Temperature food should be kept at - Legal Issues

The Food Hygiene (England) Regulations 2005 contain rules as to the temperature at which certain foods should be stored.

The regulations do not apply in relation to unprocessed and processed products of animal origin, which are dealt with by Regulation 853/2004 of the European Parliament and Council. The regulations also do not apply to food business operations carried out on a ship or aircraft.

Chill holding requirements

The chill holding requirements apply to those who carry out any commercial operation, for example, restaurateurs and shop keepers. However there are some exemptions to the rules and specific rules relating to mail order transactions. 

Under the regulations it is a criminal offence for a person to keep any food which is likely to support the growth of pathogenic micro-organisms or the formation of toxins at or in any food premises at a temperature above 8°C unless one of the exemptions applies.

Mail order deliveries

An exception to this is where food is being delivered to a final consumer as part of a mail order transaction.  

In the case of mail order transactions where food is likely to support the growth of pathogenic micro-organisms or the formation of toxins and is being or has been delivered by post or by a private or common carrier to the final consumer, it is a criminal offence for a person to supply by mail order any food at a temperature which has given rise or is likely to give rise to a risk to health.

General exemptions

There are some general exemptions from the chill holding requirement. These are as follows: 

• Food which has been cooked or reheated, is for service or on display for sale and needs to be kept at or above 63°C in order to control the growth of pathogenic micro-organisms or the formation of toxins (any such food will instead be covered by the hot holding requirements, which are discussed below); 
• Food which, for the duration of its shelf life may be kept at ambient temperatures with no risk to health; 
• Food which is being or has been subjected to a process such as dehydration or canning intended to prevent the growth of pathogenic micro-organisms at temperatures (However, where the food was contained in a hermetically sealed container and the container has been opened the chill holding requirements will apply); 
• Food which must be ripened or matured at ambient temperatures (However, once the process of ripening or maturation has been completed the chill holding requirements will apply); 
• Raw food intended for further processing (including cooking) before human consumption, but only if that processing, if undertaken correctly, will render that foot fit for human consumption; 
• Food to which Council Regulation 1906/90 applies (this is a European regulation relating to certain marketing standards for poultry meat); and 
• Food to which Council Regulation 1907/90 applies (this is a European regulation relating to certain marketing standards for eggs)

Defences

There are a number of defences available to a person accused of an offence under the chill holding requirements. These are set out in detail in The Food Hygiene (England) Regulations 2005. These include situations where a manufacturer has recommended that a type of food be kept at a higher temperature than 8°C and situations where there is a temporary breakdown of equipment.

Hot holding requirements

The hot holding requirements apply to anyone who in the course of the activities of a food business keeps food at or in food premises. 

Under the regulations it is a criminal offence for a person to keep any food at a temperature below 63°C which has been cooked or reheated and which is for service or on display for sale and which needs to be kept at or above 63°C in order to control the growth of pathogenic micro-organisms or the formation of toxins.

Defences

The Food Hygiene (England) Regulations 2005 set out in detail the defences available to a person accused of an offence under the hot holding requirements. For example, a defence may be available where a well-founded scientific assessment of the safety of the food at temperatures below 63°C has concluded that there is no risk to health if, after cooking or re-heating the food, the food is held at a temperature below 63°C.