Summary of responses: Consultation on the draft Food Hygiene Rating (Online Display) Regulations (Northern Ireland) 2023

Northern Ireland specific

The draft Food Hygiene Rating (Online Display) Regulations (Northern Ireland) 2023 consultation was launched on 17 June 2022 and closed on 9 September 2022. The purpose of the consultation was to provide stakeholders with an opportunity to comment on the draft Food Hygiene Rating (Online Display) Regulations (Northern Ireland), and the potential impact on food businesses and district councils.

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Summary of stakeholder responses

The proposed regulations will:

Require an operator of a food business establishment, which supplies a consumer with food ordered via an online facility, to ensure that the facility displays an online icon (in the form of the online FHR) representing the valid FHR in respect of that establishment.
Prescribe the form of a valid Food Hygiene Rating icon.

The FSA is grateful to those stakeholders who responded and sets out in the table below responses in order of the issues considered.

The key proposals on which the consultation sought views were:

The draft Food Hygiene Rating (Online Display) Regulations (Northern Ireland) 2023, and
The Impact Assessment for the draft Food Hygiene Rating (Online Display) Regulations (Northern Ireland) 2023.

I think it covers most but not all businesses effect I think it should be expanded to include Social media Management firms

Response

Respondent: UK Hospitality 

Comment

UK Hospitality supports the definition of an online facility if it brings food businesses, such as sellers using online marketplaces, into scope. UKH members invest heavily in food safety and feel aggrieved to be competing against food businesses who may not. We welcome regulations that help to level the playing field. 

Response

Noted

For minimum disruption FSA recommends that chain supermarkets embed the JavaScript code (provided on ratings.food.gov.uk) for each relevant supermarket on their websites. This is because the code is developed to update automatically if the rating changes. It is therefore a one-off implementation.

Respondent: UK Hospitality

Comment

On the assumption that this is in addition to the appeal period, then we agree with the specific period for online display.

Response

Noted

Respondent: Just Eat

Comment

Just Eat currently has an API link with the FSA rating website which pulls Food Hygiene Rating (FHR) scores directly into our platform. We do however sometimes receive ‘invalid’ information basis due to bugs within the system. These are usually at Local Authority level and sometimes can take a considerable time to resolve. In such instances the food hygiene rating may still be appearing on the FSA rating website but cannot be pulled through correctly on the API link. In such instances the 7-day timescale may not be achievable or realistic and cannot be resolved by Just Eat or the food business.

In addition, the date detailed on the rating website is the date of the last inspection. How will the date of upload/publish be made available in order to be able to track the 7-day timescale?

Response

FSA is engaging with Just eat to resolve the issue raised in relation to 'invalid information'.

To aid compliance FSA recommends that food businesses embed the JavaScript code provided to them (on their rating page at ratings.food.gov.uk) where possible. This is because the code is developed to update automatically if the rating changes. It is therefore a one-off implementation for the business.

Respondent: Individual respondent 

Comment

Response

Noted

Respondent: MyFood Delivery 

Comment

It is not clear if this means at the top of the page or part of the ordering process 

Response

The regulations were drafted to be flexible enough to apply to the various online facilities used by food businesses therefore, the proposed regulations do not prescribe precise locations for display of food hygiene ratings. Businesses are free to display their rating in a location of their choice as long as it meets the proposed ‘readily seen and easily read’ requirement prior to the point of selection or order (whichever comes first in the user’s journey). 

Respondent: Asda 

Comment

Fundamentally we believe that the information should be held in the footer of our website. Our consumer insight constantly shows that the priority for our customers on our website is price, availability, delivery options and how intuitive the website is. FHRS is an important topic, but so are many other issues and we believe that the criteria for “readily seen and easily read” can be met in the footer of our site where a lot of important information is hosted. It is not ‘out of sight’ in our footer. It should also be noted that we operate a UK wide website and NI specific requirements is an added complication. 

Response

Independent research on consumer needs in relation to online display of food hygiene ratings has identified that consumers will use the FHRS in their decision-making process, however this information needs to be readily accessible as early in the customer journey as possible.  The focus-group based research highlighted that consumers felt suspicious when ratings were placed out of immediate sight such as in the footer of online platforms. Furthermore, FSA research carried out in 2021 found that 95% of respondents who had heard of FHRS thought that businesses providing an online food ordering service should display their food hygiene rating where it can clearly be seen by customers before they order food.  

With respect to the placement of the food hygiene rating, the proposed regulations do not exclude or prescribe any location on an online platform however, as a general guide, if the user can select food or place an order without the food hygiene rating being in their field of vision then the placement of that food hygiene rating would not be ‘readily seen’. The Food Hygiene Rating Scheme online display guidance (sets out how to display your food hygiene rating online and on social media in England, Wales and Northern Ireland) has been updated to include this advice.

