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SCOTTISH STATUTORY INSTRUMENTS

2003 No. 291
FOOD
The Cocoa and Chocolate Products (Scotland) Regulations 2003

	Made	5th June 2003
	Laid before the Scottish Parliament	6th June 2003
	Coming into force	3rd August 2003

The Scottish Ministers, in exercise of the powers conferred by sections 6(4), 16(1)(e), 17(1), 26(1) and (3) and 48(1) of the Food Safety Act 1990[1] and of all other powers enabling them in that behalf, having had regard in accordance with section 48(4A)[2] of that Act to relevant advice given by the Food Standards Agency, and after consultation in accordance with section 48(4) and (4B)[3] of that Act, hereby make the following Regulations:

Citation, commencement and extent
     1. These Regulations may be cited as the Cocoa and Chocolate Products (Scotland) Regulations 2003 and shall come into force on 3rd August 2003.

    (2) These Regulations shall extend to Scotland only.

Interpretation
     2. In these Regulations-

"the Act" means the Food Safety Act 1990;

"catering establishment" means a restaurant, canteen, club, public house, school, hospital or similar establishment (including a vehicle or a fixed or mobile stall) where, in the course of a business, food is prepared for delivery to the ultimate consumer and is ready for consumption without further preparation;

"designated product" means any cocoa or chocolate product specified in column 2 of Schedule 1, as read with any Note to that Schedule and any provision of regulation 3 and Schedule 2 relating to that product; and "designated cocoa product" and "designated chocolate product" mean any such product which is respectively a cocoa product or a chocolate product;

"Directive 2000/36/EC" means Council Directive 2000/36/EC relating to cocoa and chocolate products intended for human consumption[

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"EEA State" means a State which is a Contracting Party to the EEA Agreement;

"other edible substances" does not include vegetable fats referred to in regulation 3 or the filling of any product specified in column 2 of item 7 or of item 10(a) of Schedule 1;

"preparation" includes manufacture and any form of processing or treatment, and "prepared" shall be construed accordingly;

"reserved description", as respects any designated product, means any description specified in relation to that product in column 1 of Schedule 1;

"sell" includes offer or expose for sale or have in possession for sale, and "sell" and "sale" shall be construed accordingly;

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"ultimate consumer" means any person who buys otherwise than-

Vegetable fats in chocolate products
     3. - (1) Subject to paragraph (2) below, the vegetable fats, other than cocoa butter, specified in Schedule 2 may be added to those designated chocolate products specified in column 2 of items 3, 4, 5, 6, 8 and 9 of Schedule 1.

    (2) An addition in accordance with paragraph (1) above may not exceed 5 per cent of the finished product, after deduction of the total weight of any other edible substances used in accordance with Note 1 to Schedule 1, without reducing the minimum content of cocoa butter or total dry cocoa solids.

Scope of Regulations
     4. These Regulations apply to designated products, which are intended for human consumption and ready for delivery to the ultimate consumer or to a catering establishment.

Reserved descriptions
     5. No person shall sell any food with a label, whether or not attached to or printed on the wrapper or container, which bears, comprises or includes any reserved description or any derivative thereof or any word or description substantially similar thereto unless-

(a) such food is the designated product to which the reserved description relates;

(b) such description, derivative or word is used in such a context as to indicate explicitly or by clear implication that the substance to which it relates is only an ingredient of that food; or

(c) such description, derivative or word is used in such a context as to indicate explicitly or by clear implication that such food is not and does not contain a designated product.

Labelling and description of designated products
6. - (1) Without prejudice to the generality of Part II of the 1996 Regulations, no person shall sell any designated product unless it is marked or labelled with the following particulars:-

(a) subject to paragraphs (2)(a) and (3), a reserved description of the product;

(b) subject to regulation 7(2), in the case of a designated chocolate product which, pursuant to regulation 3, contains vegetable fats other than cocoa butter, the conspicuous and clearly legible statement "contains vegetable fats in addition to cocoa butter";

(c) where the words "milk chocolate" are used as the reserved description or a qualification of the reserved description of a designated chocolate product, an accompanying indication of the dry milk solids content in the form "milk solids: … % minimum": Provided that-

(d) subject to paragraph (4) below, in the case of a designated product specified in column 2 of item 2(c), 2(d), 2(e), 3, 4, 5, 8 or 9 of Schedule 1, an indication of the total dry cocoa solids content in the form "cocoa solids… % minimum";

(e) in the case of a designated cocoa product specified in column 2 of item 2(b) or 2(e), an indication of the cocoa butter content.

