examine these issues, we brought or no representation, and did not always together representatives of organisations take into consideration the impact of that represent specific groups of consumers decisions on certain key consumer groups in a discussion group, examined the – particularly BME and low-income families. regulators’ annual reports and work plans Consumer Focus was pleased to find to find evidence of relevant initiatives and evidence of good progress in this area included this area for discussion in the staff since then. interviews. We developed with representative organisations some criteria to indicate if regulators are working successfully in this respect: 32 6.15 The FSA’s consumer engagement strategy • funded work with Fairbridge to learn more has a strand on ‘disadvantaged and about young people’s relationship with food vulnerable consumers’, which will be • worked in partnership with Mencap to look assessed by the ACCE. The Agency at the food concerns of those with mild, has re-defined its approach to this sector moderate and severe learning needs of consumers, moving away from an approach which viewed consumers 6.17 The FSA’s corporate plan and strategic plan as being disadvantaged or vulnerable solely contain references to specific issues related on the basis of their socio economic group, to vulnerability, such as projects on allergens, their ethnicity or geographic location. Instead, children and engagement with community the focus has shifted to look at consumers’ groups, but vulnerability is not a strong thread situations, circumstances and outcomes throughout these documents. Further, and not just their demographics. protecting the interests of consumers in a position of vulnerability is not an explicit 6.16 The FSA has piloted Action Research Studies criterion that the Agency uses to measure its in partnership with civil society organisations performance as part of the World Class in order to engage with consumers whose Regulator initiative. We would like to see voices it is difficult to capture through the the FSA introduce such a criterion. Therefore, traditional engagement routes and to make while the examples of consumer engagement connections with community networks above suggest that the FSA is sensitive who are working with some of the UK’s most to the needs of certain consumer groups, disadvantaged and vulnerable consumers. this work is not always as highly visible Some examples of these initiatives include: externally as it might be. • atypical scrapie – the FSA engaged with Caribbean and Muslim community groups whose members are more likely to eat mutton or goat meat which, because they are older meats, are more susceptible to atypical scrapie • commissioned work with the Ethnic Minority Foundation, who talked directly to Muslim women about their views on cooking and healthy eating • folic acid – the FSA engaged with women of conceivable age, particularly in lower socio-economic groups at risk of not having a balanced diet 33 Enforcement 6.18 Stakeholders told us the Agency does not 6.19 Building in the right incentives to encourage always take sufficient account of vulnerability compliance with rules is better than correcting considerations in its decision-making. problems after the event. Regulators should For example, some felt that the FSA’s use their sanctioning toolkit responsibly and decision not to recommend a ban on trans proportionately; however, when necessary, fats failed to take into account that some regulators should flex their enforcement sections of the population have intake levels muscles by clamping down hard on firms that exceed safe limits. The FSA have made that are careless or set out to deliberately clear to us that it considers this view to be harm consumers. To examine this aspect unfair. They point out that the National Diet of consumer-focused regulation, we looked and Nutrition Survey and Low Income Diet at regulators’ recent enforcement activity, and Nutrition Survey did not reveal significant sought the views of stakeholders and socio-demographic differences in trans fat included this area in the staff interviews. intakes, and that major manufacturers and 6.20 As we noted in the section on legal retailers have voluntarily decided to remove framework, food enforcement differs from the hydrogenated foods from their products. other markets in this study, as the regulations Once again, we do not offer a view ourselves for which the FSA is responsible are largely about the validity of the FSA’s decision enforced by local authority regulatory on this issue, but it is important that this services. The Agency has acknowledged perception, whether accurate or not, exists weaknesses in this area. In March 2008, among stakeholders. In order to ensure that a Board paper noted a ‘need to develop the FSA gives proper weight to vulnerability more effective partnership working with considerations, we would encourage the enforcement bodies… the need to develop Agency to introduce a vulnerability focus better working relationships with all local in its impact assessments. authorities remains’. 6.21 The Hampton Implementation Review found that the FSA has developed a good working relationship with local authorities and Local Authority Co-ordinators of Regulatory Services (LACORS). However, it also concluded that the FSA should seek to communicate its priorities to local authorities more clearly and seek to engage with them more as partners rather than agents. Further, it said that the current performance system for local authorities does not encourage them to adopt alternatives to ‘traditional’ inspection. 34 For example, because local outcomes 6.24 The FSA is seeking to address these issues are not measured (e.g. no assessment through its Changes to Local Authority of levels of food-borne illness) local authority Enforcement (CLAE) project. This aims performance is primarily judged on the to give local authorities greater flexibility number of inspections performed (within to deploy alternative enforcement strategies certain risk categories)6. and there is a new emphasis on working with food businesses to achieve compliance. 