The Pig Swill Ban – A Sledgehammer to Crack a Nut?

Gerry A. Danby

February 2015

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The Pig Swill Ban – A Sledgehammer to Crack a Nut?

Gerry A. Danby

1 Introduction

The population of the world is projected to reach 9.1 billion by 20501 and stabilise later this

century at between 10 and 11 billion people.2 In the second half of this century we will have at

least another three to four billion mouths to feed compared to the number we have today. A

rise of over 50%. Total food production stands at about four billion tonnes, yet it is estimated

that we waste between 30-50% of what we produce.3 It requires only a rough and ready

calculation to appreciate that, if we can make significant inroads into the elimination of food

waste, we can go a long way to producing enough food for all our future needs. Indeed, there

is a view widely held that:

With new technology, waste along the human food supply chain could be used as a substitute for cereal in animal feed. The available cereal from such alternatives and efficiencies could feed all of the additional 3 billion people expected by 2050.4

It is not surprising that addressing food waste is a topic of the moment. A great many people

and organisations are devoted to finding ways in which we can reduce the amount of food

wasted across the whole food chain. This study is concerned with one aspect of food waste;

the feeding of processed catering waste, or swill feed, to animals and, in particular, pigs. The

practice was banned in May 2001.5 The climate engendered by health scares throughout the

previous decade, notably Bovine Spongiform Encephalopathy (BSE) in cattle played a big

part but the ban itself was almost entirely attributable to the devastating foot and mouth

disease (FMD) outbreak earlier in February that year.

1.1 A brief history of FMD

Cattle, sheep and pigs are particularly susceptible to the highly contagious FMD virus which:

… causes an acute disease of cloven-hoofed animals characterized by fever, lameness and vesicular lesions of the feet, tongue, snout and teats. These debilitating effects, rather than high mortality rates, are responsible for severe productivity losses …6

1 Nikos Alexandratos, ‘Countries with Rapid Population Growth and Resource Constraints: Issues of Food, Agriculture, and Development’, Population and Development Review, Volume 31(2), 2005, pp237-258 2 Will Steffen and others, ‘The Trajectory of the Anthropocene: The Great Acceleration’, The Anthropocene Review, 16 January 2015, doi: 10.1177/2053019614564785, 2015, p9 3 United Nations Food and Agriculture Office, Food Wastage Footprint: Impacts on Natural Resources, FAO, 2013 4 Christian Nelleman (editor), The Environmental Food Crisis: The Environment’s Role in Averting Future Food Crises, A UNEP Rapid Response Assessment, 2009, p19 5 The Animal By-Products (Amendment) (England) Order 2001 SI 2001/1704 prohibited feeding catering waste to livestock whether processed or unprocessed. 6 J Arzt and others, ‘The Pathogenesis of Foot-and-Mouth Disease I: Viral Pathways in Cattle’, Transboundary and Emerging Diseases, Volume 58, Issue 4, August 2011, p291

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FMD first appeared in Britain in 1839 but while highly contagious most observers noted that

infected animals quickly recovered and lost only 5% of their value. Throughout the mid-

nineteenth century FMD became so prevalent that it was considered unavoidable and all

cattle would, at some point contract the disease. It was, when judged against the standards of

the day, seen as a mild ailment.7

In 1865, after a gap of almost 100 years, Britain suffered from an outbreak of the equally

contagious but highly fatal rinderpest or cattle plague which caused the deaths of 7 per cent

of the national herd.8 Legislation introduced to combat rinderpest9 brought FMD and other

contagious diseases within its remit, albeit subject to a lesser degree of control. Regulations

required a whole herd to be slaughtered where one or more cattle was found to have

rinderpest.10 The debate raged over whether FMD should continue to be subject to regulation

or revert to its former status as a benign ailment. The Royal Veterinary College (RVC)

maintained that FMD was not a dangerous disease and wide-ranging control measures were

not necessary.11

Science, however, did not underpin FMD controls and the view that it was a foreign plague to

be subject to stringent control took hold. This view combined with the fact that provision for

FMD had already been made within legislation ensured that the perception of FMD as a

serious plague-like disease became a self-fulfilling prophecy:

[FMD] became increasingly feared and was eventually seen as one of the world’s worst animal plagues, a highly contagious and economically devastating ailment akin to the cattle plague. It was in this sense that FMD was ‘manufactured’. FMD-as-plague wasn’t always ‘out there’ in nature, awaiting discovery by enlightened individuals. It was a new creation, a by-product of the processes involved in its control. And as this new vision of FMD grew in strength, its social origins were gradually obscured, until it came to be viewed as an incontrovertible fact of nature.12

The belief in FMD-as-plague took hold at the start of the twentieth century and formed the

basis of control measures. The periods when FMD was absent were taken as confirmation the

controls were working but it inevitably returned, sometimes with a vengeance as it did in

1922-24, 1943, 1952, 1967 and 2001. The case for vaccination was a much debated in 1952,

the first serious challenge to the Ministry of Agriculture and Fisheries’ (MAF) slaughter

policy in decades but the status quo prevailed and the policy remained in 2001.

History shows that the foot and mouth disease research station at Pirbright was set up in 1924 as a result of criticism of the Ministry of Agriculture's "primitive slaughter policy". Nothing much seems to have changed in the intervening period. Despite the development of vaccines on the Continent in the 1930s and 1940s, the ministry refused to allow their use, preferring instead to slaughter thousands of animals in the major outbreaks that occurred in 1952 and 1967.13

7 Abigail Woods, A Manufactured Plague: The History of Foot and Mouth Disease in Britain 1839-2001, Earthscan, 2004, pp2-3 8 Abigail Woods (2004), p10 9 Contagious Diseases (Animals) Act 1869 10 Clive A Spinage, Cattle Plague: A History, Kluwer Academic, 2003 11 Abigail Woods (2004), p13 12 Abigail Woods (2004), p16 13 Second Reading of the Animal Health Bill in the House of Lords, The Countess of Mar, HL Deb 14 January 2002, vol. 630, col. 911

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In 2001 the FSA was swift to reassure the public and issued a press statement on 21

February, the day following first confirmation of FMD, which made it clear that FMD does

not pose a threat to food safety and has no implications for the human food chain.14 The

Department for Environment, Food and Rural Affairs’ (Defra) most recent Foot and Mouth

Disease Control Strategy for Great Britain reiterates this advice:

FMD is not considered a public health threat. The Food Standards Agency advice is that FMD is not transmitted to humans through the food chain.15

Figure 1 - One of many pyres set up to destroy slaughtered livestock, this one is in Essex.

FMD is an animal disease which represents an economic threat, the scale of which depends

on how an outbreak is managed. The cost of the 2001 outbreak totalled over £8 billion,

involved the slaughter of millions of animals and images of horror and devastation across the

British countryside which will be etched on the memories of many for years to come.

1.2 Impact of the ban on catering waste

The United Kingdom ban on the use of catering waste in animal feed took effect on 24 May

2001.16 The European Union followed the lead given by the UK and a ban throughout Europe

was shortly implemented.17 The change brought a swift end to a practice which had been

widespread in England for hundreds of years. Throughout the world pigs have lived

alongside people for over 9,000 years consuming the refuse and detritus people leave

behind.18

The loss of animal feed is only a part of the equation, the diversion of catering waste to

landfill has a significant negative environmental impact and, even where diverted for use as

14 Food Standards Agency, Foot and Mouth Disease FSA Statement, 21 February 2001 15 Defra, Foot and Mouth Disease Control Strategy for Great Britain, November 2011, p8, para 2 16 The Animal By-Products (Amendment) (England) Order 2001 SI 2001/1704, r1(1) 17 Regulation (EC) 1774/2002, laying down health rules concerning animal by-products not intended for human consumption, took effect on 1 July 2002. 18 Tristram Stuart, Waste: Uncovering the Global Food Scandal, Penguin Books, 2009, p243

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biomass in the production of energy, there remains a significant economic loss. This fact is

clearly recognised in Directive 2008/98/EC on waste which established the waste

hierarchy.19 When applied to food, it becomes a food use hierarchy with prevention at the top

and landfill disposal at the bottom.20 The redistribution of catering waste to animal feed

comes second only to prevention in the hierarchy.

Figure 2 – The food use hierarchy

A recent study commissioned by Defra looked at the evidence and considered options for the

future management of food waste.21 The study concluded that the estimated benefit of food

waste used as animal feed when compared to being sent to landfill was in the region of £24

per tonne of food waste. The diversion of food waste to anaerobic digestion (AD) gave rise to

an estimated benefit of £16 per tonne. While both offer a positive return, the difference

between them is significant. Furthermore, there is greater uncertainty associated with the

realisation of AD benefits and, finally, the disparity increases as the cost of cereal based

animal feed continues to rise.22

In addition to economic considerations there are environmental factors to take into account.

Since the end of the nineteenth century cheap grain has become increasingly available, with

a lull only during the two world wars when grain was needed to make bread to feed the

population at home.23

The combined effect of the ban on feeding processed animal protein (PAP) to livestock

19 Directive 2008/98/EC, Article 4 20 House of Lords, Counting the Cost of Food Waste: EU Food Waste Prevention, European Union Committee, 10th Report of Session 2013-14, HL Paper 154, The Stationery Office Limited, 6 April 2014, pp44-45 21 Defra, Recycling of Catering and Food Waste, Project Code FO0218, FERA, 2013 22 Ibid., p20 23 Malcolmson R and Mastoris S, The English Pig: A History, Hambledon and London, 2001, pp1 23-126

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introduced across the EU in 200124 and the subsequent ban on feeding catering waste25

resulted in a deficiency in animal feed protein equivalent to 2.9 million tonnes of soymeal.

EU imports of soymeal increased by 3 million tonnes between 2001 and 2003.26 In 2007 the

then 27 countries of the European Union together imported over 40 million tonnes of soy

products, most originated from Brazil and Argentina.27

The cultivation of cereals, including soybeans, is one of the main causes of rainforest

deforestation in Brazil and a major contributor to climate change. The Amazon rainforest has

lost 18% of forest cover since 1970 and, despite recent attempts to reduce the rate of decline,

losses still proceed at a rate around 5,000 km2 a year.28 This increased production and

shipment of soybeans has a significant environmental impact in terms of the erosion of

biodiversity, pollution and greenhouse gas emissions.29

The bans on PAP and catering waste in animal feed took no account of these wider economic

and environmental impacts which were bound to follow. Furthermore, a door to the future

more efficient use of catering waste in animal feed was closed in favour of an increasingly

unsustainable alternative of cereal production.

In a recent 2014 report, the House of Lords’ European Union Committee noted that:

There is a lack of clarity on the science relating to the feeding of catering waste to animals and of non-ruminant processed animal proteins to non-ruminants, such as pigs. We recommend, as a matter of urgency, specific review of the applicable legislation with a view to assessing recent scientific work and identifying gaps. A lifting of either restriction should only be considered if proven to be safe, and if the appropriate systems, including enforcement, are in place.30

This study reviews the ‘applicable legislation’ with reference to some significant scientific

work but, more importantly, considers the rationale for the ban in 2001. The question is

whether, notwithstanding the enormity and impact of the FMD outbreak that year, the ban

was ever really justified in the first place - a sledgehammer to crack a nut?

