Introduction

Along with other market driven consumer protection in the EU and internationally[1], the aim of the Regulation (EC) No. 1924/2006 on nutrition and health claims [2] (the Regulation) is to ensure that consumers are provided with adequate and reliable information be able to make informed food choices [3]. The Regulation defines a ‘nutrition claim’ as a claim that a food has particular beneficial nutrition properties such as ‘high in fibre’. A ‘health claim’ is a claim that health benefits can result from consuming a food, such as ‘helps build strong bones’.

An ‘information asymmetry’ as defined by Stigler [4] exists between suppliers and consumers of food that justifies regulatory intervention[5]. This is because consumers are not well placed to judge the nutritional and health characteristics of a food as such attributes are latent and undiscoverable[6]. Therefore issues arise where more readily assessed attributes such as price and sensory qualities of a food dominate consumer decision-making [7], the outcome of which may lead to poorer nutritional, health and obesity status for consumers. Therefore, the misinformed decisions of consumers may jeopardise their health and welfare. Where a nutrition or health claim is made, the Regulation requires that such a claim ‘shall be based on and substantiated by generally accepted scientific data’ (Article 6).

The rationale of the Regulation [2] is to provide information in order to correct the quality signalling problem rather than to impose a restriction, limit or ban on the sale of nutritionally poor foods [8]. The efficacy of the Regulation may depend on how enforcers go about the operational task of enforcement. Enforcement might be examined through the economic perspective. From this standpoint, the benefit of food law enforcement is an economic good like any other.

The purpose of the study was to identify attitudes, values and practices of enforcers: namely trading standards and environmental health officers, when faced with the problem of non-compliance with the Regulation. There were similarities between the enforcement of the Regulation and the broad range of other legislation enforced by officers.

Methodology

The study was a phenomenological investigation into the experiences and beliefs of enforcers, where the themes were confined by a reductive approach. A non-probability purposive sample [9] was chosen to capture those who were most likely to provide useful insights to the practice of enforcement in the relevant area. Specifically, a number of the trading standards officers among the sample population were identified by their trade body, the Trading Standards Institute and by each other as experts in health and nutrition claims rather than in many of the other areas of enforcement in which environmental health and trading standards officers are commonly involved. The environmental health officers were identified as having similar expertise by referral. The participants were approached by an invitation sent by email. Of the 25 participants contacted, 20 agreed to take part. All 20 were interviewed notwithstanding that data saturation was reached before completion, that is, where the a priori themes were adequately represented in the data.

Ethical approval was obtained by Manchester Metropolitan University prior to data collection. In this respect, the key concerns for participants were preserving the integrity of their investigations and commercial sensitivity of the businesses who they were investigating. Assurances of confidentiality were provided and the data were anonymised at transcription to prevent identification of participants or food suppliers. The participants provided their consent to be interviewed by email.

In the course of this study, eighteen semi-structured interviews were conducted with twenty respondents. Pseudonyms have been adopted to refer to the participants to conceal their identities (see Table 1).

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Table 1. Description of interviewees and their specialist areas of regulation.

https://doi.org/10.1371/journal.pone.0201178.t001

The interviews were conducted in meeting rooms at the offices of the respondent’s employer: the regulatory services department of a local authority. The interviews were of a duration of between 45 and 90 minutes. The interviews were recorded on a digital recording device after obtaining the respondent’s consent.

All of the above officers were employed in authorities in the North West of England except for Dexter and Theo who are based in the North and William and Julie who were attached to authorities in the South. Each of the interviews were conducted, transcribed and coded by one investigator, AP. The transcripts were uploaded into NVivo (version 10, QSR International) and a thorough process of data coding and identification of themes completed. The coding process involved identification of a significant statement and encoding it [10] and a useful code was one that captured the qualitative richness of the phenomenon. The themes were derived at deductively with reference to the themes in the interview guide. Themes and the relationship between these themes were systematically organised into thematic networks summarising the main influences on enforcers [11].

Results

While the general direction of the work was influenced by the literature and the broader themes might be said to exist a priori, a number of more detailed and particular themes emerged as a result of the analysis of the interview data. There was broad agreement among the interviewees in the major areas of contention and this lead to the emergence of themes. Some of the themes are explored in detail and form the basis of the discussion here and this is based on their relevance to the research question of how enforcers enforce the Regulation and their use of discretionary powers in taking enforcement action.