Respondent: Deliveroo 

Comment

We think that the regulation could be improved in the following two ways: 

(a) amending the principle that a food hygiene rating must be “readily-seen and easily read” to one that is “readily-accessible and easily read”; and 

(b) clarifying that the food hygiene rating is available or accessible for viewing before food is seen/ordered in legislation, irrespective of the steps taken in the user journey (refer to the third bullet point under the heading ‘Website display’ of the current guidance) for online hygiene ratings. 

This is for four reasons: 

i) Online platforms should have the same flexibility as physical sites for ensuring that the icon is readily available and easily read without stringent prescriptions of where it must go. Physical restaurant sites have discretion over where in their entrance a rating should be displayed. Consumers of online services are aware that legally required information may often be re-grouped in a different part of a website (retailers will often have a ‘Legal’ or ‘important information’ section). Provided that this information is available to the consumer at any stage, we do not consider that it is appropriate to prescribe location of the food hygiene rating information for an online ordering experience. As above, we already take a number of steps to ensure the food hygiene standards of our partners and food delivered via Deliveroo is communicated to consumers. However, overly prescriptive regulation limits our ability to provide the best consumer experience possible and to judge how best to facilitate safe consumer choices. It will also likely limit operators’ ability to offer new ordering experiences with technological change (for example if ordering were to move to the virtual world or within the metaverse). In these circumstances, operators would require more flexibility in how such information is made accessible and the current  draft legislation is unlikely to be fit for purpose for such new technologies as it assumes that the user journey will always follow a linear approach. 

ii) There is a trade-off in mandating food hygiene ratings to be shown before food is ordered/selected: it might make calorie, allergen, and map information less prominent than it currently is on our app. We are currently responding to new UK legislation/consultations that would mandate calorie and allergen displays. Too much specificity over how each of allergen information, calorie amounts, and hygiene rating  must all be displayed will limit our ability to provide consumers with a clear and informative browsing experience. Regulators should take account of the cumulative impact of these measures to ensure they are complementary and not overly disruptive or confusing for consumers. 

iii) Customers can already filter and sort by hygiene rating before they select restaurants so they exclusively see 3, 4, or 5 rated restaurants. Customers easily know they are ordering from a restaurant which meets their desired hygiene rating criteria when using this filter and it is easier to filter by hygiene rating that it is in a physical environment. This additional prescriptive regulation is therefore unnecessary as consumers can make informed choices while using filters. 

iv) The FSA should consider the business and sales impact of its current guidance on how online ratings should be displayed. At present the suggestions of how to display ratings on Facebook or Twitter cover photos mean that hygiene ratings take up around a quarter of a restaurant’s cover photo. Online sites are a valuable way to portray a brand and attract customers: it is unreasonable to expect restaurants to devote some of the most valuable online advertising space to a hygiene display (especially when compared to a sticker taking up little space in a readily seen physical location). Regulation should take account of this and aim to minimise any potential sales impacts. 

We would prefer an approach that allows operators and restaurants to determine effective places to show hygiene ratings online rather than mandating specific parts of websites or apps. 

We would be happy to discuss this response or any of Deliveroo’s food hygiene initiatives further. 

Response

The proposed regulations were drafted with the aim of achieving continuity of display and consistency of approach across physical food business establishment and those who operate via an online ordering facility.  

Regulation 5 of the Food Hygiene Rating Regulations (Northern Ireland) 2016 prescribes that the Food Hygiene Rating Sticker must be displayed— 

(a) at or near each entrance to a food business establishment; and 

(b) where it can be readily seen and easily read by customers before they enter the establishment when it is open for business. 

As physical food establishments display their rating ‘at or near each entrance’, FSA considers that the online equivalent of this is prior to selecting or ordering food (this view was informed by the independent research).  The proposed location and manner of display ensures that the food hygiene rating is in the field of vision of the consumer before they place food items in their basket or order food, and they don’t have to seek it out. 

Independent research found that information needs to be immediately accessible to allow consumers to make “at a glance” or ‘snap’ decisions. The research also showed that participants largely viewed the concept of “clicking off” to another page as a “barrier. 

Amending the principle to ‘readily accessible and easily read’ for food businesses selling food online would not just result in disparity between a physical establishments and online food ordering facilities but would also present a barrier to consumers making informed decisions about where to order food online. 

With regard to new technologies, as it is not possible to discern the nature and extent to which online food ordering will develop into the future, the regulations will only apply to online food ordering facilities which fall within the current scope of the draft regulations.   

We acknowledge the importance of calorie and allergen information and their role in allowing consumers to make more informed choices. To minimise the space required for a Food Hygiene Rating, the FSA have developed a range of FHR icons. FSA welcomes feedback on the current images available and how they can be adapted to work better for you. 

While FSA acknowledges and welcomes adaptations of platforms to allow consumers to filter their choices according to their preferred rating, the aforementioned research has shown that due to the immediacy of online food ordering, participants preferred the rating to be displayed to allow ‘snap decisions’ to be made. Furthermore, FSA research carried out in 2021 found that of the respondents who had heard of the FHRS, 95% thought that businesses providing an online food ordering service should display their food hygiene rating where it can clearly be seen by customers before they order food. 