2 The Feeding of Catering Waste to Pigs in 2001

There is hardly a process involved in the production of food which does not carry some

degree of food safety risk. The general food Regulation (EC) 178/2002 explicitly recognises

24 Regulation (EC) 999/2001 laying down rules for the prevention, control and eradication of certain transmissible spongiform encephalopathies 25 Regulation (EC) 1774/2002 laying down health rules concerning animal by-products not intended for human consumption 26 Henning Steinfeld and others, Livestock’s Long Shadow: Environmental Issues and Options, Food and Agriculture Organization of the United Nations, Rome, 2006, p50 27 Jan Willem van Gelder, Karen Kammeraat and Hassel Kroes, Soy Consumption for Feed and Fuel in the European Union, A research paper prepared for Milieudefensie (Friends of the Earth Netherlands), 28 October 2008 28 Projeto Prodes: Monitoramento da Floresta Amazônica Brasiliera por Satélite <<http://www.obt.inpe.br/prodes/index.php>> accessed on 10 January 2015 29 Henning Steinfeld and others (2006), p50 30 House of Lords, Counting the Cost of Food Waste: EU Food Waste Prevention, European Union Committee, 10th Report of Session 2013-14, HL Paper 154, The Stationery Office Limited, 2014, p40, para 127

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this fact31 and the EU food hygiene package32 is in large part based on the management of risk

in the production process. In 2001 these measures were yet to come, but the importance of

risk management had been acknowledged in the 1990s and there was a growing awareness of

the approach embodied in Hazard Analysis and Critical Control Points (HACCP) which is

now a legal requirement.33

The feeding of catering waste to pigs had long been the subject of regulation. In 2001 the law

was to be found in The Animal By-Products Order 199934 which was preceded by the Animal

By-Products Order 199235 and related regulations. The 1999 Order gave effect to Council

Directive 90/667/EEC, which laid down rules for the disposal and processing of animal

waste, and a range of other Commission decisions.36 The 1999 Order provided a framework

of controls to mitigate risks associated with feeding processed catering waste to pigs.

What happened in practice can be discerned from reports which considered the

circumstances surrounding the outbreak of FMD that year, in particular the report of the

Parliamentary and Health Service Ombudsman37 on considering complaints made by the

Associated Swill Users (ASU) on behalf of members aggrieved at the lack of compensation

for the loss of their businesses as a consequence of the prohibition on swill feed in 2001.

2.1 The law regulating the use of catering waste Under the 1999 Order catering waste, subject to limited exceptions, could be fed to pigs

when processed as prescribed.38 The feeding of catering waste from ships and aircraft to

animals was prohibited.39 More generally known as international catering waste (ICW) this

was collected under licence and disposed of by incineration or landfill since, because the

waste came from beyond domestic and EU borders and so may not have been subject to the

same level of controls, it is considered a potential carrier of disease and poses a significant

risk to animal health if not dealt with effectively. ICW was later classified Category 1 material

presenting the highest level of risk under EU legislation which followed.40

The 1999 Order provided that ‘catering waste’ means,41 where no longer intended for human

consumption, the following:

a) Waste from catering and domestic waste.

31 Regulation (EC) 178/2002, Article 3(14) 32 Regulation (EC) 852/2004 on the hygiene of foodstuffs, Regulation (EC) 853/2004 laying down specific hygiene rules for food of animal origin and Regulation (EC) 854/2004 laying down specific rules for the organisation of official controls on products of animal origin intended for human consumption. 33 Regulation (EC) 852/2004, Article 5 requirement to maintain a permanent procedure or procedures based on Hazard Analysis and Critical Control Points (HACCP). 34 SI 1999/646 came into force on 1 April 1999 and was made pursuant to the provisions of ss1, 8(1), 87(2), (3) and (5)(a) and 88(2) and (4)(a) of the Animal Health Act 1981 35 SI 1992/3303 36 Decision 92/562/EEC, Decision 94/382/EC, Decision 95/29/EC and Decision 96/449/EC all of which concern the approval of heat treatment systems in processing animal waste. 37 Parliamentary and Health Service Ombudsman, The Introduction of the Ban on Swill Feeding, 1st Report, Session 2007-08, HC 165, The Stationery Office, 2007 38 The Animal By-Products Order 1999 SI 1999/646, articles 3, 22, 23 and Schedule 5 39 Ibid., article 20 40 Regulation (EC) 1774/2002, Article 4(1)(e) and now contained in Regulation (EC) 1069/2009, Article 8 41 Op. cit., article 3(1)

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b) Waste from the production of products intended for human consumption without

further cooking.

c) Waste from the production of bread, cakes, pasta, pastry, pizzas and similar products (whether or not intended for human consumption without further cooking).

Feed ‘swill’ comprised non-mammalian animal by-products rendered as prescribed42 and

catering waste processed in accordance with Schedule 5 to the 1999 Order which, in

summary, provided:

1. Catering waste must be processed in approved premises43 which are adequately

separated from other buildings and the public highway. Unauthorised persons and animals must not enter the premises and animals must not have access to unprocessed catering waste. Preventive measures against birds, rodents, insects and other vermin must be taken. Flooring must be impervious, cleanable and laid so that liquids cannot seep from the unclean into the clean area.

2. There must be a clean area and an unclean area. The latter must be easy to clean and disinfect, and have a covered place to receive and store unprocessed catering waste. Adequate hand washing facilities must be provided. Unprocessed catering waste must be processed immediately or stored in suitable containers and processed without undue delay. Processed waste must be handled and stored in the clean area in such a way as to preclude recontamination and must not be allowed to come into contact with any unprocessed catering waste.

3. Persons who have been in the unclean area must not enter the clean area without first disinfecting or changing their footwear and outer clothing. Similarly, equipment and utensils which have been in the unclean area must not be taken into the clean area unless suitably cleansed and disinfected.

4. Catering waste must be processed for at least 60 minutes at a temperature of not less than 100°C or by an alternative approved method.

5. The premises must have adequate facilities (including a water supply) to enable the premises, containers and vehicles to be cleansed and disinfected. Vehicles used to transport catering waste must be cleansed and disinfected before entering the clean area or, where they do not enter the clean area, before leaving the premises. Containers used for catering waste must be cleansed and disinfected after each use. The premises must be cleansed at the end of each day on which processing takes place.

6. The premises must have a suitable cooker with measuring equipment, calibrated at regular intervals, to check that catering waste is processed to the required temperature. Installations and equipment must be kept in a good state of repair.

There were additional requirements for the transport of unprocessed catering waste44 and in

relation to the keeping of records45 including the date on which incoming waste arrived,

42 Op. cit., article 3(1), Schedule 2, Part I, para 5 43 Op. cit., article 22(1) 44 Op. cit., article 21 45 Op. cit., article 24

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address of the premises from which it was collected, quantity and description of the waste

and the name of the haulier who transported the waste.

The arrangements were comprehensive. The key requirement was that set out in paragraph 4

above concerning the heat treatment of catering waste. The failure to process infected

catering waste adequately could result in survival of the FMD virus and future infection.

The feeding of catering waste to ruminant animals was prohibited46 but processed catering

waste or swill could be fed to pigs and poultry.47 The prohibition on feeding catering waste to

ruminant animals was a part of the controls introduced to contain and eradicate BSE which

dominated the 1990s. The outbreak was believed to have been caused by meat and bone meal

(MBM) derived from sheep which was contaminated with scrapie disease. The evidence

indicated that feeding rendered bovine MBM to young calves exacerbated the problem. Cows

and other ruminants are herbivores, they have not evolved to eat other animals or animal

protein in ruminant feed, which had become a common industrial farming practice. BSE

proved transmissible to humans and in 1995 the first three deaths of young people from

variant Creutzfeldt-Jacob disease (vCJD) occurred.48

Pigs and poultry, on the other hand, are both naturally omnivorous. They forage widely in

the wild eating almost anything and everything, pigs are even known to eat other dead pigs.

Pigs and poultry have evolved to eat animals and animal protein. The distinction between

ruminant animals and pigs and poultry under the 1999 Order was entirely rational and

defensible.

The 1999 Order was made under the Animal Health Act 1981 which provides that a person

who, without lawful authority or excuse, does anything which under the Act or an order

made under the Act is declared to be not lawful, commits an offence punishable on

conviction with a fine up to Level 5 on the standard scale.49 Level 5 at that time provided for

a maximum fine of £5,000.

The appropriate Minister was responsible for enforcement of the 1999 Order in specified

premises producing meat for human consumption, otherwise this task fell to the local

authority.50 Inspectors had powers of entry under the Animal Health Act 198151 and the 1999

Order made further provision for inspectors to carry out inquiries, examinations and tests,

take samples and examine and copy records. The occupier of any premises was required to

render reasonable assistance.52

2.2 The enforcement of swill processing regulations

In 2001 there were 74 premises licensed to process swill and a further 19 licensed to feed

swill. The Associated Swill Users (ASU) represented 62 licensed swill processors.

46 Op. cit., article 19(1) 47 Op. cit., article 26 48 Anna Rovid Spickler and James A Roth (editors), Emerging and Exotic Diseases of Animals, 3rd edition, Institute for International Cooperation in Animal Biologics, 2006, pp73-77 49 Animal Health Act 1981, s75(1)(a) 50 Op. cit., article 33 51 Animal Health Act 1981, s63 52 Op. cit., article 29

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Catering waste was collected from schools, hospitals, restaurants and other establishments

and transported to premises licensed to process the waste before being consigned to licensed

swill feeding premises and fed to pigs.

The State Veterinary Service (SVS),53 an executive agency of the Ministry of Agriculture

Fisheries and Food (MAFF),54 was responsible for the prevention, detection and

management of animal diseases in livestock and undertook regular inspections and testing

for this purpose. The SVS was responsible for animal welfare under the Animals Act 1911 and

farmed livestock under the Agricultural (Miscellaneous Provisions) Act 1968. It also dealt

with the approval and licensing arrangements under the 1999 Order and monitored

compliance through inspection. While MAFF could initiate prosecutions for animal welfare

offences, formal enforcement action fell to the local authority under the terms of the Animal

Health Act 1991 and the 1999 Order.55 In connection with their animal welfare

responsibilities:

SVS staff were given instructions and guidance on enforcement and legal proceedings, which set out the relevant legislation and powers under which enforcement action could be taken and the process to be followed. The guidance said that in every case where SVS staff found an apparent contravention of legislation they should inform the person concerned that the matter would be reported to the Divisional Veterinary Manager (DVM). A report should then be submitted promptly in writing and the DVM would then consult his or her Regional Manager on the line of action to be taken.56

No guidance or instructions existed in relation to the approval and licensing activities of field

staff. The established practice was, however, to follow a similar approach. Where clear non-

compliance with the 1999 Order was identified a warning would be issued to the farmer and

follow-up visits made. In the absence of adequate improvement a formal report would be

made to a senior manager who may take the matter up with local authority trading standards

or environmental health officers, according to whom this responsibility had been entrusted.57

SVS instructions said that operators who processed catering waste into swill had to be inspected four times a year (once by an SVS vet and three times by a technical officer). Operators who did not process catering waste, but who collected fully processed catering waste (swill) for feeding to their pigs, had to be inspected twice a year (by a SVS vet), in order to ensure that they were keeping to the conditions set out in their licences.58

The question is whether this framework of controls was sufficiently robust and, if so, whether

effective monitoring and enforcement in fact took place.

3 The Circumstances Surrounding the FMD Outbreak in 2001

The legal framework for processing catering waste and MAFF’s operational guidance having

53 Later renamed Animal Health which in 2011 merged with the Veterinary Laboratories Agency to form the Animal Health and Veterinary Laboratories Agency (AHVLA). 54 The Department for Environment, Food and Rural Affairs was formed in June 2001 when MAFF was merged with a part of the Department of Environment, Transport and the Regions (DETR) and a small part of the Home Office. 55 Op. cit., article 33 56 Parliamentary and Health Service Ombudsman (2007), p6, para 10 57 Ibid., p7, para 12 58 Ibid., p9, para 17

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been established we now consider what happened in practice. A little background and

context helps set the scene.

3.1 The background and context

Reported cases of food poisoning more than tripled during the 1980s59 and frequent food

scares received much media attention. Ever since Edwina Currie MP proclaimed: "Most of

the egg production in this country, sadly, is now affected with salmonella",60 to the furore of

the nation’s egg producers, one food scare has followed another. Throughout the 1990s two

food scares which dominated the news were a cause for grave concern: an outbreak of E. coli

food poisoning in Scotland and Bovine Spongiform Encephalopathy (BSE) in cattle,

otherwise known as ‘mad cow disease’.

