Suppliers that fail to use up-to-date scientific techniques to test the authenticity of ingredients and species will lack any defence if food fraud lands them in court

Supermarkets and major manufacturers have always been conscious of the importance of ensuring that claims such as "organic" and "free range" are true. Historically, thorough paper-based tracing systems and inspection programmes have provided sufficient reassurance that products do what they say on the packet.

Last month, however, Tesco was exposed for selling premium "corn-fed" chicken that had not consumed enough maize to meet minimum requirements in the UK.

It's not the only one to be caught out. Over the past few months, numerous food "fraud" cases have been revealed in relation to "free range" eggs, "wild" salmon and "organic" foods at a number of points in the supply chain. So why are so many incidents coming to light?

In a nutshell, it's down to significant advances in scientific testing. On 17 May FSA chief scientist Dr Andrew Wadge presented his first Annual Report on Science in the FSA to the agency's board. He highlighted the work being done to develop DNA methods to verify the descriptions given to foods.

There are already tests to identify: fish and meat species in order to check processed fish or meat products; the adulteration of durum wheat by common wheat in pasta; the use of cheap rice varieties in basmati rice; and the adulteration of citrus juices with other fruit juices.

Research has been undertaken to convert the DNA tests to work in a simple and cheap "lab-on-a-chip" system affordable by local public analysts. The FSA's Authenticity Research Programme is also working on scientific tests to identify meat in vegetarian foods and "organic" foods that have not been produced organically.

What this all means is that food businesses will have to change their approach to checking the authenticity of ingredients. Simply relying upon promises by suppliers together with tracing and the odd inspection will not uncover many cases of fraud.

There are serious legal ramifications if you get it wrong. Under the Food Safety Act and the Trade Descriptions Act, it is illegal to make false claims about the nature or history of food. Now that scientific tests are available, it will be difficult for a company to rely upon the "due diligence" defence unless it has an adequate programme for scientific testing of its supplies.

However, the worst case scenario for a retailer is a reputational risk rather than legal. Typically, for a first offence, any fine is likely to be confined to the low tens of thousands of pounds. Second time around, however, the situation would be much more serious, particularly since the retailer has been charging a premium price for the goods.

If the risk of fraud has already been exposed, and could then have been controlled through scientific testing, then the courts are likely to take the view that substantial fines would be appropriate.

With the science developing so rapidly, checking programmes now need to be constantly refreshed to ensure they are as advanced as the science allows. I would advise any food business to engage in a periodic review of all its claims and labelling, asking the question: 'Can this now be scientifically checked?' If so, careful thought needs to be given to the costs and benefits of using the new technology. n

By Owen Warnock, partner and food law expert at Eversheds LLP