With regard to the FSA’s online display guidance, the suggestions illustrated are for guidance purposes only (the guidance will be amended to make this clearer to users). Businesses are free to display their rating in a location of their choice as long as it meets the proposed ‘readily seen and easily read’ prior to the point of selection, or order (whichever comes first in the user’s journey).  

The regulations do not mandate display for specific locations or parts of websites or apps, rather businesses are free to display their rating in a location of their choice as long as it meets the proposed ‘readily seen and easily read’ prior to the point of selection or order (whichever comes first in the user’s journey). 

Respondent: Uber Eats 

Comment

As currently constructed, the Regulations introduce a requirement for the app to display a visual FHR icon “prior to” the point at which food is selected. This would require either:  

a redesign of the app in Northern Ireland only; or

a UK-wide redesign of the app, each of which would place an undue burden on the app in its role as an intermediary for the duty of restaurants to display visible FHRs.

A redesign of the app in Northern Ireland only would act as a barrier to the even operation of the app across the UK. Similarly, the cost implications of a UK-wide redesign of the app to meet higher regulatory requirements in only one region of the UK, may remove incentives for operating in the local market.  

In this case, we advocate that regulations mandating the online display of FHR should support the current system of display within the app, where this is provided at point of choice in written form. The role of the Uber Eats app in facilitating FHRs Uber Eats currently facilitates the display of FHR for all restaurant partners on the app at the point at which food is selected. This is in written form at the bottom of the menu page. This written FHR display currently on the menu page meets most of the criteria in the proposed  regulations: 

● A clear representation of the restaurant’s FHR. 

● Has a link to the restaurant’s rating in full on the FSA website. 

● Is displayed at a position at the point of choice that is “easily seen and easily read”. 

Further, the FHR icon is currently available to view on the restaurant’s information page. This is accessible on the app to the customer if they click through on the restaurant’s information page, an option which is easily visible at the top of the menu page. 

The Uber Eats app therefore currently facilitates the provision of FHR for all restaurants using the app, and we would urge the FSA to review its proposals to allow such displays to meet its requirements. The legal requirement for restaurant partners to display their FHR online should reduce disruption to the delivery platforms, which support restaurant partners in fulfilling legal obligations. This should, as far as possible, be supported under the current format of a written display of the FHR on the menu page, and the FHR icon on the restaurant’s information page.

Response

It is a longstanding ambition of the FSA to introduce Food Hygiene Rating online display across all three countries (England, Wales and Northern Ireland). The guiding principles around display, as outlined in the FSA’s online display guidance (for businesses in Northern Ireland, Wales and England), are that the rating should; appear prominently so that it is readily seen, be adequately sized so that it is easily read and appear prior to the point where food is selected or ordered. Therefore, any redesign undertaken to meet the proposed regulations would be in line with the existing FSA online display guidance. 

In relation to undue burden on the app, an estimate of costs was outlined in the impact assessment (accompanying the consultation) and a request made for updated estimates in the event that these were inaccurate however FSA did not receive any suggestion to revise the estimated costs. FSA would welcome any further feedback in relation to costs outlined in the impact assessment. 

Regarding display of the FHR in written form, the proposed Food Hygiene Rating (Online Display) Regulations (Northern Ireland) were drafted with the aim of ensuring consistency and fairness of approach with regard to location and manner of display across physical and online businesses. Physical food business establishments are required to display their rating in the form of a food hygiene rating sticker at or near each entrance. To facilitate consumer recognition and ensure consumers associate the rating with the FSA’s Food Hygiene Rating Scheme, FSA has prescribed the key characteristics of the food hygiene rating icon within the proposed regulations.  

This approach has also been informed by independent consumer research which consistently showed that due to competing priorities while ordering food online, participants overwhelmingly preferred the Food Hygiene Rating itself to be displayed. In this regard the research highlighted the importance that consumers placed on clarity and visibility, and presenting FHRS information in an accessible, easy to use format. 

The above-mentioned research also showed that participants largely viewed the concept of “clicking off” to another page as a “barrier” to their potential usage of FHRS information citing that information needs to be immediately accessible to allow decisions “at a glance” and ‘snap’ decisions.  

Respondent: Just Eat 

Comment

Currently Just Eat displays the FHR of restaurants in a separate information section pop-up which details the address, opening times of the restaurant also.  This is available on the restaurant landing page and hence is available to the customer at the point of selection and prior to completion of the order.   

Display of the FHR icon ‘prior to selection’ would involve having the rating icon displayed on the first landing page, which lists all the restaurants near you as per your postcode, would entail substantial IT development and in turn cost.  In addition, the amount of screen space available at this point is limited especially in the case where a customer is using the app to order which again will impact substantially.  The definition of ‘relevant point’ requires review and amendment.   