In 1997 the largest ever outbreak of E. coli O157 food poisoning in the UK occurred in

Wishaw, Scotland. A total of 496 cases of infection were reported, 282 were confirmed and it

claimed the lives of 18 people. A major enquiry under the auspices of Professor Hugh

Pennington61 followed which reported in 1998.

BSE was first identified in cattle in 1986 but it took 10 years before the Government

announced, in March 1996, that a probable link between BSE and variant Creutzfeldt-Jakob

disease (vCJD), a rare and fatal human neurodegenerative condition, had been established.

The BSE Inquiry under Lord Philips reported on 26 October 2000. The report had a big

impact on the public consciousness and arrived a few short months before FMD hit the

headlines early in the following year.

These events ensured that public sensitivities surrounding food safety were high and when

the General Election came in 1997 it was a leading topic on the political agenda. The

Rowntree Trust had commissioned Professor Philip James of the Rowett Research Institute

in Aberdeen to make recommendations on a new agency to promote food safety.62 The

Labour Party took up the James proposals:

Labour will establish an independent food standards agency. The £3.5 billion BSE crisis and the E. coli outbreak which resulted in serious loss of life, have made unanswerable the case for the independent agency we have proposed.63

James identified weaknesses in the administrative structure regulating the food system.

MAFF was conflicted, a new body which separated protecting public health and safety from

that of promoting business was required. The outcome was the Food Standards Act 1999

which gave rise to the Food Standards Agency, the new body having primary responsibility

for food safety. Ministerial responsibility rested with the Secretary of State for Health and

the devolved administrations in Scotland, Wales and Northern Ireland.

59 Audit Commission, Safer Food: Local Authorities and the Food Safety Act 1990, HMSO, 1990, p3 60 BBC, On this Day, 3 December 1988, <<http://news.bbc.co.uk/onthisday/hi/dates/stories/december/3/newsid_2519000/2519451.stm>> accessed on 5 September 2014 61 Pennington T H, Report on the Circumstances Leading to the 1996 Outbreak of Infection with E.coli O157 in Central Scotland, the Implications for Food Safety and the Lessons to be Learned, The Stationery Office, April 1997 62 Philip James, Food Standards Agency: An Interim Proposal, 30 April 1997 63 The Labour Party, New Labour, New Life for Britain, 1996

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The fate of MAFF was sealed, if anything further was needed, by its handling of the FMD

crisis. Defra replaced MAFF immediately following the General Election in June 2001.

3.2 Burnside Farm, Heddon-on-the-Wall

Burnside Farm was held on an agricultural tenancy by the two Waugh brothers and run as a

swill feeding pig farm. The farm comprised no living accommodation, just five sheds and a

caravan used as an office. The brothers collected catering waste in the Newcastle area and

took it for processing at Heddon View, a neighbouring farm licensed to process swill. The

brothers used a dedicated tank for this purpose and held an annual licence to consign swill

from Heddon View and feed it to their pigs on Burnside Farm.

Since Burnside Farm commenced operations in 1995 Mr Dring, the SVS vet, had carried out

twice-yearly inspections. On 30 August 2000 Mr Dring made a routine visit and found

conditions at Burnside Farm unacceptable:

In one of the huts [pigs] had broken through wooden partitions in their pens, smashing the interior to pieces. The result was pigs in very large pens, rather than 24 separate ones. (This meant that boars could meet and were likely to fight. Piglets born into this environment stood little chance of survival.) There were other problems in three other sheds. The farm slurry system was choked and overflowing with slurry backing up into pens, several of which were ankle deep in slurry, making them wetter and dirtier than they should have been. Two sows were dead in their pens.64

No action was taken at the time and astonishingly one of the brothers was told by Mr Dring,

in a telephone call later that evening, that although shocked and disgusted at what had been

discovered he was going to pretend his visit that morning had not happened and he would

return the following week. In evidence to the Parliamentary and Health Service

Ombudsman65 Mr Dring stated that conditions had improved to an acceptable level. No

written record of the visit was made and the record for 30 August 2000 simply states that the

visit was ‘satisfactory’. No report of any problems at Burnside Farm was made.

It appears highly unlikely that what Mr Dring had observed was an isolated incident:

The unit (described by the local MP as ‘a hill-billy outfit’) was run by Bobby Waugh and his brother, neither of whom lived on site, and it transpired that during the previous winter there had been a number of complaints about the state of the place. Witnesses spoke of seeing limping animals, dead animals lying around for days, and untreated pigswill. Complaints had been made to Newcastle Trading Standards officers, environmental health inspectors, the local branch of MAFF and the RSPCA who, after viewing the place from outside (as they were refused entry), made two formal complaints.66

On 22 December 2000 Mr Dring and a local authority inspector visited the farm following

complaints passed on by the Royal Society for the Prevention of Cruelty to Animals (RSPCA).

One ill pig was discovered and Mr Dring stated that a possible prosecution was discussed but

it was decided that the threat of prosecution would be sufficient to bring about

improvements. No record of any warning was made, but in the report compiled following the

visit it was recorded that conditions at the farm were:

64 Parliamentary and Health Service Ombudsman, The Introduction of the Ban on Swill Feeding, 1st Report, Session 2007-08, HC 165, The Stationery Office, 2007, p35, para 93 65 Ibid., Annex C 66 Cook J, The Year of the Pyres: The 2001 Foot-and-Mouth Epidemic, Mainstream Publishing, 2001, p13

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… less than ideal and always have been. Pigs are kept in bare concrete pens with no additional bedding. Problems are exacerbated at this farm by seeming inability to keep the pens dry. All the same the majority of pigs are well grown and well fleshed.

Mr Dring made his annual licensing visit on 24 January 2001, found the situation acceptable

and renewed the brothers’ license under the 1999 Order. Mr Dring had, however, failed to

observe containers of unprocessed catering waste on a hard-standing, modifications to the

feeding system and the presence of cutlery (the ASU claimed there were some 1,300 items)

which strongly suggested unprocessed catering waste was being fed to pigs. The

Parliamentary and Health Service Ombudsman went to some lengths to excuse Mr Dring’s

conduct, but found that his failure to follow proper procedures and submit appropriate

records constituted maladministration.67

Less than four weeks later on 19 February 2001 a case of what could only be swine vesicular

disease (SVD) or FMD was discovered in an Essex abattoir. It was confirmed the following

day and traced to Burnside Farm. FMD was confirmed at Burnside Farm on 23 February, but

could have been present as early as 26 January since when there had been significant

movements of livestock. Investigations were carried out by the Chief Veterinary Officer

(CVO)68 who concluded the most likely source of infection was meat or meat products

contaminated with FMD and fed to pigs in unprocessed or inadequately processed food

waste. The source of the meat was most likely meat illegally imported from the Far East or

catering waste from ships or airlines which was equally impermissible under the 1999

Order.69

3.3 Non-compliance and enforcement

MAFF’s policy was to encourage improvement rather than prosecute under the Animal

Health Act 198170 and the SVS’s approach reflected the policy. Mr Dring’s approach most

clearly did as he explained:

… the normal procedure was to encourage and chivvy farmers into complying with the terms of the licence, and eventually to warn them that if they did not comply, their licence would not be renewed at the next annual renewal.71

The Waugh brothers took advantage of this approach. According to established

arrangements a check on a farmer’s records of swill movement and use should be

undertaken.72 Mr Dring described how the Waugh brothers would often give him the run

around claiming the records were not available but at their home.73

Less than four years earlier Pennington had drawn attention to the perils of this approach

and the tension between the need for tight regulation and ‘light touch’ enforcement:

… the apparent desire on the part of the Government for a light touch to enforcement has

67 Op. cit., p49, paras 141 and 143 68 J M Scudamore, Origin of the UK Foot and Mouth Disease Epidemic in 2001, Defra, June 2002 69 The Animal By-Products Order 1999 SI 1999/646, article 20 70 Judith Cook (2001), p14 71 Op. cit., Annex C, p78, para 5 72 Parliamentary and Health Service Ombudsman (2007), p7 73 Ibid., Annex C, p77, para 3

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left EHOs uncertain about the policy imperatives and their expected roles.74

Pennington was in no doubt that rigorous enforcement must come first in matters of food

safety. The following year Sheriff Graham L. Cox QC presided over the Fatal Accident Inquiry

into what occurred at Wishaw and was hard-hitting when it came to identifying defects in

working systems which contributed to the Wishaw outbreak citing:

The failure on the part of EHOs prior to the outbreak to identify the food safety hazards inherent in the practices carried out within Barrs’ premises …75

The Waugh brothers are yet another case in which history was repeated, light touch

enforcement, a cosy relationship with the regulator (Mr Dring had been the only SVS field

officer to inspect Burnside Farm since 1995) and a superficial examination of the evidence.

Mr Dring failed to ask pertinent questions, make proper enquiry and simply chivvied the

Waugh brothers.

The feeding of unprocessed catering waste to pigs at Burnside Farm was no accident or a

case of cutting corners, but a course of persistent and flagrant conduct which, due to lack of

diligence on the part of the authorities responsible for enforcement, was allowed to go

unchecked. It was a disaster in the making which also made the Waugh brothers easy

scapegoats.

The EU’s Food and Veterinary Office undertook a number of missions in 2001 to evaluate,

amongst other things, controls over swill feeding and observed, in relation to the UK, that:

… the standards observed in the swill processing plants (and proximity to animals) would have given cause for concern if a ban had not been introduced following the FMD outbreaks in 2001.76

It seems clear that the manner in which the Waugh brothers operated Burnside Farm was

not an isolated case.

4 The Government’s Management of the Outbreak

On the morning of 19 February 2001 the on-site vet at an Essex abattoir was alerted to a

batch of pigs which showed symptoms of what could only be swine vesicular disease (SVD)

or FMD. Compulsory notification of either disease was required77 and only on analysis of

blood and tissue samples could it be determined which disease was present. Samples were

despatched to The Pirbright Institute78 which undertook the analysis and confirmed the

74 Pennington T H, Report on the Circumstances Leading to the 1996 Outbreak of Infection with E.coli O157 in Central Scotland, the Implications for Food Safety and the Lessons to be Learned, The Stationery Office, April 1997, p32, para 9.8 75 Graham L. Cox, Determination by Graham L Cox QC, Sheriff Principal of Sheriffdom of South Strathclyde Dumfries and Galloway into the E. Coli O 157 Fatal Accident Inquiry, 1998, p124 76 European Commission, General Report on the Outcome of a Series of Missions Carried Out During 2001 to Evaluate the Controls in Place Over Waste Food from Prohibited Sources and the Feeding of Swill to Farm Animals, Food and Veterinary Office, DG(SANCO)/9007/2002, 2002, p10, para 4.4.3 77 Directive 85/511/EEC 78 The Pirbright Institute, formerly known as the Institute for Animal Health, is a centre of excellence in research and surveillance of virus diseases of farm animals and zoonotic diseases.

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following day that it was FMD. MAFF were notified without delay but requested a second

test which shortly confirmed it was FMD. Crucial time, however, had already been lost in

these early stages.

Meanwhile, operations at the abattoir had been stopped on discovery of the pigs’ symptoms,

no stock movements in or out were permitted and work was in hand to trace all possible

contacts, although the source of infection had not been identified and was not confirmed

until 23 February. The virus had been discovered approximately three weeks after the first

likely onset of clinical signs and, as history would show, by the time of its discovery it had

already reached as far south as Devon and north up into Dumfries and Galloway across more

than 50 locations. This proved to be the single biggest factor which determined the extent of

the outbreak.