6.22 Local authority stakeholders we spoke The project encompasses a review of the to agreed with these findings. They told key processes that underpin the relationship us the FSA historically had a directive between the FSA and local authorities, approach to working with local authorities, including the Agency’s enforcement policy, which caused friction and squeezed out code of practice, audit arrangements and innovation. However, they acknowledged monitoring systems, and the Local Authority that the Agency was trying to move away Framework Agreement – the document from this approach, by placing more which sets out how food law should be emphasis on partnership working and enforced locally. allowing local authorities more freedom to choose their enforcement approach. 6.25 Enforcement is clearly a key factor in the Agency’s ability to deliver its consumer 6.23 Some consumer stakeholders view protection responsibilities. It is too early enforcement as a weak point in the regulatory to know whether the CLAE project will regime, but this is largely due to insufficient succeed in addressing the problems identified resources which are outside of the Agency’s by the FSA and its stakeholders. However, control. Local authorities are seen to lack it is encouraging that there appears to be the resources to cover the ground and take a consensus about the overall direction that on big business when necessary. Local the FSA is moving in and that it is conducting authority performance is seen as variable its review in partnership with local authorities and differences in approach that result from and other stakeholders. local delivery are considered to sometimes get in the way of achieving consumer outcomes, for example the various models used in the Scores on the Doors scheme. 35 7 Impact and learning 7.1 What we were looking for • defines and measures its impact on consumers in terms of outcomes • evaluates its work and embeds learning 7.2 What we found • an outcomes-focused language comes across clearly in the FSA’s strategic plan • the FSA displays examples of good practice in evaluating its work, both at organisation-wide and project levels. • the World Class Regulator initiative is an innovative approach 36 Outcomes: extracts from FSA Strategic Plan to 2010 Strategic target Enabling consumers to make informed choices • by the end of December 2008, we will Focus on outcomes recommend a national scheme for publishing information to consumers on 7.3 In order for regulation to achieve its purpose, food hygiene in food businesses, based it is important for all parties, and in particular on evidence from a series of pilots working the regulator, to constantly bear in mind in partnership with local authorities the reasons why the regulation has been introduced in the first place: that is, Why we do it the outcomes that regulation is designed to deliver, or to which it is designed to We have a statutory duty to protect the contribute. We looked at the FSA’s work interests of consumers in relation to food. plan and annual report to assess the Consumers need accurate information, extent to which its stated objectives are so that they can make informed and effective consumer-focused. An outcomes-focused choices about the foods they eat. Many language comes across clearly in the FSA’s things affect the choices people make and five-year strategic plan. A series of strategic in the future, developing technologies will targets are supported by text describing the widen the range of ways that information justification for intervention in a ‘why we do it’ can be delivered. Individual consumers section, plus a set of more detailed outcome may be particularly influenced by economic measures and performance indicators. or cultural factors, by their health or attitudes to health, or by their religious or ethical beliefs. 7.4 The Hampton Implementation Review We will need to take account of new concluded that the FSA had outcome- developments and changes in people’s focused objectives, but it could improve attitudes if we are to continue to protect the further by providing greater strategic interests of consumers in relation to food. direction to local authorities7. The Review Team said it was not clear that inspection What we want to achieve activity was being focused on the issues Effective labelling and information so that which pose greatest risk to the achievement consumers are able to make informed of the FSA’s strategic outcomes. For example, choices about the food they purchase, by: the data collected by the FSA to monitor the performance of local authorities was • working with local authorities to develop not related to strategic targets relating a national scheme to provide information to to food-borne illness. The FSA does not consumers on hygiene in food businesses appear to dispute this finding. In its World • pressing for simplification of existing EC Class Regulator initiative, the Agency said food labelling legislation within the that it needed to consistently apply a focus European labelling review, and encouraging on outcomes across all its enforcement activity. an approach that delivers clear labelling and information for the consumer • ensuring that the regulation of food supplements is based on the best available evidence, and is proportionate, for informed consumer choice 37 Measuring impact 7.5 In addition to target-setting in terms of outcomes, we also considered the way Good practice: World Class in which regulators report on the achievement Regulator initiative of outcomes, as a reflection of the extent The FSA has developed criteria that, taken to which these outcomes are the focus together, describe its aspirations as of regulatory activity, rather than the activity a world class regulator. It has self-assessed being an end in itself. It is notoriously difficult performance against each of the criteria to measure performance in this