The solution would have to be applied to all restaurants on the platform and not just those located in NI as it is not possible to provide two different tech solutions based on food business location.  This could severely impact our other restaurant partners located within England, Scotland and Wales where online display is not a legal requirement.  Indeed, the number of restaurants currently on our platform in NI equates to less than 2% of our total within the UK.   

Response

The proposed regulations specify that the FHR icon must be displayed prior to selection of food itself rather than selection of a restaurant.  

It is a longstanding ambition of the FSA to introduce Food Hygiene Rating online display across all three countries (England, Wales and Northern Ireland). The guiding principles around display, as outlined in the FSA’s online display guidance (which applies to businesses in NI, Wales and England) is that the rating should; appear prominently so that it is readily seen, be adequately sized so that it is easily read and appear prior to the point where food is selected or ordered. Therefore, any redesign undertaken to meet the proposed regulations would be in line with the existing FSA online display guidance. 

In relation to the suggested substantial IT development costs, an estimate of costs was outlined in the impact assessment (accompanying the consultation) and a request made for updated estimates in the event that these were inaccurate however FSA did not receive any suggestion to revise the estimated costs. FSA would welcome any further feedback in relation to costs outlined in the impact assessment. 

Respondent: UK Hospitality

Respondent: Individual respondent 

Comment

Response

Noted

Question 6:

Respondent: Individual respondent 

Comment

Response

Noted

Respondent: MyFood Delivery 

Comment

Response

Noted

Respondent: UK Hospitality 

Comment

The wording appears complex and difficult to follow. After several readings and discussion with our members, we believe we understand what types of online facilities are within scope. If this wording is retained, further guidance will be required. 

Response

FSA acknowledges the issue raised and will ensure that further advice on the types of online facilities is made available through guidance. 

Question 7:

a) Does the wording in regulation 3 (2)(b) make it clear who the regulations apply to?

b) Do you have any comments regarding regulation 3 (2)(b)?

Respondent: Northern Ireland Food Managers Group (NIFMG) on behalf of Environmental Health Northern Ireland (EHNI) 

Comment

EHNI is aware of the Food Standards Agency’s work with online aggregators and welcome the opportunity for District Council’s to participate in such workstreams. The willingness of online aggregators to display prescribed and valid food hygiene ratings is an important factor in the implementation of the online display regulations. EHNI would seek clarification on whether a failure to display a prescribed and valid FHR on an aggregator site constitutes an offence that can be enforced by a Fixed Penalty Notice (FPN), in that failure to display an icon at the relevant point is an offence by the FBO. As there does not appear to be any legal requirement in the draft regulations for aggregators to display ratings, EHNI are concerned that there may be some reluctance from aggregators to do so. FBO’s could be committing offences through no fault of their own.  

Clarification is being sought on the offence of failure to display a prescribed valid online food hygiene rating. The wording of the fixed penalty notice in Schedule 2 of the Food Hygiene Rating Regulations (NI) 2016 refers to the offence as failure to display an ‘online link’ contrary to section 10 (1) of the Food Hygiene Rating Act (NI) 2016. The draft online display regulations reference an ‘icon’. It is the understanding of EHNI that a link is only to be used by food business operators that have a chain of establishments as detailed in section 3(3) of the draft regulations.  

In Schedule 2 Part A of the Food Hygiene Rating Act should the FPN reference section 7(3) in the alleged offence for online display, in a manner similar to the reference of 7(1) in the alleged offence of failure to display a sticker? 

EHNI would welcome further engagement by the FSA with social media platform providers in order to address ongoing difficulties District Councils are experiencing with food traders using such platforms. It is envisaged that there may be an increase in complaints from consumers with regard to the display of a FHR by businesses selling via social media. Businesses may not provide all the necessary information on these platforms to enable District Council’s to identify where the business is operating from, leaving them unable to register the business or take appropriate enforcement actions. 

Response

Causeway Coast and Glens Borough Council would welcome further engagement by the FSA with social media platform providers in order to address ongoing difficulties District Councils are experiencing with food traders using such platforms. It is envisaged that there may be an increase in complaints from consumers with regard to the display of FHRs by businesses selling via social media. Businesses may not provide all the necessary information on these platforms to enable District Council’s to identify where the business is operating from, leaving them unable to register the business or take appropriate enforcement action. 

Response

FSA agrees with the issues raised in relation to the Fixed Penalty Notice (FPN). The FPN in Schedule 2 of the Food Hygiene Rating Regulations (NI) 2016 will be amended accordingly. 

Respondent: Derry City & Strabane District Council 

Comment

DCSDC is aware of the Food Standards Agency’s work with online aggregators and welcome the opportunity for District Council’s to participate in such workstreams. The willingness of online aggregators to display prescribed and valid food hygiene ratings is an important factor in the implementation of the online display regulations. DCSDC would seek clarification on whether a failure to display a prescribed and valid FHR on an aggregator site constitutes an offence that can be enforced by a Fixed Penalty Notice (FPN), in that failure to display an icon at the relevant point is an offence by the FBO. As there does not appear to be any legal requirement in the draft regulations for aggregators to display ratings, DCSDC are concerned that there may be some reluctance from aggregators to do so. FBO’s could be committing offences through no fault of their own.  