4.1 MAFF’s initial response

Neither MAFF nor the farming industry were prepared for an FMD outbreak on a large

scale.79 The Government’s contingency plan was:

… limited in scope, out of date in some respects and not integrated into a national programme of rehearsal and testing. Some local government representatives and other stakeholders claimed they were not aware of these plans. One stakeholder referred to them as the “best kept national secret”.80

Contingency planning within MAFF comprised plans required to be submitted to the EU,81 a

chapter of the SVS’s instruction manual and local divisional plans. European Commission

guidance provided that each member state should have sufficient trained staff to deal with 10

cases at any time and maintain surveillance of premises within a 3 km protection zone

around each.82 There were at this point at least 57 premises already infected, before FMD

was first confirmed.83

On 23 February, four days after FMD was first suspected, national livestock movement

restrictions were introduced. If a ban had been in place on 20 February one estimate

indicated the extent of the epidemic would have been a third to one half of what it became.84

Vaccination was considered early in the outbreak, but considered not feasible and

contingency planning for vaccination was minimal. Plans for vaccination were “developed at

the same time as fighting the disease”.85

On 27 February public footpaths in infected areas were closed and the whole of Great Britain

was declared a Controlled Area under the Foot and Mouth Disease Order 198386 which

imposed restrictions in relation to a wide range of activities. The 1983 Order was hurriedly

79 Iain Anderson, Foot and Mouth Disease 2001: Lessons to be Learned Inquiry Report, HC 888, The Stationery Office, 22 July 2002, p8 80 Iain Anderson (2002) p32 and see p39 81 Directive 90/423, Article 5 82 European Commission, Guidelines for Contingency Plans against Foot and Mouth Disease, DGVI/1324/9, March 1991 83 Iain Anderson (2002), p36 84 Iain Anderson (2002), p60 85 Iain Anderson (2002), p124 86 SI 1983/1950

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amended87 that same day to empower local authorities to close all public footpaths within

their boundaries without notice. The date, 27 February 2001, became known as ‘The day they

closed the countryside’.88 The Countryside Agency claimed it could cost the rural economy

£2 billion.89 The problem was exacerbated by the fact that the process of reopening footpaths

had not been thought through.90

On 27 February a national strategy had also been agreed under which all susceptible animals

on infected premises and dangerous contacts were culled.

FMD was first discussed at a meeting of the Cabinet on 1 March when Nick Brown, Minister

of Agriculture, provided a factual report. It soon became clear, around 10 March, that the cull

policy was not working. In Scotland, plans were made, unsupported by scientific advice, for a

pre-emptive cull of all sheep within 3 km of confirmed infected premises. On 15 March this

became the policy to be applied in England and Scotland. Around this time public confidence

in the actions of MAFF fell away:

The truth started to emerge in early to mid-March. Some relationships among those involved became tense. A sense of panic appeared, communications became erratic and orderly processes started to break down. Decision making became haphazard and messy, not least in the way in which the culling policy was to be extended. The loss of public confidence and the media’s need for a story started to drive the agenda.91

MAFF employed “large numbers of Information Officers whose function is to liaise between the media and government”,92 but media management was not a skill which proved useful in controlling the outbreak. The armed forces were deployed in Devon on 19 March and Cumbria on 21 March93 and at its peak more than 2,000 military personnel were actively engaged in delivering an increasingly confused policy to combat FMD. On 24 March a policy of slaughter on suspicion was introduced, clinical confirmation of FMD was no longer required. Finally, the contiguous cull of all animals on premises neighbouring infected premises was undertaken. The policy overall94 was:

• Cull all susceptible animals on premises with clinically confirmed cases within 24 hours.

• Slaughter on suspicion.

• Cull known dangerous contacts.

87 The Foot-and-Mouth Disease (Amendment) (England) (No. 2) Order 2001. Note that the earlier Foot-and-Mouth Disease (Amendment) (England) Order 2001 SI 2001/571 made on 27 February 2001 proved defective. 88 David Brown and others, The day they closed the countryside, The Telegraph, 28 February 2001 <http://www.telegraph.co.uk/news/uknews/1324428/The-day-they-closed-the-countryside.html> accessed 24 September 2014 89 Iain Anderson (2002), p64 90 Iain Anderson (2002), p65 91 Iain Anderson, Foot and Mouth Disease 2001: Lessons to be Learned Inquiry Report, HC 888, The Stationery Office, 22 July 2002, p6 92 Miller D and Reilly J (1994), p9 93 Iain Anderson (2002), p82 94 Iain Anderson (2002), p97

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• Cull sheep, pigs and goats within 3 km of infected premises in Cumbria and Dumfries and Galloway.

• Cull all susceptible animals contiguous to infected premises within 48

hours. The cull and slaughter policy had evolved in a piecemeal fashion and at each stage was

unsupported by any clear scientific rationale. The manner of its introduction and poor

communication of rationale generated considerable widespread mistrust amongst farmers

and the public.

The term ‘cognitive dissonance’ has been used to describe MAFF’s actions. It is a mental

state arising when a person’s knowledge or beliefs conflict with their decisions. When there

is pressure to justify those decisions, the less justified they are the greater the dissonance.

The inability to admit to error increases with the seriousness of the error and the more

incredulous become attempts to justify the unjustifiable. A change in policy becomes

unthinkable and in MAFF’s case “the killing intensified and the ‘cure’ became worse than the

disease.”95

There was, no doubt, also a sensitivity, on the part of those charged with communicating

such matters, to media reporting of associated health risks which may well have

compounded the problem.96

4.2 COBR convened and the PM takes charge The Cabinet Office Briefing Room (COBR) is an established part of the machinery of

government used to coordinate and manage the response to crises and civil emergencies.

Large parts of the countryside were in chaos and FMD was far from under control. The crisis

point had been reached and the Cabinet Secretary directed that COBR be convened. It first

met on 22 March, 31 days into the crisis during which “a serious veterinary problem had

become a national disaster”,97 and met twice a day until 5 April. The management of the

outbreak had become the personal responsibility of the Prime Minister. The daily MAFF

press briefing ended on 25 March98 and henceforth national press briefings came from the

Prime Minister and his office.

The Joint Co-ordination Centre (JCC) was set up within MAFF on 26 March with the

function:

… to provide and maintain an accurate ground picture of progress of the campaign, provide a liaison network to facilitate the rapid dissemination of instructions and information to the field and present information on the operation to all interested parties.99

95 North R A E, The Death of British Agriculture: The Wanton Destruction of a Key Industry, Duckworth & Co. Ltd., 2001, pp30-31 96 D Miller and J Reilly, ‘Food ‘Scares’ in the Media’, Glasgow University Media Group, March 1994, <http://www.dmiller.info/food-scares-in-the-media> accessed on 31 July 2014 and D Miller and J Reilly, 'Making an Issue of Food Safety: The Media, Pressure Groups and the Public Sphere' in Maurer D and Sobal J (eds), Eating Agendas: Food, Eating and Nutrition as Social Problems, Aldine De Gruyter, 1995, pp 305-336 97 Iain Anderson (2002), p102 98 Iain Anderson (2002), p143 99 Iain Anderson (2002), p106 quoting from the Government’s Memorandum to the Inquiry.

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In those critical early weeks of the outbreak and throughout the first two months Anderson

found that:

… there was a serious deficiency in the reliability and completeness of the information available to those in charge of managing the disease.100

The true nature and full extent of the problem had not been appreciated until after MAFF

had been overwhelmed by the scale of the crisis. The establishment of COBR and creation of

the JCC proved to be the turning point in managing the outbreak.

Local elections were scheduled for 3 May and media speculation was that a General Election

was anticipated to be called for that same day. Anderson found no evidence that the pending

General Election influenced decision making101 but a good deal of circumstantial evidence

points inevitably to this conclusion. The prospect of campaigning for a second term of office

against a backdrop of a closed countryside and pyres of dead livestock burning must have

been at the forefront of the minds of politicians.

The logistics of disposing of thousands of carcasses was a source of huge public concern and

provided graphic images filling news media nationally and internationally. In early April, at

the peak of the crisis, there were 622,000 animals awaiting slaughter and 230,000 carcasses

awaiting disposal. The problem was only overcome with the creation, in the face of much

public opposition, of mass burial sites. Some 61,000 tonnes of carcasses were committed to

four mass burial sites and a further 95,000 tonnes to 29 commercial landfill sites.102

4.3 The end of FMD – and the cost The last reported case of FMD was on 30 September 2001, the outbreak lasted 221 days, one

day shorter than the 1967 outbreak, but it came at a much higher cost.

Official figures put the cost of the eradication of FMD in 2001 at over £8 billion of which £5

billion103 fell on the private sector and over £3 billion directly on the public purse. In all

2,026 premises across 44 counties, unitary authorities and metropolitan districts were

officially declared infected and over six million animals were slaughtered.104 The loss to

agriculture was largely compensated by Government but an estimated £355 million,

representing 20% of farming income in 2001, was not compensated.105

The cost in numbers does not take account of the environmental impact of carcass

disposal,106 the 200 incidents of water pollution and the degradation of air quality; or the

100 Iain Anderson (2002), p103 101 Iain Anderson (2002), p102 102 Iain Anderson (2002), p113 103 National Audit Office, The 2001 Outbreak of Foot and Mouth Disease: Report by the Comptroller and Auditor General, HC 939 Session 2001-2002, 21 June 2002, pp24-25, paras 1.26 and 1.28 104 National Audit Office (2002), pp16-17, paras 1.10 and 1.11 105 D Thompson and others, ‘Economic Costs of the Foot and Mouth Disease Outbreak in the United Kingdom in 2001’, Rev. Sci. Tech. Off. Int. Epiz., Volume 21(3), 2002, p679 106 Paul Watkiss and Alison Smith, CBA of Foot and Mouth Disease Control Strategies: Environmental Impacts, AEA Technology Environment <<http://archive.defra.gov.uk/foodfarm/farmanimal/diseases/atoz/fmd/documents/environmental_report.pdf>> accessed on 10 January 2015

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human cost, the lives of the many traumatised farmers and damage to the health and well-

being of rural communities.107

Amongst the many lessons to be learned arising out of the many inquiry reports which

followed, several stand out:

1. Contingency planning was poor and “better preparation, including better contingency

plans, which were understood and well-rehearsed would have done much to limit the scale of the crisis.”108

2. The responsible authorities were slow to respond: “The key to effective disease control is speed, speed and more speed.”109 In particular, valuable hours were lost in undertaking the initial analysis and confirmation of FMD, it took 30 hours. The source of the infection could have been more quickly identified110 and movement restrictions came four days after FMD had been discovered.

3. Whether or not to vaccinate was a hotly debated topic and one almost entirely overlooked. A key tool in fighting the outbreak proved impossible to use.111

4. The rationale for the cull and slaughter policy was unclear and poorly communicated. Clear accounts of decision making were often impossible to find and while “some policy decisions were recorded with commendable clarity, some of the most important ones taken during the outbreak were recorded in the most perfunctory way, and sometimes not at all.”112

A cost benefit analysis of the FMD outbreak in 1967 concluded that the economic benefit of

FMD control substantially exceeded the cost of control.113 This analysis had not been updated

and it is likely that it would have shown, due to the increased value of tourism and other

factors, that the economic benefits were even greater in 2001.

In 2001, disease control strategy was developed at short notice as the crisis evolved. The response was often not in proportion to the nature of the risks. At the start of the outbreak, some control measures were too limited or too late for the scale of the risks posed by the infection. However, by the height of the 2001 outbreak, some of the control measures applied uniformly across the country were disproportionate to the levels of risk in specific regions. As a result, industries – notably the British tourism industry – were disproportionately affected.114

The picture painted is one in which the lessons of the past had not been learned, contingency

planning for a possible recurrence was poor, the initial management of the response to the

outbreak was slow and poorly informed, the full range of options, including vaccination,

were not considered and decision making lacked a clear rationale and focus. It is easy to see

how a serious veterinary problem became a national disaster.

107 D Thompson and others (2002), pp675-687 108 Iain Anderson (2002), p39 109 Iain Anderson (2002), p61 110 Iain Anderson (2002), p57 111 Iain Anderson (2002), p128 112 Iain Anderson (2002), p93 113 A P Power and S A Harris, A Cost Benefit Evaluation of Alternative Control Policies for Foot and Mouth Disease in Great Britain, MAFF, 1973 114 Iain Anderson, Foot and Mouth Disease 2007: A Review and Lessons Learned, The Stationery Office, 11 March 2008

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5 The Domestic and EU Legislative Response The UK set the course on which the rest of Europe would soon follow, having already led the

way in addressing concerns surrounding BSE, in particular a ban on the feeding of processed

animal protein (PAP) to ruminants. The practice was prohibited under The Animal By-

products Order 1999 and subsequently across the EU under the transmissible spongiform

encephalopathies (TSE) Regulation (EC) 999/2001 which took effect on 1 July 2001.115 The

UK would lead the way again in legislating on the future use of catering waste in animal feed.