way, as often and used this assessment to identify those the outcomes being sought are somewhat areas where most development is needed. nebulous or intangible. In addition to this, in the vast majority of cases the outcomes The criteria reflect the Agency’s desire are influenced by a number of factors to achieve excellence across the whole including the actions of a number of regulatory chain – from design, different organisations and a range of to negotiation, to implementation, environmental and/or social factors. Despite to enforcement, with effective evaluation these difficulties it is important for regulators and feedback to close the loop. For each not to lose sight of their ultimate goals, and criterion, the FSA has looked for concrete to attempt to monitor progress towards them. examples of policies, activities and interventions that it has developed and 7.6 The FSA’s annual report records delivered in order to make an evidenced, performance against these outcome qualitative assessment. Performance is measures. As we highlighted earlier, the classified into three broad levels: Agency is also developing a framework in which local authorities measure performance • areas where we are already performing in terms of outcomes, for example by at a high level, which we need to maintain reporting on incidences of food poisoning • areas where our performance is satisfactory rather than frequency of inspections. Our – a focus for continuous improvement; and impression is that the FSA measures its impact in terms of outcomes across a range • areas where we need to develop our of areas, but this is not done in a systematic performance – a focus for step-change way across all of its work. We encourage the improvement Agency to learn from others in this area, such Performance areas assessed in the first as the Financial Services Authority’s two categories will be taken forward Outcomes Performance Report. internally with policy teams and the annual Simplification Plan, whereas performance assessed in the last of these categories will be taken forward through action plans. 38 Evaluation 7.7 Regulators should learn from their own 7.10 The FSA’s experience highlights how experience and that of others. In staff a commitment to independent evaluation interviews, we asked the regulators about can build stakeholder confidence and the systems they use to evaluate individual facilitate the acceptance of decisions. initiatives and their overall performance For example, the independent management as an organisation. panel set up by the Agency to evaluate the merits of different front-of-pack nutrition 7.8 The FSA shows some examples of good labelling models is designed to help build practice with respect to evaluating its work. agreement on a way forward based on a At an organisation-wide level, the Agency robust evidence base. Similarly, independent commissioned an independent review by evaluations of various local authority Scores Baroness Dean of its performance in its first on the Doors models have helped to identify years and produced an action plan to take the strengths and weaknesses of pilot forward the review’s recommendations. schemes and point the Agency in the The FSA has also developed its World Class direction of a preferred model. Regulator initiative, which self-reports on criteria developed by the Agency reflecting the need for excellence across the regulatory chain. We consider that this initiative represents good practice (see box, page 38). 7.9 At a project level, the FSA has commissioned independent evaluations of incidents, such as Sudan 1. It has made a commitment to use impact assessments for all significant new policy proposals and schedules evaluations into plans for all significant regulatory interventions. Where possible, the Agency has sought to measure the real impact of its work, for example following the salt campaign it surveyed urinary sodium to demonstrate a small but significant decrease in population average salt intakes. However, the World Class Regulator assessment notes that ‘robust evaluation remains an exception rather than a rule’. The FSA told us during interviews that an area they want to improve is being clearer in setting measures of performance and assessing whether the Agency is having an impact. We look forward to seeing the results of this exercise. 39 Appendix: Methodology The study took place during the period October 2007 to December 2008. It was conceived and developed by Consumer Focus’s predecessor organisation, the National Consumer Council, and operated in two main stages that are described in more detail below: • development of the assessment framework • fieldwork We established an independent expert panel, who advised us on our methodology and findings. We would like to put on record our appreciation for the time and assistance that the panel members gave so generously during the study. Independent expert panel An independent expert panel advised on the assessment framework and commented on a draft of our compendium report; however, the views expressed in the report are those of Consumer Focus and not of the panel. The panel members are senior figures from the worlds of government, academia, industry and consumer affairs that between them were able to bring a range of expertise and practical experience in regulatory matters. The panel members are: • Christine Farnish – Consumer Focus board member and Barclays PLC • Ed Humpherson – National Audit Office • Professor Bridget Hutter – London School of Economics • Jitinder Kohli – Better Regulation Executive • Stephen Locke – Consumer Focus board member and independent consultant • Professor Shamit Saggar – University of Sussex 40 Development of the assessment framework The assessment framework was • we undertook desk research to familiarise developed based on a combination ourselves with the consumer issues that of our own thinking about what it means the regulators were dealing with and the to be a consumer-focused regulator published opinions of scrutiny bodies and