Clarification is being sought on the offence of failure to display a prescribed valid online food hygiene rating. The wording of the fixed penalty notice in Schedule 2 of the Food Hygiene Rating Regulations (NI) 2016 refers to the offence as failure to display an ‘online link’ contrary to section 10 (1) of the Food Hygiene Rating Act (NI) 2016. The draft online display regulations reference an ‘icon’. It is the understanding of DCSDC that a link is only to be used by food business operators that have a chain of establishments as detailed in section 3(3) of the draft regulations.  

DCSDC would welcome further engagement by the FSA with social media platform providers in order to address ongoing difficulties District Councils are experiencing with food traders using such platforms. It is envisaged that there may be an increase in complaints from consumers with regard to the display of a FHR by businesses selling via social media. Businesses may not provide all the necessary information on these platforms to enable District Council’s to identify where the business is operating from, leaving them unable to register the business or take appropriate enforcement actions.  

Response

FSA agrees with this assessment. The fixed penalty notice in Schedule 2 of the Food Hygiene Rating Regulations (NI) 2016 will be amended accordingly. 

Respondent: Fermanagh and Omagh District Council 

Comment

FODC is aware of the FSA work with online aggregators and welcomes the opportunity for DCs to participate in such workstreams. The willingness of online aggregators to display prescribed and valid food hygiene ratings is an important factor in the implementation of the online display regulations. The Council would seek clarification on whether a failure to display a prescribed and valid FHR on an aggregator site constitutes an offence that can be enforced by a Fixed Penalty Notice (FPN), in that failure to display an icon at the relevant point is an offence by the FBO. As there does not appear to be any legal requirement in the draft regulations for aggregators to display ratings, we are concerned that there may be some reluctance from aggregators to do so. FBOs could be committing offences through no fault of their own.  

Clarification is being sought on the offence of failure to display a prescribed valid online FHR (Food Hygiene Rating). The wording of the fixed penalty notice in Schedule 2 of the Food Hygiene Rating Regulations (NI) 2016 refers to the offence as failure to display an ‘online link’ contrary to section 10 (1) of the Food Hygiene Rating Act (NI) 2016. The draft online display regulations reference an ‘icon’. The Council understands that a link is only to be used by FBOs that have a chain of establishments as detailed in section 3(3) of the draft regulations.  

In Schedule 2 Part A of the Food Hygiene Rating Act, should the FPN reference section 7(3) in the alleged offence for online display, be in a manner similar to the reference of 7(1) in the alleged offence of failure to display a sticker?  

FODC would welcome further engagement by the FSA with social media platform providers in order to address ongoing difficulties DCs are experiencing with food traders using such platforms. It is envisaged that there may be an increase in complaints from consumers with regard to the display of a FHR by businesses selling via social media. Businesses may not provide all the necessary information on these platforms to enable DCs to identify where the business is operating from, leaving them unable to register the business or take appropriate enforcement actions. 

Response

FSA agrees with the issues raised in relation to the Fixed Penalty Notice (FPN). The FPN in Schedule 2 of the Food Hygiene Rating Regulations (NI) 2016 will be amended accordingly. 

Respondent: Lisburn & Castlereagh City Council 

Comment

LCCC is aware of the Food Standards Agency’s work with online aggregators and welcome the opportunity for District Council’s to participate in such workstreams. The willingness of online aggregators to display prescribed and valid food hygiene ratings is an important factor in the implementation of the online display regulations. LCCC would seek clarification on whether a failure to display a prescribed and valid FHR on an aggregator site constitutes an offence that can be enforced by a Fixed Penalty Notice (FPN), in that failure to display an icon at the relevant point is an offence by the FBO. As there does not appear to be any legal requirement in the draft regulations for aggregators to display ratings, LCCC are concerned that there may be some reluctance from aggregators to do so. FBO’s could be committing offences through no fault of their own.  

display regulations reference an ‘icon’. It is the understanding of LCCC that a link is only to be used by food business operators that have a chain of establishments as detailed in section 3(3) of the draft regulations.  

LCCC would welcome further engagement by the FSA with social media platform providers in order to address ongoing difficulties the Council is experiencing with food traders using such platforms. It is envisaged that there may be an increase in complaints from consumers with regard to the display of a FHR by businesses selling via social media. Businesses may not provide all the necessary information on these platforms to enable the Council to identify where the business is operating from, leaving them unable to register the business or take appropriate enforcement actions.

Response

FSA agrees with this assessment. The fixed penalty notice in Schedule 2 of the Food Hygiene Rating Regulations (NI) 2016 will be amended accordingly. 