5.1 The domestic response Between 20 February 2001, when FMD was first confirmed, and the end of that year new or

amending regulations concerning FMD116 affecting the UK were passed on 194 occasions.

The Foot-and-Mouth Order 1983117 was at the time the principal regulatory provision

concerning the control of FMD and was, in relation to its application to England alone,

amended no fewer than 14 times. A state of affairs suggesting a Government in a state of

panic, not knowing what to do.

On 27 March 2001 the Government proposed an amendment to The Animal By-Products

Order 1999 which would ban feeding swill and related products to livestock. MAFF published

a consultation document118 on the proposal in which it stated reasons in support of the ban:

1. The risks associated with continued swill feeding were greater due to the FMD

outbreak. The risk previously came from imported infected meat products and, for some time to come, there will be a risk arising from domestic meat in swill.

2. The consequences of one mistake in swill feeding can be enormous and only a relatively small number of livestock farmers feed swill.

3. Swill may contain porcine material and is a rare example of permitted intra species recycling. While beef and sheep material could be allowed it would, in practice, be impossible to enforce.

4. The EU was itself considering a ban on swill feeding. The practice of swill feeding had been in decline and MAFF estimated that in 2000 there

were approximately 82,000 pigs, 1.4% of the total number of pigs, which were fed swill in 93

premises licensed for feeding swill to pigs and poultry. The arguments against a ban,

according to MAFF in the same document, were:

1. Where regulations for feeding swill are followed there is no risk of FMD or other

diseases being passed on.

2. Swill is inexpensive for use in low margin pig production and farmers feeding swill would lose the benefit of investment in equipment necessary for processing swill in accordance with the regulations.

115 Council Decision 2000/766/EC directed member states to prohibit PAP between 1 January and 30 June 2001. 116 This figure includes only those regulations having ‘Foot and Mouth’ in the title. 117 SI 1983/1950 which gave effect to Directive 82/894/EEC on the notification of animal diseases. 118 Parliamentary and Health Service Ombudsman (2007), Annex B is a copy of the consultation letter.

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3. Banning swill will not prevent illegal feeding of swill and catering waste, if it is not permitted and controlled it may increase the risk.

4. Banning swill will increase the quantity and cost of catering waste to be disposed, the most likely option being landfill which was and remains a means of disposal out of favour with official policy.

Allied to the proposed ban was the question whether catering waste not containing or not

having been in contact with animal products, which was outside the 1999 Order, should also

be banned. Finally, in the event of a ban a transitional period of only 3 to 4 weeks was

proposed for the introduction of new compliant feeding arrangements and implementation

of the ban. The consultation document was sent to 652 individuals and organisations and

there followed a period of formal consultation over just two weeks between 27 March and 10

April 2001.

The first reason cited by MAFF in support of the ban, the additional risk from domestic meat

in swill which would persist for some time to come, may have made sense in the context of a

temporary ban but not a permanent prohibition.119

On the second, so many things could be banned on the basis of the consequences of one

mistake. In any event, the FMD outbreak in 2001 was not a case of mistake but one of wilful

misconduct and poor regulatory enforcement.

Third, pigs in the wild “will forage for meat – even devouring other dead pigs – as well as

roots and leaves.”120 The fact that pigs have fed this way for thousands of years without any

concern for pig or human health is compelling evidence of no need for change. There is a

clear distinction to be drawn between feeding pigs in this way and the feeding of PAP to

ruminants which have not evolved to consume such a diet and which was widely believed to

have been the cause of BSE in cattle. There are social and cultural sensitivities to address,

but these arise out of ignorance about how pigs have historically been fed and should not

prevent the appropriate use of a valuable source of animal feed.

Finally, the fact that the EU was contemplating a similar course of action was no reason to do

so first. It is indicative of a lack of challenge to forthcoming EU proposals. MAFF presented a

less than convincing case and had clearly pre-determined the outcome of the consultation as

evidenced by the Minister of State who questioned “whether it is really necessary to consult

on the ban as the arguments are so strong that we should announce a date by which swill will

no longer be permitted.”121 The consultation which followed was not meaningful by the

standards of the day that ought to have been applied.122

Finally, the arguments set out in the consultation document both for and against a ban on

swill feeding represented a narrow view and assessment of the position. Both sides failed to

take account of the wider economic and environmental impact that would follow such a ban.

119 Tristram Stuart (2009), pp251-252 120 Ibid., p254 121 Parliamentary and Health Service Ombudsman, The Introduction of the Ban on Swill Feeding, 1st Report, Session 2007-08, HC 165, The Stationery Office, 2007, Annex A, p56 122 The four Sedley requirements set out in R v Brent London Borough Council ex parte Gunning (1985) 84 LGR 168

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The Parliamentary and Health Service Ombudsman, on considering the ASU’s complaint,

noted:

… whilst both the [ … ] veterinarian opinions supported a ban, neither referred in any detail to the likely impact that the ban would have on swill farmers, or indeed on the wider environment.123

The Animal By-Products (Amendment) (England) Order 2001,124 which banned the feeding

of swill to livestock, was made on 3 May 2001 and came into force three weeks later. Catering

waste not containing or having been in contact with animal products was not included in the

prohibition and so could continue to be used in animal feed. The 2001 Order had been

notified in draft to the European Commission as a technical standard as required under

Directive 98/34/EC.125

5.2 The EU legislates on FMD

In 2001 the legal framework for the control of FMD throughout the EU was contained in

Council Directive 85/511/EEC. The earlier Directive 82/894/EEC provided for the

notification of the primary outbreak of specified animal diseases, including FMD, to the

European Commission and member states.126 Domestic effect was given to these directives

by The Foot-and-Mouth Disease Order 1983.127

On 21 February, the day following the confirmation of FMD, the Commission acted swiftly in

adopting emergency Decision 2001/145/EC prohibiting the movement of cattle, sheep, goats

and pigs and other biungulates out of the UK. The prohibition initially lasted until 1 March

2001 when it was extended following consultation with the Standing Veterinary

Committee.128 It was then repeatedly extended until all controls were finally lifted on 5

February 2002. Similar action followed in relation to France, the Netherlands and Ireland as

outbreaks of FMD were confirmed in these countries.

FMD in the UK was first debated in the European Parliament on 14 March 2001 when

vaccination was the main focus of discussion. Concerns were also expressed about the

transportation of live animals over long distances for slaughter and the closure of small

abattoirs, little reference was made to swill feeding. It was not high on the list of concerns of

Members of the European Parliament (MEPs).129 The main vaccination strategies are

summarise in Figure 3 below.

The member states of the EU affirmed their commitment not to re-introduce preventive

vaccination for FMD. Three days later, on 26 March, the Netherlands was allowed to

commence suppressive vaccination of livestock within 2 km of a confirmed outbreak while

awaiting slaughter and destruction.

123 Ibid., p27, para 76 124 SI 2001/1704 125 Directive 98/34/EC, Articles 1(11) and (12) and 8 126 Directive 82/894/EEC, Article 3 127 SI 1983/1950 128 Decision 2001/172/EC and as subsequently amended. 129 Foot-and-mouth disease, European Parliament, 14 March 2001 <http://www.europarl.europa.eu/sides/getDoc.do?type=CRE&reference=20010314&secondRef=ITEM-007&format=XML&language=EN> accessed on 30 September 2014

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Methods of Vaccination for Use in the Control of FMD

Prophylactic (preventive) vaccination

Vaccination routinely used in the prevention of FMD.

Ring, protective or buffer vaccination

Vaccination outside of and around a focus of FMD to inhibit outward spread of disease in a country that is normally free of FMD and does not normally vaccinate against FMD. The intention is that animals be kept alive following vaccination.

Barrier vaccination

Vaccination in an area in which FMD is spreading. Vaccination against an outbreak of FMD in a neighbouring country or region applied in an emergency along the border in the country or region at risk.

Suppressive or dampening down vaccination

Vaccination within whole regions. Vaccination as a complimentary measure in a stamping-out policy where emergency vaccination is applied to the animal population around an outbreak location, usually within the protection zone in which outbreaks have occurred. A form of ring vaccination followed by the slaughter of vaccinated animals.

Figure 3 – Approaches to FMD vaccination

On 30 March 2001 the Commission adopted Decision 2001/257/EC allowing the UK to

undertake protective vaccination in Devon and Cumbria but prohibited the movement of

vaccinated cattle for at least one year following the last outbreak of FMD.

The preventive or prophylactic vaccination of livestock protects against FMD but does not

prevent animals from becoming carriers. This led the EU to adopt a policy in 1990 which

prohibited preventive vaccination for which provision was made under Council Directive

85/511.130

The issue of preventive vaccination came to the fore when Ms Jippes, who kept a small

number of sheep and goats as a hobby, sought to vaccinate her livestock after an outbreak of

FMD in the Netherlands. The approval to vaccinate was not forthcoming and Ms Jippes

appealed the Minister’s decision. The domestic court referred to the Court of Justice the

question whether the prohibition on vaccination was incompatible with the European

Convention on the Protection of Animals kept for Farming Purposes in that it did not accord

with the principle of proportionality and the need to safeguard animal welfare.131 On 12 July

2001 the Court of Justice held that the ban on preventive vaccination did not exceed the

limits of what was appropriate and necessary in controlling the disease.132

The prohibition on preventive vaccination was, in any event, qualified:

130 Council Directive 85/511, Article 13(1) as amended by Directive 90/423/EEC introducing measures for the control of foot-and-mouth disease 131 European Convention on the Protection of Animals kept for Farming Purposes, Article 3 132 H Jippes and others v Minister van Landbouw, Natuurbeheer en Visserij (Case C-189/01)

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… it may be decided, when foot-and-mouth disease has been confirmed and threatens to become extensive, that emergency vaccination using technical procedures guaranteeing the animals' total immunity may be introduced.133

A decision on emergency vaccination fell to the European Commission in collaboration with

the member state concerned.134 The use of suppressive and protective vaccination in the

Netherlands and UK followed this approach although no vaccination was actually

undertaken in the UK.

When MEPs reconvened on 6 September 2001 to debate FMD, some eight motions were

tabled for debate.135 The topic of swill feed received not a single mention, but criticism of the

Court of Justice’s decision in the Jippes case on preventive vaccination and the case for ring

vaccination was a consistent theme throughout the motions and debate which took place.

The European Parliament appointed a special Temporary Committee on Foot and Mouth

Disease in January 2002. The Committee first met on 21 February 2002 and presented its

final report for consideration by the European Parliament on 17 December 2002. The report

was overwhelmingly endorsed by 481 votes to 32, including the call for emergency

vaccination as a first-choice option and the amendment of EU law accordingly.136 There was

recognition of the need to move away from purely economic and commercial factors in

determining policy on FMD and take into account the social and psychological impact of a

large outbreak on farming and rural communities alongside a consideration for animal

welfare. The Parliament resolved that:

Mass culling of livestock and the subsequent destruction of meat resulted in widespread public protests and can be ethically justified only by special socioeconomic grounds. […] It has become clear from the 2001 epidemic that mass culling on the scale seen in the UK and the Netherlands will not be publicly acceptable again and that alternative control strategies are therefore essential.137

Commissioner Byrne indicated the Temporary Committee’s findings would be reflected in a

new draft directive. The final Directive 2003/85/EC138 set out “the minimum control

measures to be applied in the event of an outbreak of foot-and-mouth disease of whatever

type of virus”139 and makes specific provision for emergency and protective vaccination.140

133 Council Directive 85/511, Article 13(3) 134 Ibid., Article 16 135 Foot-and-mouth disease, European Parliament, 6 September 2001 <http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-%2f%2fEP%2f%2fTEXT%2bCRE%2b20010906%2bITEM-008%2bDOC%2bXML%2bV0%2f%2fEN&language=EN> accessed on 30 September 2014 136 Foot and mouth disease: lessons to be learned and proposals for the future, European Parliament, 17 December 2002 <http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+CRE+20021217+ITEM-001+DOC+XML+V0//EN&language=EN> accessed on 30 September 2014 137 Temporary Committee on Foot and Mouth Disease, Report on Measures to Control Foot and Mouth Disease in the European Union in 2001 and Future Measures to Prevent and Control Animal Diseases in the European Union, 28 November 2002, para 59 <http://www.europarl.europa.eu/sides/getDoc.do?type=REPORT&reference=A5-2002-0405&language=EN> accessed on 30 September 2014 138 Directive 2003/85/EC, recital 14 139 Ibid., Article 1(a) 140 Ibid., Section 8, Articles 49 to 58.

