EEFW/S5/19/CSB/53

ECONOMY, ENERGY AND FAIR WORK COMMITTEE CONSUMER BILL SUBMISSION FROM Food Standards Scotland

1. What are your views on the Bill overall? How far do you think the Bill will achieve what it sets out to do? Are there gaps in the support currently available to consumers? How would Consumer Scotland fill these gaps? What priorities should Consumer Scotland have?

Food Standards Scotland has a statutory duty to protect consumers’ interests in relation to food and feed. Food Standards Scotland welcomes measures which aim to further protect consumers’ rights and serve consumers’ interests in Scotland. We welcome the Representative function (section 3) as that has the potential to provide information to enhance the understanding of consumer needs and interests that we gather through our own research.

However, we believe there is an opportunity for the Bill to be clearer on the scope of the new Consumer Scotland body in terms of its role, if any, in relation to food and potential consumer harm arising from food and drink. Greater clarity on this point would be beneficial to help avoid duplication of existing effort, and avoid the risk of confusion amongst the public.

By way of background, Food Standards Scotland was established by the Food (Scotland) Act 2015. It is a non-ministerial public body, and part of the Scottish Administration, directly accountable to the . The 2015 Act gives FSS three statutory duties: i. To protect the public from risks to health which may arise in connection with the consumption of food, including risks caused by the way in which food is produced or supplied; ii. To improve the extent to which members of the public have diets which are conducive to good health; and iii. To protect the other interests of consumers in relation to food.

2. The recognises that there are already many organisations working with consumers in Scotland. The Bill would therefore require Consumer Scotland to work in collaboration with other bodies where appropriate. How does Consumer Scotland fit in with other bodies operating in this sector? How could Consumer Scotland help streamline services? Will the legislative provisions ensure Consumer Scotland does not duplicate existing work?

The Bill as drafted does not explicitly recognise the statutory remit and responsibilities of regulators such as Food Standards Scotland and the provisions do not define the specific remit of Consumer Scotland, leaving too much room for interpretation and a strong possibility of duplication of existing work. This may not need to be included in clauses in the proposed Bill (see below), but if this is not recognised with the Bill, then there would be benefit in ensuring there is the ability to provide clarity through secondary legislation. There is the risk of confusion amongst the public as to where Consumer Scotland fits alongside established general consumer advice and advocacy bodies such as Citizens

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Advice Scotland and Which?. The roles and responsibilities of Consumer Scotland in relation to sector-specific organisations with a consumer protection role, such as Energy Action Scotland and Food Standards Scotland, also have the potential to create confusion amongst consumers as to which organisation to turn to for advice and support. There are a variety of existing bodies which have been set up with specific consumer advice and advocacy objectives in Scotland and it is vital that the gap Consumer Scotland aims to fill is clearly articulated and communicated to the public and stakeholders. Food Standards Scotland would support a public information campaign to explain what Consumer Scotland is here for, and what it is not, planned around the launch of the new body. Associated communications would clarify the roles and responsibilities of other bodies including Food Standards Scotland which is, it could be argued, a main consumer stakeholder organisation as defined in the SPICe briefing, within this space. Food Standards Scotland has a statutory duty to protect consumers’ interests when it comes to food, and will work in collaboration with Consumer Scotland, but it is recommended that the legislative provisions set out in the Bill be tightened as suggested above to clarify the scope of the new organisation and to avoid crossover and duplication. Section 6(3). Consumer Scotland must have regard to the activities carried on by other public bodies with the same functions as, or similar functions to, Consumer Scotland, and to the desirability of working in collaboration with others where appropriate. Food Standards Scotland suggests that this requirement be strengthened to make it clear that Consumer Scotland is expected to take into account and avoid conflict with the responsibilities, powers and statutory activities of regulators. Section 8, particularly (1), (2)(a) & (b), 5(a), 6(a) & (b). This section allows for Ministers to designate regulators and providers of regulated products or services, and for Consumer Scotland to serve notices on either to provide information. It is important that the Bill makes clear that the manner in which this power is exercised (especially because it is to serve notices on businesses as well as regulators) does not hamper regulators’ actions in pursuit of their statutory responsibilities. Equally, it would be important not to confuse accountabilities. As an NMO, FSS is directly accountable to Parliament so would be concerned if there was any suggestion of a shift in that accountability. Section 13(3). Consumer Scotland is required to prepare and publish an annual work programme, and “in preparing the work programme must have regard to the views of persons bodies and organisations having an interest in consumer matters”. This is a welcome provision, but Food Standards Scotland recommends the Bill requires that Consumer Scotland have regard to the views of, and recognise the remit of, those bodies that regulate areas that Consumer Scotland proposes to include in its work programme. “Consumer Scotland has wide ranging powers to represent the interests of consumers in both regulated and unregulated markets, and on issues (such as the poverty premium) which cut across markets;” Scottish Ministers have the power to legislate for product safety in relation to food and animal feed as part of their devolved powers. This includes the power to legislate for domestic enforcement arrangements, via regulation or by enhancing the powers available to enforcement officers, such as environmental health officers. Food Standards Scotland 2 Food Standards Scotland EEFW/S5/19/CSB/53 and Local Authorities are defined in law as a ‘competent authority’ and an ‘enforcement authority’ to implement and monitor food and feed regulations. Food Standards Scotland also ensures that the interests of Scotland are reflected in UK negotiating positions that are fed into European Union policymaking on the regulation of food. Food is the key area in relation to product safety and protecting consumers from harm where the consumer power is devolved. Hence it is important to ensure there is appropriate separation in law between food and other areas where consumers may require to be protected from harm to ensure the statutory responsibilities between Food Standards Scotland and Consumer Scotland are clear. “Consumer Scotland works with other consumer advice providers towards a single portal for consumer advice, to increase access and ensure high-quality, consistent provision across Scotland;” Food Standards Scotland would prefer to have more clarity on the Information function (section 5) before being able to welcome this function. As a consumer-focused organisation specifically established to protect the consumer’s interests with respect to food, by regulation, policy making, and provision of advice to Ministers, policy-makers, other stakeholders and consumers, we welcome initiatives to further protect and advise consumers. However, we would not wish to see this function exercised in a way that causes confusion or undermines functions already set out in statute.

Providing a central portal for consumer advice across topics is one practical means by which Consumer Scotland can help streamline services for the end user. However, it would be anticipated that this portal would not replace other sources of information such as Food Standards Scotland’s extensive , food authenticity and diet and nutrition advice found at its website, but would repurpose some of this content and direct from the portal to other sources of information. Where food is concerned, it will be important to direct consumers to Food Standards Scotland, given our statutory role and remit to take action where there is potential for harm to consumers, and would not wish confusion in the consumer advice landscape to delay such action.

The Policy Memorandum also “acknowledges the important role consumers play in… changing behaviours (such as tackling unhealthy eating…)”. Promoting diets conducive to good health and working in consumers’ best interests in regard to matters related to nutrition and healthy eating is one of the cornerstones behind the establishment of Food Standards Scotland, so it would be helpful to clarify the remit of Consumer Scotland in this regard.

3. The Bill would provide Consumer Scotland with powers to provide advice; represent the views of consumers; collect information; organise research; and carry out investigations. Scottish Ministers are able to add to, vary or remove functions as required. Do you think Consumer Scotland has the necessary powers to make a difference to consumers in Scotland?

The Bill provides Consumer Scotland with the power to carry out investigations. Food Standards Scotland would welcome greater detail on and definition of these powers within the Bill to ensure there is no duplication. Food Standards Scotland is concerned that the Research and Investigative function (section 4) could conflict with our own specific

3 Food Standards Scotland EEFW/S5/19/CSB/53 regulatory responsibilities and investigative functions and those of other food and feed enforcement bodies.

The Scottish Food Crime and Incidents Unit includes the investigations and intelligence- gathering arms of Food Standards Scotland. It focuses on tackling food crime and maintaining consumer protection.

Its remit in relation to food, drink and animal feed is to prevent, investigate and disrupt serious and/or complex fraudulent conduct and serious and/or regulatory non-compliance involving dishonesty in relation to the Scottish food and drink industry.

The Unit has a dedicated Intelligence Office which analyses, develops and actions information received from members of the public, food business operators and industry whistle-blowers.

The Investigations team investigates instances of food crime. It may also support Local Authorities with enquiries into serious breaches of food safety and assist with complex and protracted investigations. The Investigatory Powers Act 2016 (IPA) invests powers to Food Standards Scotland to acquire communications data, in respect of its criminal investigations. The Regulation of Investigatory Powers (Scotland) Act 2000 (RIP(S)A) also gives Food Standards Scotland powers to carry out covert surveillance in relation to criminal investigations.

4. Consumer Scotland would have a duty to consider the interests of vulnerable consumers, including disabled, older, low income and rural consumers. Do you think the creation of Consumer Scotland will make a difference to your consumer problems, or the problems of the consumers that your organisation deals with?

Food Standards Scotland considers the interests of vulnerable consumers and the impact on the equalities gap throughout its work. However, the organisation welcomes Consumer Scotland’s role as a champion of more ‘at risk’ groups and any guidance, research and evidence it can supply on how to narrow inequalities. This could be a key role for the organisation and would potentially benefit a number of consumer protection organisations. The definition of ‘vulnerable consumers’ contained within the Bill could, however, either be removed or clarified further, given as drafted it gives an incomplete and incorrect definition of the term. 5. Most consumer protection powers are reserved to the UK Parliament. Consumer Scotland won’t be able to change reserved laws or require UK-wide bodies to do anything. Will this limit how effective it can be? How should Consumer Scotland tackle consumer issues which are affected by reserved powers? It is important to bear in mind that food and animal feed is a devolved policy area and that FSS is already a Scottish body established specifically to protect consumers’ interests in relation to food and feed. Hence it is important for the Bill to make clear that Consumer Scotland’s investigation, research and reporting should focus on other areas not related to food, and could highlight differences and concerns in order for Scottish Government to be able to influence UK consumer protection policy and legislation.

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6. The Scottish Government intends that information about consumer problems will be widely shared between organisations so that action can be prioritised (see the Policy Memorandum, paragraphs 21 and 22). There are legal and organisational barriers to this sort of information sharing. Do you think it can be achieved in practice?

Given the barriers to data sharing and the limits imposed by GDPR regulation, other means to achieving this objective may need to be investigated. For example, consumer research and evidence could be shared between organisations. Having the capacity and expertise to champion social research and co-ordinate this across consumer protection organisations in order to deliver better outcomes for vulnerable groups could be considered as one measure of success for the new Consumer Scotland. “Collecting information about consumer matters and investigating practices which may cause consumer harm;” This function again requires clearer definition to avoid crossover with the investigative functions of other bodies such as Food Standards Scotland. Also, please see point 3. above. 7. The Bill creates a new duty on public bodies to consider the impact of their policies on consumers. How can Consumer Scotland ensure that this makes a practical difference to consumers? How do you think the duty should operate?

With reference to section 20, it is important to allow for public bodies to consider and decide whether a formal assessment under this duty is required. For Food Standards Scotland, and any other body that might be set up explicitly to protect consumer interests, the duty is part of founding legislation and runs through everything that they do. There is, in such cases, no need to require a formal assessment to be undertaken or published.

8. Are there any other aspects of the Bill you would like to comment on?

Nil response.

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