Respondent: Mid Ulster District Council 

Comment

Mid Ulster District Council is aware of the Food Standards Agency’s work with online aggregators and welcome the opportunity for District Councils to participate in such workstreams. The willingness of online aggregators to display prescribed and valid food hygiene ratings is an important factor in the implementation of the online display regulations. Mid Ulster District Council would seek clarification on whether a failure to display a prescribed and valid FHR on an aggregator site constitutes an offence that can be enforced by a Fixed Penalty Notice (FPN), in that failure to display an icon at the relevant point is an offence by the FBO. As there does not appear to be any legal requirement in the draft regulations for aggregators to display ratings, Mid Ulster District Council is concerned that there may be some reluctance from aggregators to do so. FBOs could be committing offences through no fault of their own.  

Clarification is being sought on the offence of failure to display a prescribed valid online food hygiene rating. The wording of the fixed penalty notice in Schedule 2 of the Food Hygiene Rating Regulations (NI) 2016 refers to the offence as failure to display an ‘online link’ contrary to section 10 (1) of the Food Hygiene Rating Act (NI) 2016. The draft online display regulations reference an ‘icon’. It is the understanding of Mid Ulster District Council that a link is only to be used by food business operators that have a chain of establishments as detailed in section 3(3) of the draft regulations.  

In Schedule 2 Part A of the Food Hygiene Rating Act, clarification is also sought on whether the FPN should make reference to section 7(3) in the alleged offence for online display, in a manner similar to the reference of 7(1) in the alleged offence of failure to display a sticker? 

Mid Ulster District Council would welcome further engagement by the FSA with social media platforms providers in order to address ongoing issues District Councils are experiencing with food traders using such platforms. It is envisaged that there may be an increase in complaints from consumers with regard to the display of a FHR by businesses selling via social media. Businesses may not provide all the necessary information on these platforms to enable District Councils to identify where the business is operating from, leaving them unable to register the business or take appropriate enforcement actions. 

Response

FSA agrees with the issues raised in relation to the Fixed Penalty Notice (FPN). The FPN in Schedule 2 of the Food Hygiene Rating Regulations (NI) 2016 will be amended accordingly. 

Respondent: Newry Mourne and Down District Council 

Comment

Newry Mourne and Down District Council are aware of the Food Standards Agency’s work with online aggregators and welcome the opportunity for District Council’s to participate in such workstreams. The willingness of online aggregators to display prescribed and valid food hygiene ratings is an important factor in the implementation of the online display regulations. Newry Mourne and Down District Council would seek clarification on whether a failure to display a prescribed and valid FHR on an aggregator site constitutes an offence that can be enforced by a Fixed Penalty Notice (FPN), in that failure to display an icon at the relevant point is an offence by the FBO. As there does not appear to be any legal requirement in the draft regulations for aggregators to display ratings, Newry Mourne and Down District Council are concerned that there may be some reluctance from aggregators to do so. FBO’s could be committing offences through no fault of their own.  

Clarification is being sought on the offence of failure to display a prescribed valid online food hygiene rating. The wording of the fixed penalty notice in Schedule 2 of the Food Hygiene Rating Regulations (NI) 2016 refers to the offence as failure to display an ‘online link’ contrary to section 10 (1) of the Food Hygiene Rating Act (NI) 2016. The draft online display regulations reference an ‘icon’. It is the understanding of Newry Mourne and Down District Council that a link is only to be used by food business operators that have a chain of establishments as detailed in section 3(3) of the draft regulations.  

Newry Mourne and Down District Council would welcome further engagement by the FSA with social media platform providers in order to address ongoing difficulties District Councils are experiencing with food traders using such platforms. It is envisaged that there may be an increase in complaints from consumers with regard to the display of a FHR by businesses selling via social media. Businesses may not provide all the necessary information on these platforms to enable District Council’s to identify where the business is operating from, leaving them unable to register the business or take appropriate enforcement actions.  

Response

FSA agrees with the issues raised in relation to the Fixed Penalty Notice (FPN). The FPN in Schedule 2 of the Food Hygiene Rating Regulations (NI) 2016 will be amended accordingly. 

Respondent: Chartered Institute of Environmental Health (CIEH) 

Comment

This information is provided in Regulation 3 (2) (a) (i) and (ii). Regulation 3 (2) (b) refers to how online facilities within scope of the regulations will display the name of the business, an indication of the food the business supplies and the business’s valid food hygiene rating online icon. 

Response

Respondent: Individual respondent 

Comment

Response

Noted

Respondent: MyFood Delivery 

Comment

In general I think it is a good Idea but will be difficult to monitor and enforce. The food establishments with the high rating will embrace it and publicise their rating some already do. The ones with the low rating will be less likely to want to draw attention to it for obvious reasons. 

Response

FSA will be engaging with district councils to ensure preparations are made for the effective implementation of the proposed regulations prior to their coming into operation. Guidance and training will include consideration of the issues raised. 

Respondent: ASDA 

Comment

We are very grateful that this provision has been included, acknowledging that supermarkets are multi-site operators and delivery to a post code may be from different store location at different times for various reasons. The optimal solution here is that the hyperlink is to a list of the businesses establishments and their associated FHR hosted by the FSA, as they own the process and the real time information. 