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In England the 2003 Directive had effect under the Animal Health Act (Amendment)

Regulations 2005,141 the Foot and Mouth Disease (England) Order 2006142 and the Foot and

Mouth Disease (Control of Vaccination) (England) Regulations 2006.143 The arrangements

for vaccination are described in the Foot and Mouth Disease Control Strategy for Great

Britain144 which makes it clear that:

Government is legally obliged to consider whether vaccination would assist disease control and activate arrangements to implement vaccination from the outset of an FMD outbreak.145

It is striking that little or no reference is made to swill feeding or any risks associated with

such practice throughout EU proceedings concerning the management of FMD and debate in

the European Parliament.

5.3 The EU legislates on catering waste

On 19 October 2000 the Commission proposed a regulation laying down health rules

concerning animal by-products not intended for human consumption.146 The Government’s

27 March 2001 consultation document on amending The Animal By-Products Order 1999 to

ban swill feeding made reference to these proposals.

The Economic and Social Committee adopted an opinion on 26 April 2001. The European

Parliament adopted an opinion on the proposed regulation at first reading on 12 June 2001

and on 10 July 2001 the Economic and Social Committee published its opinion on the

proposed regulation.147

… for ethical reasons and out of respect for the very nature of animals, the Committee takes the view that omnivorous or carnivorous animals should not be fed by-products of animals of their own species.148

In expressing its opinion, the Committee failed to articulate any ethical reasons on which it

relied or the grounds on which respect for animals is to be observed. It made a bland

assertion which omitted to take account of the realities of animal behaviour but further

cemented the view against intra species recycling.

The Council adopted a Common Position149 on 20 November 2001, published on 19 February

2002, which took the prohibition on intra species recycling as a given in stating:

141 SI 2005/3475 142 SI 2006/182 143 SI 2006/183 144 Foot and Mouth Disease Control Strategy for Great Britain, 28 March 2003 and vaccination is covered in the present Foot and Mouth Disease Control Strategy for Great Britain, November 2011, Section 8, pp17 to 19 145 Ibid., p17 146 Proposal for a Regulation of the European Parliament and of the Council laying down the health rules concerning animal by-products not intended for human consumption COM(2000) 574 final 147 Opinion of the Economic and Social Committee on the Proposal for a Regulation of the European Parliament and of the Council laying down the health rules concerning animal by-products not intended for human consumption, OJ C 193/32, 10 July 2001 148 Ibid., para 3.5.1 149 Common Position (EC) 12/2002 OJ C 45 E/70

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The Common Position would also prohibit the use of catering waste to prepare feed. In part, this is a corollary to the prohibition on intraspecies recycling. It would be virtually impossible to prove, for example, that swill for pigs included no leftovers from dishes containing pork or ham. The prohibition is also an indispensable precautionary measure to prevent the spread of epizootic diseases. Recent outbreaks of animal diseases appear to be due to the use of catering waste containing infected meat, demonstrating that the current controls are ineffective.150

The prohibition on the use of catering waste in animal feed appears to be based not on any

concern over the risk of FMD or other infectious diseases, but as a ‘corollary’ to intra species

recycling. The idea that the prohibition is an indispensable precautionary measure to prevent

the spread of disease comes as an afterthought.

There was no difference of opinion or approach among the institutions of the EU concerning

a prohibition on feeding catering waste to animals. There was a noticeable absence of any

consideration of the wider social and environmental impacts which may result. The EU was,

it seems, once more taking a lead from the UK.

The end result was Regulation (EC) 1774/2002, made on 3 October 2002, which laid down

health rules concerning animal by-products not intended for human consumption:

Catering waste containing products of animal origin can also be a vector for the spread of disease. All catering waste generated from means of transport operating internationally should be disposed of safely. Catering waste produced within the Community should not be used for the feeding of farmed animals other than fur animals.151

Catering waste means all waste food originating in restaurants, catering facilities and kitchens, including central kitchens and household kitchens152 and where it is destined for animal consumption is classified Category 3 material153 under the 2002 Regulation. It must be collected, transported and identified without undue delay154 and generally directly disposed of by incineration in an approved incineration plant,155 used as pet food or in a biogas plant. The intermediate handling or storage of Category 3 material must take place as directed in approved establishments.156 Pigs, which for thousands of years have cleared up after humans and with little or no debate on the question, no longer get a look-in. The 2002 Regulation is enforced by The Animal By-Products Regulations 2003.157 It is an offence to possess Category 3 material and fail to comply with the 2002 Regulation.158 A person found guilty is liable, on summary conviction, to an unlimited fine and six months imprisonment and, on indictment, two years imprisonment. The penalties are draconian when compared to the £5,000 fine for an offence in relation to breach of The Animal By-Products Order 1999159 and similar regulatory offences.

150 OJ C 45 E/166 151 Regulation (EC) 1774/2002, recital 8 152 Ibid., Annex I, para 15 153 Ibid., Articles 1(2)(e)(ii) and 6(1)(l) 154 Ibid., Article 7 155 Ibid., Article 12 156 Ibid., Article 6(2) and 10 157 SI 2003/1482 158 r6 and Article 6(2) and (3) 159 See p8

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6 An Alternative Approach to the Management of FMD

The first national FMD elimination programmes in South America were established in the

1960s and 1970s. In 1987 the Hemispheric Plan for the Eradication of Foot and Mouth

Disease (PHEFA) was adopted across all countries in the region. The objective of PHEFA was

the complete eradication of FMD by means of a comprehensive vaccination programme with

culling used only as a last resort.160

Between 1990 and 1999 the number of FMD outbreaks in South America fell from 955 to

130. In 1996 Uruguay was officially declared ‘FMD free without vaccination’ by the World

Organisation for Animal Health (OIE) after vaccination had been discontinued two years

earlier. Argentina and Paraguay followed in 1999 and the southern states of Brazil in 2000.161

The region as a whole was not, however, FMD free and the discontinuance of vaccination by

Uruguay and several other countries was to prove premature.162

6.1 FMD in Uruguay in 2001

In 2001, while the UK descended into the horror of mass scale livestock slaughter, the story

of another FMD outbreak unfolded in Uruguay.

On 23 April 2001, little more than two months after the FMD outbreak in the UK had been

confirmed, FMD was discovered in Uruguay. Argentina had been struck by a large outbreak

of FMD earlier that year and the first reported case in Uruguay was on a farm just 70

kilometres from the border with Argentina. There were many similarities between what

occurred in Uruguay and the UK in 2001 in terms of the nature and scale of the outbreak.

The similarities went further so that when the EU was critical of standards observed in UK

swill processing plants163 an EU mission to Uruguay noted that:

Effective control over the feeding of unprocessed swill to pigs did not appear to be in place. In the particular social environment which surrounds the use of swill, it was clear that, unless measures were taken, the risk of the introduction of disease through this procedure would remain unacceptably high.164

The final outcome in Uruguay was, however, very different.

6.2 Management of the outbreak

The Government’s initial response was the prompt slaughter of cattle affected or

exposed to FMD. Several further outbreaks occurred and areas were quarantined.

The discovery that, shortly before the outbreak, cattle had been sold at auction in the

160 Jose Naranjo and Ottorino Cosivi, ‘Elimination of Foot-and-Mouth Disease in South America: Lessons and Challenges’, Phil. Trans. R. Soc. B 368: 20120381, 2013, p3. 161 Paul Sutmoller and R Casas Olascoaga, The Successful Control and Eradication of Foot and Mouth Disease Epidemics in South America in 2001, Evidence for the Temporary Committee on Foot and Mouth Disease of the European Parliament, 2 September 2002, p1 162 Anna Rovid Spickler and James A Roth (editors), Emerging and Exotic Diseases of Animals, 3rd edition, Institute for International Cooperation in Animal Biologics, 2006, p93 163 See p13 164 European Commission, Final Report of a Mission Carried Out in Uruguay from 25 to 29 June 2001 in Order to Evaluate the Situation with Regard to Outbreaks of Foot and Mouth Disease, Food and Veterinary Office, DG(SANCO)/3342/2001 – MR Final, 2001, p8, para 4.1.5

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area and transported across the country combined with vociferous opposition to

slaughter by the farming community led the Government to reappraise the situation.

On 26 April the vaccination of all cattle within a 10 km radius of affected farms

commenced and the following day a prohibition on the movement and trade of

animals was introduced supported by an extensive use of road blocks.

The policy was officially changed from stamping out to mass vaccination on 29 April.

The initial focus was on areas of milk production or large numbers of smallholders.

There had at this point been 56 outbreaks of FMD declared.165

On 1 May ring vaccination commenced around infected areas and a large scale

vaccination program for all cattle commenced four days later. The vaccination of

almost 11 million cattle had been completed by 7 June. Testing indicated a

compliance level of 99% and while sheep and pigs were not vaccinated this was not

detrimental to the eradication of FMD. A re-vaccination program was carried out

between 15 June and 22 July which boosted immunity in cattle, by which time only a

few sporadic outbreaks were being reported. An estimated level of protection of

99.6% had been achieved.166

The last case of FMD was reported on 21 August and the outbreak had been

contained in just under four months, almost half the time taken in the UK. The

“clinical manifestations of the disease [had] been effectively controlled.”167 In

October 2001, Uruguay was declared free of FMD, albeit with vaccination, while in

the UK the last case of FMD had just been reported on 30 September.

6.3 The outcome and cost

Some 2,057 farms were affected in the outbreak, roughly the same as in the UK. The

direct cost of eradicating FMD was put at $13.6m, the cost of vaccine, compensation

payments to farmers and organisational costs. A fraction of the cost when compared

to the UK. The single most important reason for this difference was a change in

official policy from one based on stamping out to one based on vaccination and

livestock movement restrictions within a matter of days of confirmation of the

outbreak.

A change in policy which would have been unthinkable to MAFF but which proved

effective in managing a major outbreak of FMD:

165 Ibid., p12, para 5.2.3 166 European Commission, Final Report of a Mission Carried Out in Uruguay from 1 to 4 October 2001 in Order to Evaluate the Controls in Place over Foot and Mouth Disease, Food and Veterinary Office, DG(SANCO)/3456/2001 – MR Final, 2001, p10, para 5.3.2 167 Ibid., p24, para 8

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Uruguay was able to eradicate its extensive outbreak solely by restrictions on livestock movement and the vaccination of cattle, in spite of the fact of having a large and fully susceptible sheep population in close contact with the cattle.168

More recent observers have concluded that systematic mass vaccination can be an effective

tool in the elimination of FMD.169

Practical experience in a number of countries has demonstrated that the spread of FMD can be very quickly halted by an emergency vaccination campaign using a single round of vaccination, providing that a potent vaccine […] is used, and all or nearly all susceptible animals are immunized.170

7 The EU Legal Framework in 2015

Since the 2001 outbreak of FMD legislative control over the disease has been adapted. The

objective continues to be retaining FMD free status without vaccination at the earliest

opportunity, the main difference is the central role which emergency vaccination now plays.