A notable theme which emerged from the data is the enforcement officers’ identification of themselves as prosecutors with sole and direct responsibility to the public: a view consistent with the deterrence model presented by Reiss [12] and developed by Hawkins and Hutter [13]. A further related theme was a view of enforcers as advisors to business. Such an approach is rooted firmly in the accommodative model of Braithwaite et al where officers seek to ‘educate, persuade and cajole’ [14]. In this capacity, the enforcer adopted techniques such as education, persuasion and negotiation to deal with cases. In this role, enforcers’ tactics were more informal.

Ethan captures the duality of his position as an enforcer and how he reconciles the functions:

We always have to play two roles. Supporting businesses and the enforcement but they do tend to blend together quite well I find. And most businesses want to be compliant, and they know that, so if you can help them be compliant then they’ll you know, go with you.

Traditionally enforcers have had an arm’s length relationship with business. However, Ethan, like his contemporaries, is not uncomfortable with modern enforcement practice where enforcers play a role in supporting businesses in their efforts to ensure compliance with the law. This would support the notion that ‘an advisory approach to regulatory enforcement may be a necessary component of an effective enforcement strategy’ [15].

Similarly, at the start of the interview where the enforcement officer is invited to describe their role and main duties, Chloe describes her view of her role primarily in terms of enforcement as her main purpose:

Well, enforcement is our main, we are regulators, enforcement is our main business advice and primary authority advice is probably secondary to that.

It is notable how Chloe distinguishes between the roles of enforcer and advisor. She sees herself as an advisor but able to switch from that to regulator. This is at odds with the theory that advice is an integral part of the compliance strategy as described by Law [15] but compatible with the regulatory pyramid of Ayres and Braithwaite [16–18] where enforcers move up and down the range of possible regulatory measures.

Later, Chloe describes how consumers might threaten to report matters to the local press:

Consumers would threaten companies by saying that they would report cases to us or that they would call the xxx News [the local newspaper]. Environmental health stories would often be front-page news. And if we didn’t take the action they wanted, they would report us to the paper

In her view, there is a public perception that she should be taking a deterrence-based approach as described by Reiss. It is not clear why Chloe feels that public expectations would require that she does not provide advice to business. This may be due to a failure by the public to appreciate the nature of the enforcer’s role and in turn, this may be attributed to the lack of communication by enforcers about their duties. Certainly, Chloe’s remark regarding consumers indicates that she faces some resistance to the idea of helping business and that she ought to police and prosecute non-compliant business. However, in her practice Chloe actually adopts an advisory role. In fact Chloe goes much further when she actually speaks of promoting economic growth as an objective in itself and part of her work rather than as a means of securing compliance: ‘we’d give assistance with small businesses because we’ve got obviously priorities to promote prosperity and business growth in xxxx.’

The role of economic regulators to deliver a competitive marketplace in order to provide an environment for business growth is well established [19,20]. The literature on enforcement practice does not however document the role played by a consumer protection enforcement agency in delivering business growth. To a degree, this may arise from the unique nature of local authority work where the authority has a duty to promote the welfare of its local residents including job creation.

Charlotte revealed that the provision of advice can provide the initial engagement between enforcer and a firm on the subject of the application of nutrition and health claims. When asked what experience, if any, she had of nutrition and health claims, she responded:

Some of the food manufacturers based in this area or other food businesses will ring up saying I want to make a claim on my label and I’ll give advice.

Amelia went on to provide specific instances of the cases of such advice:

We have provided advice to a sports supplements importer…We have also been involved in giving advice to an internet trader for vitamins.

The reference here is to advice provided in response to a request for assistance from a firm. In their paper Really Responsive Regulation Baldwin and Black stress the case for regulators to be responsive to not only the attitude of the firm but also the ‘operating and cognitive frameworks of firms’ [21]. In responding to the specific request for advice, enforcers or regulators avoid the ‘expensive process of shooting in the dark’ [21] as the advice is targeted to meet an expressed need.

In both deterrence and accommodative approaches, the enforcer sought to achieve the same goal: compliance with the regulation and therefore to stop the offending behaviour in the case in hand and to deter such behaviour in other cases. The roles of enforcer and advisor were not mutually exclusive; in fact, it was common for the enforcer to move from the position of advisor to prosecutor in the same case as lower level action failed and the case escalated to stronger measures. ‘Initially advise them, yes. I mean if they don’t listen to advice then you can take more formal sanctions but most of them will comply’ Ethan. This confirms the notion of escalation up the regulatory pyramid of Ayres and Braithwaite et al [16].

