Regulations – The Crooked Seek Loopholes
Show me a regulation without a loophole and I will show you a regulation out of this world. No human or human committee can think of everything. It should not be a surprise, therefore, that regulations and loopholes are inseparable. That does not obligate us to look for loopholes in regulations. Most regulations are intended to protect the public. Unfortunately, other interfering factors tend to disrupt this noble intention but regulations are essentially good for countries, states, provinces, municipalities, organizations, and societies in general.
The best regulations command general agreement. Regulations also work best if they are easily understood and applied. The regulations that best eliminate misunderstanding or confusion are those where each stated rule within the regulation also has a stated or explained rationale. While the thought may be that those providing or enacting the regulations are responsible for ensuring that the regulations are as good as described, everyone subject to the regulations has the obligation to understand and agree with them.
Confusion and Conflict
As a food safety auditor, I draw from regulation-related encounters and conversations that I have had over the years. I have observed that the most common attitude towards regulation is adversarial and crooked operators seek the loopholes that may exist as their way out of complying. Others outright choose to ignore their obligations with the hope that they may not be caught.
Some operators, particularly small businesses are often skeptical about the purpose of regulations. I am frequently told that “regulations are enforced as part of the collusion between government and big businesses to drive small operators off the scene so that the big businesses can monopolize the market.”
The situation is not helped when operators perceive mixed messages among the different regulations. For example, during one of the audits I conducted under a provincial regulatory program the business owner explained a situation where he felt he “could not win”. This particular audit requirement involved the proper sealing of openings around conduits on the ceiling above food handling areas. This requirement was not met in this instance. There were gaps deliberately left around the metal housing of the light units to prevent the ceiling construction material from coming in direct contact and creating a possible fire hazard. This, the owner said, was to meet fire prevention regulations. He saw a conflict between the fire prevention regulations and the food safety requirement (regulation) of tightly sealing all openings.
In another instance, the operator saw a conflict of regulations where one food safety requirement stipulated the need for a smooth and impervious floor, and another requirement expected the use of foot sanitizing provisions (typically liquid sanitizing systems). In the facility owner's mind, this combination created the possibility of a slippery floor that undermined employee health and safety requirements. Without making any effort to find the types of flooring and sanitizing systems that met both requirements, the operator simply concluded that the requirements (regulations) were conflicting on purpose – “to drive me out of business”.
Improper understanding of regulations leads to other forms of compliance conflict. During another audit assignment, I observed that polycarbonate covers were installed over the light units to supposedly satisfy both the proper shielding of the light bulbs from accidental breakage and to provide sufficient light intensity. The polycarbonate covers were glass-like in clarity as opposed to the usual slight translucency of other types of non-shattering plastic covers. I happened to find, during the facility inspection, a piece of the snap-on clips from one of the polycarbonate covers on top of a closed case of product. Subsequent inquiries about the likely source led to the explanation that the clips tended to break off when the covers were put back after cleaning or bulb replacement activities.
These examples of conflict between regulations or requirements may appear to provide a justification for the adversarial attitude towards regulations. Instead of conflict, however, I see confusion about the rationale behind regulations. Where the regulated parties have a good understanding of the rationale, and the conviction that regulations are in fact well-intended, the adversarial attitude is replaced by a genuine desire to comply. A forced willingness to comply and gain the enforcer’s approval is replaced by a willingness to comply in order to prevent what the regulations are intended to prevent.
Felix Amiri is the current Food Sector Chair of GCSE-Food & Health Protection: https://www.afisservices.com/gcse-fhp/gcseindex1.html