Introduction
The law enforced by Suffolk Coastal Port Health Authority (SCPHA) sometimes requires a formal sample is taken and sent for laboratory analysis. Samples may also be taken for monitoring purposes or in response to intelligence. If the sample fails and the importer disputes the result, there is a process set out in law that must be followed.
When formal samples* are taken by SCPHA for laboratory analysis, other than microbiological testing, the sample is normally divided into three parts. This is carried out either by SCPHA at the time of sampling or at the Laboratory after preparation of the sample for testing.
Part 1 of the formal sample
Enforcement sample – this is the SCPHA sample and will be analysed by the laboratory appointed by SCPHA.
Part 2 of the formal sample
Trade (Defence) sample – this is the importer’s sample portion which is also referred to as the defence sample. This can be made available to be analysed by the importer’s own laboratory.
Part 3 of the formal sample
Reference (referee) sample – this is the referee sample. It is retained for independent (arbitration) analysis should there be a dispute.
* Note: If a sample is not ‘formal’ then the process above does not apply. ‘Informal’ or ‘routine’ samples cannot be used for enforcement purposes. These are only for data gathering.
What happens when the ‘Enforcement sample’ result is unsatisfactory?
When the enforcement sample result is unsatisfactory the person responsible for the load or the importer (as appropriate) will be notified via email of the result. The ‘consultation document’ issued by SCPHA will advise the options available and will ask that a decision is made within 7 days of the notification.
There may be an option of analysing the ‘Defence sample’ and ‘Referee sample’ if appropriate. Please read all the below information before making a decision on how to proceed.
Analysing the ‘Defence sample’ (Importer’s sample)
If the importer wishes to arrange analysis of their ‘defence sample’, then arrangements need to be made to send the sample to a suitably accredited laboratory for analysis:
The laboratory selected cannot be the same laboratory that SCPHA used as it would be considered a conflict of interest. The laboratory must be accredited to carry out the required tests on the product to the recognised ISO standard (https://www.ukas.com/accreditation/standards/laboratory-accreditation/food/ ).
There is a list of approved official feed and food control laboratories available on the FSA website . (Please note that other accredited laboratories may also be used).
When an appropriate laboratory has been selected, email details of the selected laboratory (company name, address, named contact, email address and telephone number) to port.health@scpha.gov.uk
SCPHA will need written confirmation of which dispatch type (same-day or overnight delivery) is to be used along with acceptance of the associated costs, including additional insurance if required/requested.
Once written confirmation has been received, SCPHA will confirm suitability of the selected laboratory.
If the retained portion of the sample is at the SCPHA appointed laboratory: SCPHA will contact their laboratory and ask them to dispatch the Defence sample to the selected laboratory.
If the retained portion of the sample is at the SCPHA office: it will be the responsibility of the importer (or their agent) to arrange for the Defence sample to be collected from SCPHA and delivered to the selected laboratory.
Further details are below in the section titled ‘How to request the analysis of failed laboratory samples’.
Once the sample has been collected by the courier, any liability for loss or damage is with the courier, not SCPHA or the dispatching laboratory.
If your sample is rice or rice products from China being analysed for genetically modified material, you must follow the guidance from the Laboratory of the Government Chemist (LGC) otherwise your result will be deemed to be invalid. The advice can be found here:
If the defence sample result does not match the SCPHA result a further analysis can be carried out on the referee sample (see below).
By-passing the requirement to have the ‘Defence sample’ analysed
It is sometimes possible to by-pass this stage and send the referee sample directly to the Laboratory of the Government Chemist (LGC) (see the following section) without the importer’s own analysis being conducted. This must be carried out with the prior consent of LGC and is usually in exceptional circumstances. If this is carried out then the sample costs from LGC may be significantly increased and SCPHA will not be responsible for 50% of the costs as in the standard procedure, i.e. the Importer will be responsible for all costs.
Analysing the ‘Referee sample’ to resolve disputed analysis results
In the UK the Official Arbitrator is the Laboratory of the Government Chemist (LGC). The Government Chemist will carry out further analysis on the referee sample and will make a binding decision. The analysis that is carried out is extensive and the process is very detailed so this analysis can be more time consuming than the official control laboratory analysis.
LGC will analyse the referee sample and provide the final result and decision for the consignment. This decision must be adhered to by all parties.
SCPHA will pay 50% of the final analysis cost, and 50% of the courier costs where there is a dispute between the results of the SCPHA sample and the defence sample.
If the Importer wants to use the LGC arbitration service, it is the importer’s responsibility to contact LGC and make initial arrangements. Further details of the procedure are available from the LGC (see link above).
Once the dispute has been raised LGC will then contact SCPHA to get the sample details.
SCPHA will need written confirmation from the importer of the acceptance of the associated costs.
If the retained portion of the sample is at the SCPHA appointed laboratory: SCPHA will contact their laboratory and ask them to dispatch the Referee sample to LGC.
If the retained portion of the sample is at the SCPHA office: it will be the responsibility of the importer (or their agent) to arrange for the Referee sample to be collected from SCPHA and delivered to LGC.
Further details are below in the section titled ‘How to request the analysis of failed laboratory samples’.
Once the sample has been collected by the courier, any liability for loss or damage is with the courier, not SCPHA or the dispatching laboratory.
When is retesting not possible?
In the case of microbiological samples / contaminants, due to the highly perishable nature of the products concerned a sample for referee analysis may not be provided. There are also issues with the distribution of micro-organisms within a food consignment which may not be homogenous (evenly distributed). For example, if Salmonella is detected in the test sample but not in the defence sample this does not mean that Salmonella was not present and that the food is safe to eat.
The process will depend on where retained samples portions are held. Please see the two possibilities below.
Check with SCPHA to confirm where the retained samples portions are. Then follow the correct procedure.
Samples retained by the SCPHA appointed laboratory
There is a form for requesting analysis of the ‘Defence’ sample or ‘Referee’ sample.
The request form for analysis of failed laboratory samples can be found here.
This form must be completed for each request and emailed to port.health@scpha.gov.uk . Please include the container number in the email subject line.
Samples retained by Port Health
It will be the responsibility of the importer (or their agent) to arrange for the retained Defence (Importer’s) sample to be collected from SCPHA and delivered to the agreed laboratory.