Discussion

In relation to the enforcement of the Regulation, Hawkins and Hutter capture the central difficulty thus; ‘the task of a regulatory bureaucracy is, by various means, to induce a potentially unwilling business organisation to bear costs which it would in many circumstances not wish to assume’ [13]. The costs of compliance will not be incurred in the absence of coercion by enforcement officers. Such officers play a significant role in influencing the business to incur compliance costs and to do so in a way which provides the optimal level of protection for consumers.

While the emphasis of this study was on the enforcement of the Regulation, the study found evidence for both the deterrence and accommodative approaches of enforcement across the range of legislation. When interviewed, enforcers identified themselves primarily as enforcers whose first duty was to the public. A further related theme, which is not found in the literature, but which has more recently emerged is the view of enforcers as advisors to business. Such an approach is rooted firmly in the accommodative model of Braithwaite et al where officers seek to ‘educate, persuade and cajole’ [14]. In this capacity, the enforcer adopted techniques such as education, persuasion and negotiation to deal with cases. In this role, enforcers’ tactics were more informal. Such a step may be seen a further step along the accommodative path where enforcement officers are less enforcers in the traditional sense and they begin to take on the characteristics of advisors and advisors.

Marc Law raises the notion that ‘an advisory approach to regulatory enforcement may be a necessary component of an effective enforcement strategy’ [15]. The data in this study showed evidence of the engagement in advice as part of enforcement. One might have expected there to be some angst about fulfilling what appear to be conflicting roles, however respondents appeared to be able to switch between the two without any apparent difficulty.

In examining this advisory function, the communication between the firm and the regulator is found to demonstrate an awareness of the responses required to not only the needs and attitude of the firm but also the ‘operating and cognitive frameworks of firms’ [21]. Examples of this are evident in the commercial nature of the advice on claims for sports supplements made by internet-based businesses.

The data from the sample interviews of enforcers in this study shows how the roles of advisor and enforcer are taken on and adapted to suit the circumstances. This supports the notion of escalation up the regulatory pyramid of Ayres and Braithwaite et al [16]. Sometimes, even in the same case, enforcers would move up but less easily down the pyramid of regulatory responses.

The study found the relationship of local authority advisor and firm differed from that of the retained advisor and firm in some important respects. There was a willingness to challenge the advisor based on observations of what appeared to be inconsistent practice and the tolerance of non-compliant claims in circulation. This raises questions of fairness to which there appears to be no wholly satisfactory answer from enforcers. The conflict between the role of advisor and prosecutor is felt most keenly when faced with the prospect of action from another authority which challenges or undermines the advice provided to the firm. The overriding concern from firms however is for consistency and certainty for the advice which they receive. This places great pressure on enforcers to provide independent, bespoke, complex and commercially aware advice that will face up to scrutiny and possible challenge by experienced advisors. Not surprisingly, the data showed some faltering of confidence among officers (see Dexter above) particularly when faced with the absence of the coordination previously provided by Local Authorities Coordinators of Regulatory Services (LACORS).

The data were collected soon after the implementation of the Health and Social Care Act 2012 which imposes significant obligations on local authorities for improving the health of their populations. The responsibility lies primarily with a specialist public health team led by the director of public health supported by existing expertise in areas such as environmental health and trading standards. As such the study highlights the scope for a joined up and strategic approach within local authorities. Many of the officers interviewed reported being subjected to increasing demands from business for advice with expectations of service levels resembling those within commercial practice. Against a background of cuts in local authority services, this represents a further strain on resources. The difficulties to which it gives rise are underscored by the fact that, in the absence of a primary authority agreement, such advice is provided without charge.

Conclusion

The study sought to identify attitudes, values and practices of enforcers: namely trading standards and environmental health officers, when faced with the problem of non-compliance with the Regulation. The interviews with enforcers revealed several themes; including that of the application of bureaucratic discretion, deterrence, accommodation and the enforcer as advisor, which were considered to be most relevant in influencing the type of action to take in applying their discretionary powers. The recommendations from this work would suggest the need to promote an awareness of the costs of the very broad nature of the work of enforcers and the extent to which their duties extend to an advisory function. Such insights can contribute to the understanding of the enforcement action for enforcers and health professionals and may be applied to other jurisdictions where enforcers enjoy similar discretion. A fertile direction for future research would be a comparative study to explore how enforcers in other jurisdictions approach similar problems.

Supporting information

Acknowledgments

This paper is based on the PhD thesis The regulation and enforcement of nutrition and health claims for food Patel, Ajay (2015) http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.680224