The International Conference on Control and Prevention of Foot and Mouth Disease took

place in Brussels in December 2001 and the conclusions reached were taken into account in

the review of FMD controls provided for in Directive 85/511/EEC171 along with the resolution

of the European Parliament on 17 December 2002 based on the conclusions of the

Temporary Committee on Foot-and-Mouth Disease. The Brussel’s Conference concluded:

The forthcoming revision of the EU FMD Directive should provide for greater flexibility in the control options available to Member States to manage future FMD outbreaks including emergency vaccination as a tool to reduce the numbers of animals destroyed without compromising the trade in animals and products.172

7.1 The law as it stands today Council Directive 2003/85/EC continues to set out the control measures for FMD having

repealed the earlier governing Directive 85/511/EEC.173 The measures remain based first and

foremost on the slaughter of infected and contaminated animals of susceptible species

without delay in accordance with Council Directive 93/119/EEC on the protection of animals

at the time of slaughter.

In order to prevent the spread of FMD careful monitoring of animal movements is required

immediately on the occurrence of any outbreak and, where appropriate, particularly in

densely populated livestock areas, by the use of emergency vaccination without the necessity

for subsequent slaughter.174 The control strategy adopted should take account of the

168 Anna Rovid Spickler and James A Roth (editors) (2006), p96 169 Jose Naranjo and Ottorino Cosivi (2013), p11 170 William A Geering and Juan Labroth, Preparation of Foot-and-Mouth Disease Contingency Plans, FAO Animal Health Manual 16, Food and Agriculture Organization of the United Nations, Rome, 2002, p52 171 Directive 2003/85/EC, recital 13 172 International Conference on Control and Prevention of Foot and Mouth Disease, Brussels 12-13 December 2001, Final Report, p8 173 Directive 2003/85/EC also repeals Decisions 89/531/EEC and 91/665/EEC and amends Directive 92/46/EEC 174 Directive 2003/85/EC, recitals 21, 23 and 26

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approach which causes the least possible economic damage to the non-agricultural sectors of

the economy.175

The use of FMD vaccines for preventive or prophylactic purposes remains prohibited but the

circumstances in which emergency vaccination may and ought to be undertaken are now

much more clearly set out. The emergency vaccination of livestock may be undertaken where

one of the following applies:176

a) Outbreaks of FMD have been confirmed and threaten to become widespread in the

member state in which they have been confirmed.

b) Other member states are at risk due to geography or prevailing meteorological conditions.

c) Other member states are at risk due to epidemiologically relevant contacts between holdings on their territories and holdings keeping animals of susceptible species in a member state where there are outbreaks of FMD.

d) Member states are at risk due to the geography or prevailing meteorological conditions in a neighbouring third country where there are outbreaks of FMD.

The decision on emergency vaccination is taken having regard to specified criteria177 and

pursuant to the provisions of Council Decision 1999/468/EC, which lays down the procedure

to be followed,178 and must specify the conditions under which vaccination is to be carried

out.179 Provision is made for both protective180 and suppressive vaccination.181

Directive 82/894/EEC continues to provide for the notification of the primary outbreak of

FMD to the European Commission and member states.182

In England, Council Directive 2003/85/EC and Directive 82/894/EC are implemented by

The Animal Health Act 1981 (Amendment) Regulations 2005,183 The Foot and Mouth

Disease (England) Order 2006184 and The Foot-and-Mouth Disease (Control of Vaccination)

(England) Regulations 2006.185

The 2005 Regulations changed the Secretary of State’s discretion to slaughter animals

affected with FMD to a duty to slaughter only those kept on premises confirmed as infected

with FMD. The 2006 Order implemented the majority of Directive 2003/85/EC and retained

some additional provisions from then existing legislation. The slaughter of susceptible

animals on infected premises remained the principal means of controlling an FMD outbreak.

The 2006 Regulations implemented the vaccination provisions of the Directive and placed

175 Directive 2003/85/EC, recital 25 176 Ibid., Article 50 177 Directive 2003/85/EC, Annex X 178 Directive 2003/85/EC, Article 50(3) and (4) and 89(3) in conjunction with Council Decision 1999/468/EC, Articles 5 and 7 179 Directive 2003/85/EC, Article 51 180 Ibid., Articles 2(v) and 52 181 Ibid., Articles 2(w) and 53 182 Article 3 and in the case of wild animals provision is made by Directive 2003/85/EC, Article 3(2) 183 SI 2005/3475 184 SI 2006/182 185 SI 2006/183

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the potential use of emergency vaccination to the forefront of FMD disease control albeit

second to the slaughter of infected animals.

The control of FMD is also supported by The Animal By-Products (Enforcement) (England)

Regulations 2013 (which implement Regulation (EC) 1069/2009 and prohibits bringing

catering waste on to premises where farm animals would have access to it),186 The Transport

of Animals (Cleansing and Disinfection) (England) (No. 3) Order 2003,187 The Animal

Gatherings Order 2010188 (which specifies biosecurity practice in order to prevent the spread

of disease at livestock markets and shows) and The Disease Control (England) Order 2003189

(which provides for movement restrictions on animals).

The Animal Health Act 2002 amended the 1981 Act to allow animals to be slaughtered where

necessary to prevent the spread of disease and not only those affected, suspected of being

affected, having been in contact with affected animals or exposed to FMD as had previously

been the case. This confirmed the suspicions of many that the extent of culling in 2001 had

been unlawful and raised concerns that a slaughter-only policy would remain for the

future.190

Significantly, however, the 2002 Act places a duty upon the Secretary of State to consider the

most appropriate method of preventing the spread of FMD which must include an

assessment of whether vaccination would be more appropriate than any other method of

disease control.191

Member states are obliged to have contingency plans in operation and national reference

laboratories must collaborate with the EU reference laboratory. In the UK, The Pirbright

Institute192 in Surrey is both the national and EU reference laboratory.

The Foot and Mouth Disease Control Strategy for Great Britain193 describes how a suspected

outbreak of FMD would in future be managed:

The strategy aims to provide information on the policies to be applied so all those affected by an outbreak of FMD can be better prepared to respond quickly and effectively to control it, mitigating the likely impact of the control measures.194

The Government welcomed Directive 2003/85/EC and the new control measures it

contained, in particular the use of emergency vaccination having earlier made it clear that

“the option of using emergency vaccination would be considered from the start of any future

FMD outbreak, on the basis of ‘vaccinate to live’ wherever possible.”195

186 SI 2013/2952, r4(1) 187 SI 2003/1724 188 SI 2010/460 189 SI 2003/1729 190 Abigail Woods, A Manufactured Plague: The History of Foot and Mouth Disease in Britain 1839-2001, Earthscan, 2004, pp150-151 191 Animal Health Act 2002, s15 192 Formerly known as the Institute for Animal Health. 193 November 2011 194 Defra, Foot and Mouth Disease Control Strategy for Great Britain, November 2011, p6 195 Defra, New EU Directive on Community Measures for the Control of Foot-and-Mouth Disease (FMD), 7 October 2003

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The Control Strategy makes it clear that while the slaughter or culling of animals remains the

principal means of controlling an outbreak of FMD196 a clear and much greater emphasis will

be placed on the role of vaccination than was the case in 2001. The Control Strategy

addresses questions of why, when, where and how to vaccinate and allied matters.197

Furthermore, it makes it clear that vaccination is preferred to the pre-emptive culling of

animals and the use of such powers provided for under the Animal Health Act 1981 is not

envisaged, a situation far removed from what took place in 2001.

7.2 The treatment of catering waste

Regulation (EC) 142/2011 defines 'processed animal protein' (PAP) as animal protein

derived entirely from Category 3 material which includes catering waste, defined as “all

waste food, including used cooking oil originating in restaurants, catering facilities and

kitchens, including central kitchens and household kitchens.”198 The definition is all-

embracing and includes food waste from domestic kitchens.

Regulation (EC) 1069/2009 lays down rules concerning animal by-products and derived

products not intended for human consumption and replaces Regulation (EC) 1774/2002

which it repeals. Catering waste remains a Category 3 animal by-product product199 and as

such subject to the prohibitions200 on feeding to:

a) Terrestrial animals of a given species other than fur animals with PAP derived from

animals of the same species.

b) Farmed animals other than fur animals with catering waste or feed material containing or derived from catering waste.

c) Farmed animals with herbage, grazed or cut, from land to which organic fertilisers or soil improvers, other than manure, have been applied unless a waiting period which ensures adequate control of risks to public and animal health of at least 21 days has expired.

d) Farmed fish with PAP derived from fish of the same species. Furthermore, Regulation (EC) 999/2001 prohibits feeding of PAP to ruminants and non-

ruminant farmed animals subject to certain exceptions.201 The prohibitions on feeding PAP

to farmed animals, intra species recycling and catering waste are all clear and unequivocal.

The presence of a prohibited ingredient in animal feed was a breach of the ban and a zero

tolerance approach was taken in each case.

7.3 Attempts to relax the rules

The first TSE Roadmap,202 published in 2005, was clear about the potential for future

changes to measures on TSE and the ban on PAP in animal feed. The downward trend, a

196 Op. cit., p15, para 6.8 197 Op. cit., Section 8, pp17-19 198 Regulation (EU) 142/2011, Annex I, para 22 199 Regulation 1069/2009, Article 10 200 Ibid., Article 11 201 Regulation (EC) 999/2001, Article 7 and Annex IV, Chapter I, point (b)(i) and Chapter II 202 European Commission, Communication from the Commission: The TSE Roadmap, COM(2005) 322 FINAL, 15 July 2005

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reduction of 35% since 2002, of positive BSE cases203 provided an opportunity to relax the

rules. The Commission concluded:

The relaxation of the measures should be risk based and reflect advances in technology as well as evolving scientific knowledge and would also have a positive impact on the competitiveness of the industries and farmers involved within the Community.204

The desire to move from a zero tolerance based approach to one on risk had been

established. The first tentative steps concerned the unavoidable presence of bones in up to

10% of beet pulp and the presence of small amounts of fishmeal in ruminant feed due to

cross contamination.205 The former was introduced in 2005 and extended to all feed

materials of plant origin in 2009206 and in 2008 provision for the use of fishmeal in feed for

young ruminants was made.207

In practice the Commission awaited the availability of tests which could discriminate

between non-ruminant proteins, so as to ensure compliance with the prohibition on intra-

species recycling, before taking forward further relaxation of the rules.208 Mammalian

protein is required to be subject to a form of processing which makes it hard to discriminate

between animal proteins by means of the then available analytical methods.

In 2010 the Commission published The TSE Roadmap 2209 which outlined its strategy for

TSE controls over the succeeding five years. The downward trend of positive BSE cases

continued and its impact on human health was more limited than had been feared. The

approach continued to be risk based:

It is impossible, however, to consider the complete elimination of risk as a realistic objective for any risk management decision in matters regarding food safety, where the cost and benefits of risk-reducing measures have to be carefully weighed in order to ensure the measure’s proportionality.210

The Commission was prepared to look at introducing a tolerance level for PAP in farm

animal feed and the scope for lifting the ban as it applied to non-ruminants:

PAP may be a source of proteins for non-ruminant farmed animals which need to be fed with high quality proteins. Considering that the transmission risk of BSE from non ruminants to non-ruminants is very unlikely, a lifting of the ban on the use of PAP from non-ruminants in non-ruminant feed could be considered, but without lifting the existing prohibition on intra-species recycling (e.g. poultry MBM could only be fed to pigs and pig MBM to poultry). Moreover the reintroduction of PAP in non-ruminant feed may enable the EU to decrease the dependence on other sources of proteins.211

A relaxation of the rules would, however, only be acceptable if validated analytical

techniques to determine the species origin of PAP were available.

