Food Safety Act 1990: Offences, Notices and Your Defence

By Zynthio. Published 17 September 2026. Editorial policy

General information for UK hospitality operators, not legal advice. If something here is wrong or out of date, the editorial policy explains how to report it.

The Act sets the offences, the notices and the one defence that matters. Here is what it asks of an operator, and what the records have to show.

An improvement notice served under the Food Safety Act 1990 has to allow a period of not less than 14 days to put the failure right, and failing to comply with it is itself an offence. That is how most operators meet the Act: a short list of offences, a notice an officer can serve, and one defence won or lost on records written long before anybody asks to see them. This article covers what the law treats as unsafe or misdescribed food, what an officer can do about it short of a prosecution, and what section 21 asks a business to prove.

What the Food Safety Act 1990 covers, and what it leaves to regulations

The Act is a framework rather than a manual. It creates the offences, gives food authorities their enforcement powers and sets out the defences, while the day-to-day rulebook sits in regulations made under it.

The division is visible in section 10 itself. The improvement notice power applies to regulations under Part II of the Act which make provision for requiring, prohibiting or regulating the use of any process or treatment in the preparation of food, or for securing the observance of hygienic conditions and practices in connection with the carrying out of commercial operations with respect to food or food sources. The Act supplies the machinery; the hygiene regulations supply the detail an officer measures a kitchen against.

Running alongside both is the general food law duty in Article 14 of Regulation (EC) 178/2002, which is where the modern unsafe food test lives. Meeting the specific rules is not a complete answer to it: conformity of a food with specific provisions applicable to that food shall not bar the competent authorities from taking appropriate measures to impose restrictions on it being placed on the market, where there are reasons to suspect that, despite such conformity, the food is unsafe.

When food counts as unsafe

Food shall not be placed on the market if it is unsafe, and food shall be deemed to be unsafe if it is considered to be injurious to health or unfit for human consumption.

Injurious to health is a health-effects test, and it is not measured only against the average customer: regard is had to the particular health sensitivities of a specific category of consumers where the food is intended for that category of consumers. That is why a dish sold as free from an allergen is judged against the people who ordered it, the same discipline as allergen management under Natasha’s Law.

Unfit for human consumption is a condition test. Regard is had to whether the food is unacceptable for human consumption according to its intended use, for reasons of contamination, whether by extraneous matter or otherwise, or through putrefaction, deterioration or decay.

Two further rules decide how far a problem travels. Regard is had to the normal conditions of use of the food by the consumer and at each stage of production, processing and distribution, and to the information provided to the consumer, including information on the label. And where unsafe food is part of a batch, lot or consignment of food of the same class or description, it shall be presumed that all the food in that batch, lot or consignment is also unsafe.

Section 14: when the food is not what was demanded

Section 14 is the provision operators least expect, because it has nothing to do with dirt. Any person who sells to the purchaser’s prejudice any food which is not of the nature or substance or quality demanded by the purchaser shall be guilty of an offence, and in that subsection the reference to sale shall be construed as a reference to sale for human consumption.

Nor is it an answer that the buyer was never going to eat it: in proceedings under that subsection it shall not be a defence that the purchaser was not prejudiced because he bought for analysis or examination.

For a restaurant that makes section 14 a menu problem as much as a kitchen problem. Three ordinary things sell food that is not what was demanded: a substitution made at six o’clock that nobody wrote on the board, a specials card that outlived the delivery it described, and a cut quietly downgraded to hold a margin. None of them involves a dirty surface.

The control is dull and it works: one person owns the menu, every change reaches the board and the till before service starts, and the printed description matches the specification the kitchen is cooking to.

What enforcement looks like before a prosecution

Enforcement starts well below prosecution. If an authorised officer of an enforcement authority has reasonable grounds for believing that the proprietor of a food business is failing to comply with any regulations to which the section applies, the officer may serve an improvement notice on that proprietor.

The notice has to state the officer’s grounds for believing that the proprietor is failing to comply with the regulations, specify the matters which constitute the proprietor’s failure so to comply, specify the measures which, in the officer’s opinion, the proprietor must take in order to secure compliance, and require the proprietor to take those measures, or measures which are at least equivalent to them, within such period (not being less than 14 days). Any person who fails to comply with an improvement notice shall be guilty of an offence.

Read that as a checklist rather than a formality: a notice that does not say what the failure is, or what would cure it, is not giving the business what the section says it should get.

The Food Hygiene Rating Scheme runs from 0 to 5 in England, Wales and Northern Ireland, while Scotland uses the Food Hygiene Information Scheme, a pass or improvement required result rather than a number, and both rest on what the officer saw, as our guide to improving an FHRS score sets out.

The due diligence defence in section 21

Section 21 is why food safety records exist in the form they do, and its wording is exacting. It is a defence for the person charged to prove that he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence by himself or by a person under his control. The burden sits with the business rather than the prosecutor, and those last words put staff conduct inside the test.

Where the fault lies elsewhere, the section gives a further route to a seller who neither prepared the food in respect of which the offence is alleged to have been committed nor imported it into Great Britain. That seller can establish the defence by proving that the commission of the offence was due to an act or default of another person who was not under his control, that he carried out all such checks of the food in question as were reasonable in all the circumstances, and that he did not know and had no reason to suspect that his act or omission would amount to an offence.

That is a documented supplier regime, the argument for supplier approval and traceability as a record. A procedural condition comes with it: the person charged shall not, without leave of the court, be entitled to rely on that defence unless a notice in writing identifying that other person has been served on the prosecutor at least seven clear days before the hearing.

What the defence looks like in a records file

Due diligence is not a document. It is a system that was running on the day in question, and the proof of it is a record made at the time by somebody named. Three tests decide whether a file holds up.

1. Contemporaneous. A temperature written when it was read is evidence; a column filled in on Sunday for the whole week is an admission. The habits behind that are in our guide to temperature monitoring and the cold chain.
2. Attributable. Every entry carries a name, so the business can show who checked, who supervised, and who was under its control when it was signed.
3. Honest about failure. A record showing only passes reads as a record nobody used. An out-of-range reading, the corrective action and the sign-off afterwards show a system working, which is what a HACCP plan an EHO will respect is built to produce.

Keep the supporting paperwork in the same place: delivery checks, supplier specifications, training records, cleaning verification, pest reports. The reason for filing it together is set out in our piece on the due diligence defence, and the discipline of never letting it lapse in our guide to staying inspection-ready all year.

What to do this week

Take one trading day from last month and reconstruct it from the records alone: who opened, what was checked, what failed, what was done about it, who signed it off. If that needs a phone call to a manager, the defence is not in the file.

1. Read a week of your own checks as a prosecutor would, looking for gaps, identical handwriting and passes without a single exception.
2. Name the person accountable for each record on each site, and say who covers them.
3. Check that every failed check has a corrective action and a sign-off attached to it.
4. Pull your supplier specifications and confirm they match what is on the menu today.

Zynthio’s food safety software replaces the paper SFBB pack with phone-completed checks and an EHO-ready record: it timestamps and names every entry, raises a corrective action automatically on an out-of-range temperature, and exports six weeks of records as a PDF. Zynthio is not a legal adviser and no system guarantees compliance with the Act; what a good record does is make the account of a given day retrievable when somebody asks for it.

See how Zynthio handles this