Response

FSA recommends that food businesses, such as multi-site supermarket operators, embed the JavaScript code provided on ratings.food.gov.uk for each relevant establishment (i.e., the establishments which may fulfil the order). The code has been developed to update automatically if the rating changes and is therefore a one-off implementation. 

The proposed regulations impose the duty to display the food hygiene rating on the food business establishment only. 

Respondent: Just Eat 

Comment

This gives the large chain food businesses a distinct advantage over smaller independent food businesses in that their food hygiene ratings may not be readily available to the customer.  The likelihood of a customer clicking on a hyperlink is low and even when they do so they may then be provided with the FHRs for all the businesses within this chain.  This does not enable them to make an informed choice about where they are buying their food; the customer knows the name of the chain from which there are ordering but is still unaware whether their order is potentially coming from a food business with a 5* rating or a 1* rating. 

Currently all FHRs are visible to customers on Just Eat by clicking on an icon which results in a pop-up.  The customer remains on the same page and is not redirected.  Currently within the scope of the regulations this may not be compliant even though it is much more accessible and transparent for the customer than the above scenario involving a hyperlink.    

At Just Eat orders can only be fulfilled by the business which the customer has chosen.  Information in relation to the business name, address and FHR is currently already available to the customer to ensure transparency and permit them to make an informed choice about who they are ordering their food from.

Response

The regulations were drafted to be flexible enough to apply to the various online facilities used by food businesses. As it is not always feasible for certain businesses to know exactly what establishments food will be supplied from at the point where food is ordered online this was addressed in regulation 3(3). The proposed regulations require facilities operating in respect of a chain of establishments to display a ‘readily seen and easily read’ hyperlink. Therefore, the hyperlink must be in the immediate field of vision of the consumer, akin to the requirement for display for the rating icon for smaller independent food businesses.  

FSA acknowledges the issues raised here in respect to the consumer being directed to a list of establishments which are not relevant to their order. FSA will seek to ensure this concern will be addressed.  

Question 9:

a) Do you foresee issues with any of the proposed prescribed key branding parameters in Regulation 4? In particular, do you have any issues with the specification of the colour Green Pantone 376?

Response

FSA has developed a range of FHR icons/images which are available to download. The regulations do not mandate display for specific locations or parts of websites or apps so businesses are free to display their rating in a location of their choice to avoid the issues raised as long as it meets the proposed ‘readily seen and easily read’ prior to the point of selection or order (whichever comes first in the user’s journey).

Respondent: UK Hospitality 

Comment

Our members are concerned that valuable space, often on small screens, used for marketing and promotion is being used for regulatory purposes. It may have an adverse impact on the look and feel of key screens. 

Response

FSA acknowledges the issue raised. To minimise the space required for a Food Hygiene Rating, FSA has developed a range of freely available FHR icons/images. FSA encourages stakeholders to provide feedback on the icons/images available and how they can be adapted to work better for them (images can be accessed via the Food Hygiene Rating Scheme online display guidance published on the FSA website).

Respondent: Just Eat 

Comment

‘Awaiting Inspection’ and ‘Exempt’ are not included within the scope of regulation 4.  Just Eat currently displays these on the platform as again it provides consumer confidence that the food business is registered with their local authority.  Food businesses can also remain at ‘Awaiting Inspection’ for a considerable amount of time hence the importance of highlighting this to the customer.    

‘Readily seen and easily read’ is open to interpretation.  This again could be impacted severely .

Response

While the proposed regulations only apply to food businesses with a valid food hygiene rating, FSA welcomes the use of the ‘Awaiting Inspection’ and ‘Exempt’ icons where appropriate. FSA has developed a range of freely available FHR icons/images including ‘non-scored’ which are available to download. 

With respect to the location and manner of display of the food hygiene rating, as a general guide, if the user can select food or place an order without the food hygiene rating being in their field of vision then the placement of that food hygiene rating would not be ‘readily seen’. The Food Hygiene Rating Scheme online display guidance has been updated to include this advice. 

Additional final comments provided by respondents

Respondent: Northern Ireland Food Managers Group (NIFMG) on behalf of Environmental Health Northern Ireland (EHNI) 

Comment

EHNI would welcome guidance and/or training in evidence gathering for FHR offences committed online, particularly to ensure compliance with RIPA. Currently RIPA investigations require the agreement and sign off by a magistrate.  

EHNI would bring to the attention of the FSA that not all District Councils can carry out online monitoring checks due to internal security restrictions on their IT systems. The use of personal technology would not be acceptable for enforcement purposes. EHNI acknowledge that the additional funding can be used to facilitate exploration into overcoming these barriers however there are still concerns that District Council’s will have difficulty enforcing this legislation. 

EHNI would welcome further guidance on the use of fixed penalty notices to ensure consistency of enforcement among District Councils. Currently District Councils may operate different time scales for the enforcement of FPN’s based on internal procedures.  

EHNI are largely in agreement with the assessment of the potential impact and costs of implementation on food businesses and District Councils. EHNI acknowledge the additional funding given to District Councils for the 22/23 financial year is to accommodate the estimated costs. EHNI agree that the scoping estimate of 26% of businesses in NI that use an online ordering facility is low and would suggest a much greater per centage of food businesses will be required to display an online FHR.  EHNI note this is acknowledged by the FSA in the impact assessment in that the most up to date data is pre-pandemic and may not reflect the changes to consumer behaviour which resulted from the pandemic.  

EHNI also agree that in order to minimise impacts on District Councils in the monitoring and enforcement of the online display regulations, they should adopt a risk based and proportionate approach and target resources to focus on businesses that are non-broadly compliant. 

Response

FSA will provide training and guidance on the proposed legislation in the lead up to the coming into operation date.  

In order to address concerns regarding the Regulation of Investigatory Powers Act (RIPA) and the proposed regulations, more information on the nature of the concerns has been requested via Northern Ireland Food Managers Group (NIFMG).  

FSA acknowledges district council concerns regarding internal security restrictions on IT systems and have commenced discussions with district councils around this issue. FSA will continue to work in this area via the FSA’s online workstreams.  

Respondent: Ards and North Down Borough Council 

Respondent: Chartered Institute of Environmental Health (CIEH) 

Comment

We are aware that officers in some district councils may not be unable to monitor compliance with online display requirements due to security restrictions on their workplace IT systems. It may therefore be appropriate for the FSA to engage with local authority Chief Executives to explain the requirements and request that IT restrictions are removed for authorised officers to enable them to monitor business compliance with the regulations. It would not be appropriate to rely on officers using their personal IT equipment to monitor compliance, particularly as formal enforcement action may ensue. It is likely that the percentage of businesses who have an online ordering facility may have been underestimated in the impact assessment and may not reflect changes that have occurred in the consumer landscape post pandemic. This has been acknowledged by the FSA. We agree that district councils should adopt a risk based and proportionate approach to monitoring and enforcement of online display requirements and focus on those businesses that are not broadly compliant with food hygiene legislation. To ensure a consistent approach to enforcement across Northern Ireland, it is recommended that the FSA provides training to local authority officers on the implementation of the regulations, particularly on the use of fixed penalty notices, evidence gathering and RIPA. Further we recommend that district councils in Northern Ireland work collaboratively to ensure their procedures are aligned. CIEH is able to assist with training and would welcome the opportunity to discuss this with the FSA. 

Response

FSA will provide training and guidance on the proposed legislation in the lead up to the coming into operation date.  

Respondent: Uber Eats

Comment

We recognise that the food takeaway and delivery market has changed dramatically with the growth of technologies such as ours. The arrival of online platforms has supported restaurant revenue growth, particularly for small and medium sized businesses, at a time when high streets are under considerable pressure. The UK has been a leading innovator in this competitive sector that did not exist when food regulations were drafted in the late 1990s. As you look at how the FSA regulates for the future, we understand the need to consider the evolving role of online platforms. 

We are able to leverage our position as an intermediary to share food safety information with businesses and consumers in the supply chain. For example, we make information available to delivery partners to promote food safety through our online learning hub and have shared UK Hospitality guidance on allergens with food businesses using our app. We will continue to work with the FSA and industry bodies to share best practices with users of the Uber Eats app to raise awareness across the food sector. 

As online platforms continue to innovate, it may become increasingly challenging to apply laws drafted for traditional businesses, and a greater number of online platforms may fall outside of existing regulation altogether. We are concerned that this would not be in consumers’ interests and it risks creating ambiguity and complexity that would be challenging for businesses, the FSA, local authorities and consumers to manage. 

A distinct approach, addressing the particular risk profiles and features of online platforms, that applies universally and allows flexibility for the future, is therefore needed. 

Response

FSA will continue to engage and work with online platforms through the FSA’s online workstreams to address the issues raised. 

Respondent: UK Hospitality

Comment

Our members would like to see a specific statement that online screens used purely for marketing and promotion with no ability to order should be out of scope.   

Response

FSA can confirm that the regulations only apply where a food business establishment supplies food ordered via an online facility, as per regulation 3. 

List of respondents

Northern Ireland Food Managers Group (NIFMG) on behalf of Environmental Health Northern Ireland (EHNI)
Ards and North Down Borough Council
Armagh Banbridge and Craigavon Borough Council
Causeway Coast and Glens Borough Council
Belfast City Council
Derry and Strabane District Council
Fermanagh and Omagh District Council
Lisburn and Castlereagh City Council
Mid-Ulster Council
Newry Mourne and Down District Council
Chartered Institute of Environmental Health (CIEH)
Individual respondent
MyFood Delivery
Uber Eats
Deliveroo
Just Eat
UK Hospitality
ASDA