This year, the State Food and Consumer Service (hereinafter - the service) plans to conduct more than 44 thousand scheduled inspections (almost 12 thousand more than in 2018). Among the planned inspections, 22,000 will be conducted in the areas of safety and certain indicators of food quality and veterinary medicine.
It should be noted that from January 1, the moratorium on inspections of enterprises, introduced by the Law of Ukraine "On temporary features of state supervision (control) in the field of economic activity" has expired. The lifting of the moratorium did not affect the service's ability to conduct inspections, as the law did not apply to inspections of this body.
So what's new in the inspections of the State Consumer Service?
|Cooperation between the State Food and Consumer Service and the State Labor Service
In early 2019, the official website of the Cabinet of Ministers of Ukraine reported that the State Food and Consumer Service and the State Labor Service have agreed on joint actions in the field of de-shadowing of employment and income. Similar messages were published on the official websites of the services themselves.
|The need for cooperation is due to the fact that after inspections by the State Food and Consumer Service of market operators, inspectors recorded not only cases of violations that fall within the competence of the State Food and Consumer Service, but also the facts of illegal employment.
To date, relevant memoranda of cooperation have been signed between the services at the regional level, in which the services have agreed to exchange the information they receive during inspections. The grounds for conducting inspections by the State Labor Inspectorate to identify undocumented employees (inspection visits) may be notification of other controlling bodies about violations of labor legislation. Such a ground is determined by the Resolution of the Cabinet of Ministers № 295 of 27.04.2017. That is, if the inspector of the State Food and Consumer Service suspects that the employee is not registered, he will notify the State Labor, which will come with an inspection visit.
However, on May 14, 2019, there was information that the Sixth Administrative Court of Appeal overturned the decision of the Cabinet of Ministers № 295. Thus, the State Labor Service will not be able to conduct inspection visits based on information from the State Food and Consumer Service. So for now, we will monitor the situation and wait for the Supreme Court to put an end to this case.
New inspection rules
However, potential cooperation with the State Labor Service is not the only innovation of the State Food and Consumer Service.
First of all, changes took place in the part of scheduled inspections in the areas of safety and certain indicators of food quality and veterinary medicine. It should be noted that Derzhprozhspozhyvsluzhba conducts inspections in these areas in accordance with the Law of Ukraine "On state control over compliance with legislation on food, feed, animal by-products, animal health and welfare" № 2042, which entered into force on 04.04.2018. (hereinafter - the Law № 2042)
|Forms of inspections in accordance with the Law № 2042:
Risk criteria and frequency of scheduled inspections
In pursuance of the Law № 2042, the Cabinet of Ministers of Ukraine adopted a resolution "Some issues of implementation of planned measures of state control by the State Service for Food Safety and Consumer Protection" dated 31.10.2018 № 896. This resolution approved the criteria for assessing the risk of implementation of economic activity and enabled the State Food and Consumer Service to determine the frequency of scheduled inspections and audits. After the adoption of the above resolution, the head of the State Food and Consumer Service by his order № 965 of 27.11.2018 approved the annual plan of state control measures.
At present, the annual inspection plan identifies the enterprises to which the service representatives can come with an inspection (inspection or audit), as well as the number of possible inspections per year.
What determines the number of scheduled inspections in the field of safety and individual indicators of food quality and veterinary medicine?
The frequency of scheduled inspections, as in the case of other regulatory bodies, is now determined on the basis of a risk-based approach. Criteria for the degree of risk are the risks associated with animals, food, feed, etc.
|The criteria in the field of responsibility of the State Food and Consumer Services include, in particular, the type of capacity, the production of certain types of products, for example, raw milk or breeding of wild animals, as well as the presence of violations during previous inspections.
|All inspections in accordance with Law № 2042 are carried out without prior notice (notification) of the business entity - except for the audit, which is carried out subject to notification no later than 3 working days before the implementation of such a measure.
After analyzing all the criteria, the company is assigned a certain number of points. Based on the accrued amount of points, each object is attributed to a certain degree of risk, which affects the number of inspections at the enterprise.
The division of capacities into categories is carried out on the basis of information from state registers, information obtained as a result of previous measures of state control or other public information. If there is no information about capacity and preliminary inspections, the company is assigned a small degree of risk.
Thus, the procedure for appointing scheduled inspections (inspections and audits) in the areas of safety and certain indicators of food quality and veterinary medicine has undergone significant changes.
This is due to the fact that at the end of 2018, the Cabinet of Ministers approved new criteria for such inspections and allowed the State Food and Consumer Service to determine the number of inspections per year, while the service will be able to conduct inspections without notice.
What remained unchanged
The procedure for inspections of the service in the field of consumer protection, compliance with sanitary legislation, legislation in the field of plant quarantine will not change in 2019.
Inspections in these areas are regulated by the Law of Ukraine “On Basic Principles of State Supervision (Control) in the Sphere of Economic Activity” № 877 (hereinafter - the Law № 877).
The Service will conduct scheduled inspections in accordance with the inspection plan approved by the order of the Head of the State Food and Consumer Service № 964 dated November 26, 2018.
In this case, the service must notify the business entity about the scheduled inspection within 10 days, and the controlling body may not conduct more than one scheduled inspection per year.
Unscheduled inspections will be carried out on the grounds specified in the Law № 877. These are complaints of individuals (consumers), inspections on their own initiative, verification of compliance with instructions, etc. During scheduled and unscheduled inspections, controllers must act within the powers granted to them by Law № 877.
Are more innovations expected?
On March 13, 2019, the Cabinet of Ministers amended the regulations on the State Food and Consumer Service and further expanded its powers. In our opinion, these changes are of a formal nature and are related to the elimination of inconsistencies between various regulations.
|Thus, throughout the text of the regulation on the State Food and Consumer Service, changes have been made, which stipulate that the service implements a policy in the field of sanitary and epidemiological well-being of the population.
This is due to the shortcomings of the provision on the State Food and Consumer Service. After all, after the liquidation of the State Sanitary and Epidemiological Service, whose powers included the above powers, these powers passed to the State Food and Consumer Service (CMU Resolution of March 29, 2017 № 348). That is, formally, until March 2019, the State Food and Consumer Service had no authority in the field of sanitary and epidemiological well-being of the population. This gap has often been used by entrepreneurs in disputes with the service, but now the sphere of sanitary well-being of the population is clearly fixed in the powers of the service.
|The regulations have also been amended to provide for the service to take measures to stop violations of sanitary legislation.
Such measures in accordance with Article 42 of the Law of Ukraine "On Ensuring Sanitary and Epidemic Welfare of the Population" include, in particular, restrictions, temporary prohibition or termination of enterprises. It should be noted that such measures were carried out by the State Food and Consumer Service before the amendments to the regulations, and therefore, these changes are formal.
Andriy Gevko, partner, lawyer
The article was published in the Journal of the Chief Engineer №6 (30) in June 2019.
Information about the magazine can be found on the website: