Food fraud and the Fraud Act 2006

Abstract

Food fraud has not been sufficiently addressed as a policy (or scientific) construct despite anecdotal concerns about the scope of the phenomenon, and the extent to which it undermines industry and consumer trust. The number of food fraud prosecutions remains negligible with authorities pursuing food-related offences for administrative breaches such as traceability and inappropriate record keeping rather than fraud offences. A recent consultation on whether the National Food Crime Unit (NFCU) should be given investigative powers has made clear the will of key stakeholders not only to provide more enforcement authority to the NFCU, but also to prosecute ‘high profile’ cases to deter business actors. However, food fraud prosecutions face substantial difficulties. First, food-related offences have been predominantly framed, at the European Union and the UK levels, as ‘safety’ concerns within the General Food Law and the Food Safety Act 1990, rather than as criminal, fraudulent behaviours. Second, those responsible for prosecution are consequently predisposed to regulatory, rather than criminal law, interventions, with corresponding enforcement powers geared towards strict liability offences, rather than towards the pursuit of dishonesty as criminal behaviour. We argue that the Fraud Act 2006, together with the common law offence of conspiracy to defraud, provide a broader conceptualisation of fraud that is not limited to financial gains and may include a diversity of motivations and criminals. This chapter addresses the question of whether reliance on the Fraud Act 2006 for food-related fraud offences would enable the successful prosecution of food fraud. This question gains significance if the NFCU is granted with investigative and enforcement powers. Whilst this chapter does not argue a departure from the General Food Law Regulation (EC) 178/2002 and the Food Safety Act 1990, it is our contention that the Fraud Act 2006 complements and better informs the understanding, investigation and prosecution of food fraud.