Hygiene offences in the catering trade
The district of Göttingen frequently inspects catering establishments, with the result that many restaurants and food processing companies – including very well-known ones – are placed on a public list because they have been found to have committed hygiene violations.
This list includes information to the public about the exceeding of specified permitted limits, maximum levels or maximum quantities and the presence of unauthorised or prohibited substances as well as other violations of food safety regulations.
Regardless of the fact that the published information cannot be categorised as an official warning, the appearance of a business on this publicly accessible list of hygiene violations can damage its reputation and result in a considerable loss of sales.
If a breach of food hygiene regulations is detected , the authority can impose a fine ex officio for administrative offences. In the case of more serious offences, the authority forwards the relevant information to the public prosecutor’s office, which can then initiate a criminal investigation.
In individual cases, it is difficult for business owners to determine whether they have committed a criminal offence, as the provisions of the relevant Food and Feed Code (LFGB) are quite complicated.
This is why it is particularly important to seek legal advice if an investigation has been initiated. At the latest when a restaurateur has received a penalty order, he should contact a professionally experienced legal adviser. In this way, action can be taken against an imposed fine, but also possible secondary consequences, such as activity bans, can be avoided.
The law firm MPP advises and represents you in the best possible way if a fine has been imposed on you due to a possible hygiene offence or criminal investigation proceedings have been initiated.
For further information, read the interview with lawyer Karl-Heinz Mügge on the subject of “Hygiene offences in the catering trade”:
What sanctions can be imposed for breaches of food safety regulations?
Nationally, minimum and maximum sanctions for violations of food safety regulations and standards are regulated in the German Food and Feed Code (Lebensmittel-, Bedarfsgegenstände- und Futtermittelgesetzbuch – LFGB), among others. The Milk and Margarine Act (MilchMargG) and the Wine Act (WeinG), for example, also penalise violations of food safety regulations.
Sections 58 and 59 of the LFGB contain penal provisions that can be punished with imprisonment or a fine.
The law distinguishes between wilful and negligent violations of food safety regulations. According to Section 58 LFGB, an intentional offence is punishable by a prison sentence of up to three years or a fine and, in particularly serious cases, a prison sentence of six months to five years. Attempts are also punishable under Section 58 para. 4 LFGB. If one of the offences described in Section 58 (1) to (3) is committed due to negligence, Section 58 (6) LFGB provides for a custodial sentence of up to one year or a fine.
§ Section 60 L FGB covers various provisions on fines that can be penalised with a fine of up to one hundred thousand euros. It is an administrative offence, among other things, to commit certain acts specified in Section 59 through negligence. As the LFGB does not specify a different minimum fine, the fine pursuant to Section 17 (1) OWiG14 is at least five euros.
A secondary consequence of a criminal offence or administrative offence is the confiscation of objects (Section 61 LFGB) or bans on activities.
Who is responsible for food monitoring?
In Germany, food monitoring is the responsibility of the federal states. The Federal Office of Consumer Protection and Food Safety (BVL) explains:
“In Germany, responsibility for official food monitoring lies with the federal states. Monitoring is coordinated by the responsible state ministry or the responsible senate administration in the city states. The food monitoring and veterinary offices of the districts and independent cities take samples on site and inspect businesses. The official inspections cover all stages of food production: production and manufacturing companies are inspected as well as the storage, transport and sale of food and the catering trade. The businesses are inspected without prior notice at regular intervals or following information from consumers or third parties. Businesses that have already attracted negative attention are inspected more frequently.
The authorities monitor compliance with legal regulations with regard to the composition, health safety and correct labelling of food. The hygienic conditions and other aspects of food safety as well as the companies’ self-monitoring systems are also checked. Pathogenic germs, residues of pesticides, heavy metals and other undesirable substances are searched for. The composition and labelling of the products is also checked. If there are indications of a breach of existing regulations, the products are rejected and removed from the market if they pose a health risk.
If consumers have the impression that a food poses a risk to their health or does not fulfil the legal requirements in any other respect, they can contact the food monitoring and veterinary offices of the local authorities. The competent authorities are obliged to investigate such complaints.” (German Bundestag, Status of penalties and fines for food safety offences, p. 7).