203 Ibid., p4 204 Ibid., p16, para 5 205 Ibid., p6, paras 2.2.2.1 and 2.2.2.2 206 Regulation (EC) 163/2009, Article 1 207 Regualtion (EC) 956/2008, Article 1 which amends Regulation (EC) 999/2001, Annex IV 208 Regulation (EC) 1774/2002 209 European Commission, Communication from the Commission to the European Parliament and the Council: The TSE Road Map 2: A Strategy Paper on Transmissible Spongiform Encephalopathies for 2010-15, COM(2010)384 final, 17 July 2010 210 Ibid., p13 211 Ibid., p7, para 2.2.3

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In 2013 the TSE Regulation (EC) 999/2001 was amended to permit the feeding to

“aquaculture animals of processed animal protein, other than fishmeal, derived from non-

ruminants and compound feed containing such processed animal protein.”212 In the UK this

relaxation of the rules has not in practice been taken up, a year after it came into effect the

FSA reported:

… so far, no feed manufacturers in the UK have applied for our approval to take advantage of this EU derogation. The feed industry have expressed their support for this measure but are unlikely to utilise it because most pig and poultry PAP produced in the UK is used in pet food, and for commercial reasons that is expected to remain the case.213

The FSA note that the Commission was drafting legislation which would permit the use of

poultry PAP in pig feed and pig PAP in poultry feed but, due to a delay in validating DNA-

based PCR tests to prevent intra-species recycling, no immediate change to the law was

expected.

While the Commission remains intent on preventing intra species recycling it will prove

difficult to bring about any change in the regulations governing catering waste. The challenge

of separating meat derived from different species in catering waste may prove insuperable:

A relaxation of the feed ban maintaining the prohibition of intra-species recycling would imply that food waste derived from different species would have to be segregated and the control mechanisms be in place to avoid cross-contamination. This would carry significant compliance costs, which might inhibit uptake. On the other hand, these measures would only seem possible in the manufacturing and retail sectors, where large amounts of single ingredients are handled in a structured fashion and controls can be implemented and monitored.214

The relaxation of the prohibition on manufacturing and retail catering waste could be

undertaken as a first step in making best use of this valuable feed resource.

8 A Proportionate and Rational Legal Framework?

The question posed at the outset was whether, notwithstanding the enormity and impact of

the FMD outbreak in 2001, the ban on feeding catering waste to animals which followed

shortly was justified – was it a sledgehammer to crack a nut?

The ban was driven by the events which unfolded after FMD was discovered in an Essex

abattoir on 19 February 2001. Whether the chaos which followed is attributed to MAFF’s lack

of preparedness and capacity to act or the fact it was simply overwhelmed by the scale of the

outbreak, the picture painted is one in which those charged with managing the outbreak

wanted to be seen to be doing something.

Illegally imported meat, present in unlawfully processed swill feed used on Burnside Farm,

was widely held to have been the source of FMD. Who was responsible for importing it?

212 Regulation (EU) 56/2013, Annex, point 2 substitutes a new Annex IV in place of that contained in Regulation (EC) 999/2001, see Annex IV, Chapter II, point (c) as amended. 213 Food Standards Agency, A Report Summarising the Trajectory of Change of the Controls on TSEs from Emergence to the Present Day and Beyond, Report to the Board, 11 June 2014, p15 214 Defra (2013), p22

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What failings allowed the import of infected meat? Why was the meat not detected on

import? Who purchased the meat? Where was it prepared? All these and other questions

remain unanswered, leaving the Waugh brothers scapegoats having been responsible for the

source of the first manifestation of FMD.215 It followed that a ban on swill feeding would be

an easy next step. The Minister, after all, was already persuaded.216

Much about what happened could be cited in support of the view that a sledgehammer was

the tool of first choice, but just four aspects are sufficient for this purpose:

1. Whether the root of the problem was a deficiency in the law or a matter of law

enforcement.

2. The extent to which adequate contingency planning, preparation and speed of response would have made a difference.

3. The extent to which recognition of the overall economic, social and environmental costs may have led to different outcomes.

4. How an understanding of the nature of FMD-as-plague had been ‘manufactured’ would have led to different policy choices.

8.1 A question of law or law enforcement The production of food invariably carries some degree of food safety risk.217 Pigs have been

fed food waste for hundreds of years and in return have provided us with meat. The process

of swill feeding carries risks commensurate with many present in the food chain, which can

be mitigated and backed up with the force of law.

The Animal By-Products Order 1999218 regulated the swill feeding activities which took place

on Burnside Farm. The Waugh brothers made no isolated mistake but operated Burnside

Farm in clear breach of the 1999 Order consistently over an extended period of time. The

responsible authorities had knowledge of these failings but did not act.219 The Ombudsman

found maladministration on the part of Mr Dring, the SVS vet responsible for inspecting the

farm. While Mr Dring contributed evidence to earlier inquiries in other ways, a detailed

statement he prepared was available only to the Ombudsman, not the Anderson Inquiry or

earlier reviews.220

The law is only ever as effective as those responsible for its enforcement. When effective

enforcement breaks down it is simply a matter of time before something goes wrong. Only

four years earlier Pennington forcefully made the point that food safety is far too important

for light touch regulation.221 When the enforcement involves maladministration which

questions the competence of those responsible the wait before something goes wrong

becomes all the shorter.

215 See p13 216 See p20 217 See p6 218 SI 1999/646 219 See pp11-13 220 Parliamentary and Health Service Ombudsman (2007), Annex C, p89, para 36 221 See pp12-13

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8.2 Contingency planning and speed of response The Waugh brothers were not responsible for the scale of the outbreak, whatever view may

be taken about its cause. The lack of contingency planning, the “best kept national secret”,222

may well have been fuelled by complacency. It had, after all, been 34 years since the last

outbreak in 1967.223 On the other hand this ought to have focussed thinking since FMD

remained a global threat and had not been eradicated.

MAFF’s calamitous management of outbreak control when FMD returned compounded the

situation. The initial response lacked urgency, valuable time was lost, animal movement

restrictions were slow to be implemented, the approach to vaccination was developed

alongside fighting the outbreak and the culling policy was in disarray.224 It comes as no

surprise that a serious veterinary incident turned into a national disaster.

On one estimate, the prompt imposition of movement restrictions would alone have resulted

in an outbreak on at least half the scale.225

8.3 The economic and environmental cost

There can be no dispute that £8 billion, the generally accepted cost of the 2001 outbreak of

FMD, was a high price to pay. It need not have been so high. Bernard Vallat, Director

General of the OIE puts the position clearly:

Vaccination […] is undoubtedly the most cost-effective means of preventing and controlling, and even eradicating, infectious diseases.226

The example of Uruguay was both a timely and salutary illustration of how FMD can be

managed effectively at a fraction of the economic and social cost.

The prohibition on the use of catering waste in animal feed took scant account of the direct

costs to pig farmers227 and no account of the ongoing environmental cost. The latter included

vastly increased imports of soybeans, grown in Amazon rainforest cleared for the purpose

and transported half-way around the world to Europe.228 When the EU followed in the path

of the UK and prohibited catering waste in animal feed the following year there was little or

no debate on the environmental costs, certainly no cost-benefit analysis, only reliance on an

unspoken concensus which emerged and the ban went ahead without question or challenge.

The ban also closed the door on one simple solution in addressing the growing and seemingly

intractable problem of preventing food waste: optimise catering waste by sending it to animal

feed.

222 See p13 223 Abigail Woods, A Manufactured Plague: The History of Foot and Mouth Disease in Britain 1839-2001, Earthscan, 2004, p148 224 See pp15-16 225 See p14 226 P-P Pastoret, M Lombard and A A Schudel (editors), ‘Animal Vaccination – Part1: Development, Production and Use of Vaccines’, Scientific and Technical Review, Volume 26, Number 1, OIE, 2007, p11 227 See pp4-5 228 See pp5

36

8.4 FMD is not a plague

FMD-as-plague was a view which had become cemented in the minds of policy makers at the

turn of the twentieth century and remained unshakeable, although punctuated with heated

debate over vaccination, for a hundred years. It still drove government policy and legislation

in 2001.

Woods argued that if cattle plague had not invaded Britain in the mid-nineteenth century,

FMD-as-plague would never have existed, it would not have been manufactured229 and

“FMD would have continued to be a private farming affair instead of a high-profile public

issue with major social and economic implications for entire rural communities.”230

8.5 Conclusion

FMD and swill feeding to pigs on Burnside Farm will be closely associated for many years

still to come. While the public at large may be forgiven for thinking a ban on catering waste

in animal feed was the right thing to do, more is expected of policy makers and legislators. A

sledgehammer, the full weight of domestic and EU law taking a zero tolerance approach,

brought an end to a method of meat production with a tradition going back hundreds of

years.

It was not swill feeding which caused FMD. A failure of enforcement was a significant

contributory factor in creating the circumstances which led to the outbreak. The sheer scale

of what occurred was a failure in contingency planning and outbreak control management.

The absence of a well prepared and reasoned vaccination policy would have contained much

of the cost of the outbreak which went far beyond official calculations and we are still paying

the price. Finally, the manufactured role of FMD-as-plague elevates a non-fatal relatively

minor ailment to an importance it ought not to possess.

One commentator on the 2001 outbreak rather acerbically explained:

So there you have it: the research, it seems, was wrong, the science was outdated, the slaughter unnecessary, the policy unethical, and the strategy ineffective. Apart from that, things seem to have been just fine.231

On one view the nut which was cracked was a recurrent issue, an occasion of light touch

enforcement in matters of food safety. Prohibit the use of catering waste in animal feed by

means of draconian legislation which when breached carries a maximum penalty of 2 years

imprisonment232 and, so the argument goes, the problem is solved. The ban, however, is not

enforced, there are no inspections and swill feeding, albeit illegal, will likely still continue.

I know many farmers who regard it as so excessive that they regularly break [the ban], including a vet tasked with upholding the law.233

229 See pp7-8 230 Abigail Woods (2004), p19 231 Magnus Linklater, ‘Wasted nation: the truth about foot-and-mouth’, The Times, 26 April 2001 232 The Animal By-Products (Enforcement) (England) Regulations 2013 SI 2013/2952 rr17 and 20, and Schedule 1 233 Tristram Stuart (2009), p252

37

The alternative view may be that the nut is FMD itself. The manufacture of FMD-as-plague

necessitated a panoply of legislative controls and accorded the disease a status it simply does

not warrant.

From the beginning of the recent outbreak it was clear that no one had learnt any lessons from the past when they embarked on the mass slaughter of so many animals, the majority of which, it seems, were healthy. It was not the largest outbreak in the world, but it was the one in which the most animals were killed.234

If we are able to make a more rational appraisal of the nature of FMD, we may then be able to

put the risks associated with swill feeding into better perspective.

The world has moved on and lifting the ban on feeding catering waste to animals does not

mean we turn the clock back to the days of swill feeding as it existed 15 and more years ago.

Catering waste is a valuable source of animal feed, today’s technology is more than capable of

coming up with a means of processing catering waste so it can safely be used with

confidence. The fact that:

… recycling practices can be carried out in other countries without incurring problems with animal and human health illustrates that there are opportunities to recycle food waste into animal feed in the UK safely.235

In the UK some 15 million tonnes annually of food and drink is wasted in the food chain,

domestic food waste accounts for 7 million tonnes. While much of this is avoidable, up to 3

million tonnes, is unavoidable.236 The prohibition on the use of catering waste in animal feed

resulted in the loss of a valuable resource and “since the ban an extra 1.7 million tonnes of

biodegradable stuff is being sent to landfill or washed down the sewers.”237 There is plenty of

scope for using all unavoidable catering waste in animal feed. This would come with added

benefits, which include providing pig farmers and others with more competitively priced

animal feed, making possible a more appropriate use of South American soybeans presently

used to feed pigs and provide some relief for the beleaguered Amazon rainforest.

Whichever way you look at it, we have ended up with a contemporary legal framework which

is neither proportionate to the risks it seeks to address, nor is it entirely rational.

234 Second Reading of the Animal Health Bill in the House of Lords, The Countess of Mar, HL Deb 14 January 2002, vol. 630, col. 911 235 Defra (2013), p23 236 Defra, Digest of Waste and Resource Statistics: 2015 Edition, January 2015, p38 237 HC Deb 05 February 2004 vol 417 cc895-6, Boris Johnson MP

38

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