Friends of the Earth, R (on the application of) v Food Standards Agency

In reviewing an agency’s response to an emergency food-safety measure, the court must ask whether the agency identified the correct legal question and took reasonable steps to obtain relevant information. Where the governing measure leaves implementation to the member state, the agency may exercise judgment as to the appropriate response. It may consider scientific evidence, uncertainty, costs, benefits, practical feasibility, the scale of exposure and relevant requests for intensified controls. The absence of a demonstrated health risk does not remove the obligation to implement the measure, but it may inform the proportionality and intensity of the response. Judicial review allows an agency a margin to make policy decisions and reasonable mistakes. Delay or shortcomings will not justify relief unless they amount to an unlawful failure to discharge the legal obligation.

Friends of the Earth sought judicial review and a declaration concerning the Food Standards Agency’s response to European Commission Emergency Decisions following the discovery of unauthorised genetically modified rice in imported American long grain rice. The claimant alleged that the Agency had failed to investigate rice already in circulation, issue food alerts, guide local authorities, sample downstream products and keep its policy under review.

The Agency accepted an early error in its advice but maintained that it had taken proportionate measures within its statutory role, including controls at ports and rice mills and engagement with major retailers and manufacturers. The central issue was whether the Agency’s conduct amounted to an unlawful failure to implement Article 3 of the Emergency Decision.

1. Claim dismissed. The claimant had not established an unlawful failure by the Food Standards Agency to implement Article 3 of the Emergency Decision. The court refused declaratory relief.
2. The applicable judicial-review question was whether the decision-maker had directed itself properly in law, considered the matters required by the governing instrument and taken reasonable steps to acquaint itself with relevant information. That approach was stated in Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014.
3. Article 3 required appropriate measures, including random sampling and analysis, concerning products already on the market. It did not prescribe one particular method of implementation. The Agency was entitled to assess the response by reference to the available evidence of health risk, scientific uncertainty, costs and benefits, practical feasibility, the likely scale of exposure in the United Kingdom and the Commission’s requests for intensified controls.
4. The Agency’s statutory functions under the Food Standards Act 1999 included advising and guiding public authorities, monitoring enforcement and setting standards. It was an important part of the United Kingdom’s response, but it did not have a monopoly of responsibility. Food operators and local authorities also had relevant duties, while other government departments had roles to play.
5. The Agency’s early advice had wrongly implied that contaminated products could remain on sale because shelves were not to be searched. That error was corrected. The Agency could also have acted more quickly and firmly in advising local authorities, issuing an alert or identifying contaminated batch codes. Those shortcomings, considered individually and cumulatively, did not make the overall response unlawful.
6. The Agency was entitled to take account of the European Food Safety Authority’s statement that consumption of trace levels was not likely to pose an imminent safety concern, while recognising that the statement did not establish complete safety. The Agency retained a margin within which it could make policy judgments and reasonable mistakes without legal sanction.