Fold Hill Foods Limited, R (on the application of) v The Food Standards Agency

In reviewing expert regulatory decisions involving complex scientific and predictive assessments, the court examines rationality and lawfulness in context, while allowing an enhanced margin of appreciation. That restraint does not permit the court to avoid asking whether the decision-maker made sufficient inquiries or irrationally treated materially different matters alike.

Under article 10 of Regulation (EC) 178/2002, whether there are reasonable grounds to suspect a risk, whether public-information steps are appropriate, and whether the risk has been identified to the fullest extent possible are objective questions. Public information must be effective and intelligible, rather than an academic exposition. Scientific uncertainty may justify precautionary action. The absence of definitive proof of causation does not establish the absence of a risk.

The claimant manufactured dry cat food. Following an outbreak of feline pancytopenia, the Food Standards Agency encouraged a voluntary recall of specified products and issued public updates advising cat owners not to feed the recalled food to cats.

The claimant challenged the Agency’s conduct on seven grounds, alleging unlawful compulsion of the recall, irrationality, breach of article 10 of Regulation (EC) 178/2002, interference with property rights, and failure to distinguish between brands or batches. The central issues were whether the Agency had exceeded its powers, whether its scientific and risk-management judgments were rational and lawful, and whether later information required revised public advice.

1. Recall. The Agency had no power to compel a recall, but the evidence showed that it had advised and encouraged the claimant to undertake a voluntary recall. It had not threatened to compel one. Ground 1 therefore failed.
2. Rationality and scientific judgment. The court’s task was to assess rationality and lawfulness, not the merits of the Agency’s decisions. The scientific and predictive context justified an enhanced margin of appreciation. That did not prevent intervention where the Agency failed to make reasonable inquiries or failed to distinguish materially different matters. The Agency’s approach to sampling, the possible combined effects of T2, HT2 and DAS mycotoxins, the EFSA guideline, epidemiological data, and the decline in cases after the recall was rationally open to it. A result below the EFSA guideline, or a negative individual sample, did not require a conclusion that the food could not have caused pancytopenia.
3. Article 10. The requirements of article 10 were objective and logically distinct from rationality. The Agency had to take appropriate steps to inform the public, identifying the food, risk and protective measures to the fullest extent possible. The information had to work in the real world and need not reproduce a technical academic analysis. In this case, the rationality of the updates strongly supported their appropriateness and adequacy under article 10.
4. Precaution. Articles 6 and 7 applied to pet food through the mutatis mutandis application of Regulation (EC) 767/2009. In any event, rational precautionary action could be taken in response to a potential animal-health risk despite scientific uncertainty.
5. Later updates and correspondence. The discovery of mycotoxins in a potentially affected batch of potato flakes did not make it irrational to continue advising against feeding all recalled products to cats. The absence of a definitive causal link was not evidence that no link existed. Nor was the Agency required to declare other recalled batches safe. All remaining grounds failed, including the property-rights claim, which was parasitic on the other grounds.

The claim was dismissed.

First-instance judicial review claim. No appellate history was stated in the judgment.