an examination of assessment models and other commentators. Sources included: used by others. Models that we examined external reviews by parliamentary include the Ofcom Consumer Panel Toolkit, committees and scrutiny bodies; the the Hampton Implementation Review regulator’s website and key corporate guidance and the Food Standards Agency’s documents; reports by consumer World Class Regulator Initiative. organisations and others; and press cuttings Two of the indicators – related to working • an analysis of each regulator’s establishing in a devolved setting and addressing the legislation needs of vulnerable consumers – were developed as part of discussion groups Our conclusions are based on evidence from held with experts in these fields. We are the sources listed above; we have sought grateful to these organisations for their to use corroborating evidence from more than valuable contributions. one source. Fieldwork Contact with the regulators We collected evidence over the course We contacted the six regulators included of 2008 using a range of sources and in the study in March 2008 to inform them techniques, including: of our proposed methodology and timetable. We shared with them a draft list • staff interviews – we spent approximately of the assessment indicators at introductory one day on site at each regulator meetings before commencing the fieldwork. interviewing senior staff nominated The regulators were invited to comment by the regulators on drafts of their individual reports in December 2008. • stakeholder opinion – we held a series of discussion groups and one-to-one We would like to place on record our thanks interviews with consumer and other to the staff we interviewed at the regulators, non-industry stakeholders operating all of whom were open and constructive in each sector. In addition, we held during the review process. a discussion group in Glasgow focusing on devolution issues and another one in London focusing on how the regulators meet the needs of vulnerable consumers • an omnibus survey of 1000 consumers was conducted in November 2008 41 References 1 Cabinet Office, Food Matters: Towards a Strategy for the 21st Century, 2008. 2 Better Regulation Executive and National Audit Office, Effective inspection and enforcement: implementing the Hampton vision in the Food Standards Agency, 2008. 3 Food Standards Agency, Corporate Plan 2007-2010, page 27. 13 FSA, Report from the Advisory Committee on Consumer Engagement, Board paper, December 2008 14 NAO, Protecting consumers? Removing retail price controls, March 2008 15 Better Regulation Executive and National Audit Office, Effective inspection and enforcement: implementing the Hampton vision in the Food Standards Agency, 2008. 16 Better Regulation Executive and National Audit Office, Effective inspection and enforcement: implementing the Hampton vision in the Food Standards Agency, 2008. 42 Tables i Postcomm’s website states “This website aims to conform to level Triple-A of the W3C Web Content Accessibility Guidelines 1.0”. Whilst there is no separate option to change the display colours, Triple-A conformance (which is self-certificated) should ensure that the website text is readable by users with visual impairments ii The Financial Services Authority’s corporate website states “We have endeavoured to ensure that the site is fully compliant with the recommendations laid down by the RNIB and by the World Wide Web Consortium’s Web Access Initiative”. It does not state which level of W3C compliance has been achieved. Whilst there is no separate option to change the display colours, any level of W3C conformance (which is self-certificated) should ensure that the website text is readable by users with visual impairments iii The Moneymadeclear website states “All web pages produced for this website … aim to meet the “AA” conformance level of the Web Content Accessibility Guidelines”. Whilst there is no separate option to change the display colours, Double-A conformance (which is self-certificated) should ensure that the website text is readable by users with visual impairments iv Access keys – these are keyboard shortcuts that can be used to navigate around a website, for users who have difficulty in controlling a mouse v Variable text size – we looked to see whether there is an option to change the text size within the website, or instructions about how to do this using the options in different internet browsers vi Colour options – we looked to see whether there are options to change the display colours, to assist people with partial sight or colour-blindness. Examples include high-contrast or text-only options vii Ofgem – the website states “We have tried to use combinations of colours that provide sufficient contrast between foreground and background across the sites. If you spot any pages that give you problems, we would like to know” viii Screen-readers use software which translates website text into audible synthetic speech, accessible via computer speakers or headphones. Screen-readers can also be used to translate website text into output for Braille display hardware. We looked to see if the regulators’ websites state that they are compatible with this software. Downloadable PDF documents are generally not compatible with screen-readers, so we looked to see if the regulators provide different formats or information about how to get PDFs converted to text format 43 ix Plain English consultation documents – we looked to see if consultation documents are available in plain-English versions so that they are accessible to a non-technical audience x Providing a textphone (Minicom) number allows those who are deaf or hard of hearing to contact the regulator 44 Consumer Focus Artillery House Artillery Row Westminster London SW1P 1RT Tel 0207 799 7900 Fax 0207 799 7901 Email firstname.lastname@example.org www.consumerfocus.org.uk Copyright Consumer Focus Published: February 2009 If you require this publication in Braille, large print, on audio CD or in an electronic format, please contact us.