(2) Where designated chocolate products specified in column 2 of items 3, 4, 5 6, 7 and 10 of Schedule 1 are sold in an assortment-

(a) the reserved description may be replaced by "assorted chocolates" or "assorted filled chocolates" or a similar name; and

(b) the list of ingredients with which food is required by the 1996 Regulations to be marked or labelled may be a single list of ingredients for all the products in the assortment.

(3) The reserved descriptions "chocolate", "milk chocolate" and "couverture chocolate" may be supplemented by information or descriptions relating to quality criteria:

Provided that the product contains-

(a) in the case of the reserved description "chocolate", not less than 43 per cent total dry cocoa solids, including not less than 26 per cent cocoa butter;

(b) in the case of the reserved description "milk chocolate", not less than 30 per cent total dry cocoa solids and not less than 18 per cent dry milk solids obtained by partly or wholly dehydrating whole milk, semi-skimmed or skimmed milk, cream, or from partly or wholly dehydrated cream, butter or milk fat, including not less than 4.5 per cent milk fat;

(c) in the case of the reserved description "couverture chocolate", not less than 16 per cent dry non-fat cocoa solids.

    (4) The total dry cocoa solids content with which a designated product is required by paragraph (1)(d) above to be marked or labelled shall be calculated after deduction of the weight of other edible substances provided for in Note 1 to Schedule 1 but not the weight of any ingredient specified in column 2 of Schedule 1 as an ingredient of that product or of any vegetable fat added in accordance with regulation 3.

Manner of marking or labelling
     7.

    (1) Regulations 35, 36(1) and (5) and 38 of the 1996 Regulations (which relate to the manner of marking or labelling of food) shall apply to the particulars with which a designated product is required to be marked or labelled by paragraphs (1) to (3) of regulation 6 of these Regulations as if they were particulars with which food is required to be marked or labelled by the 1996 Regulations.

    (2) The information with which a designated chocolate product is required by regulation 6(1)(b) to be marked or labelled shall be-

(a) in the same field of vision as the list of ingredients with which the product is required by the 1996 Regulations to be marked or labelled;

(b) clearly separated from that list;

(c) in bold lettering of at least the same size as that list; and

(d) located near the reserved description, which may also appear elsewhere on the marking or labelling.

Penalties and enforcement
     8. - (1) Any person who contravenes or fails to comply with any of the provisions of regulation 5, 6 or 7 of these Regulations shall be guilty of an offence.

    (2) A person found guilty of an offence under paragraph (1) shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.

    (3) Each food authority shall enforce and execute these Regulations in its area.

Defence in relation to exports
     9. In any proceedings for an offence under these Regulations it shall be a defence for the person charged to prove-

(a) that the food in respect of which the offence is alleged to have been committed was intended for export to a country (other than an EEA State) which has legislation analogous to these Regulations and that the food complies with that legislation; and

(b) in the case of export to an EEA State, that the legislation complies with the provisions of Directive 2000/36/EC.

Transitional provision
10. In any proceedings for an offence under these Regulations it shall be a defence for the person charged to prove that-

(a) the food concerned was marked or labelled before 3rd August 2003; and

(b) the matters constituting the alleged offence would not have constituted an offence under the Cocoa and Chocolate Products (Scotland) Regulations 1976[

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Application of various provisions of the Food Safety Act 1990
11. The following provisions of the Act shall apply for the purposes of these Regulations with the modification that any reference in those provisions to the Act or Part thereof shall be construed for the purposes of these Regulations as a reference to these Regulations:-

(a) section 2 (extended meaning of sale etc.);

(b) section 3 (presumptions that food is intended for human consumption);

(c) section 20 (offences due to fault of another person);

(d) section 21 (defence of due diligence) as it applies for the purposes of section 8, 14 or 15 of the Act;

(e) section 22 (defence of publication in the course of business);

(f) section 30(8) (which relates to documentary evidence);

(g) section 33 (obstruction of officers etc.);

(h) section 35(1) to (3) (punishment of offences) in so far as it relates to offences under section 33(1) or (2) as applied by sub-paragraph (g) above;

(i) section 36 (offences by bodies corporate);

(j) section 36A[

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Amendments and revocations
12. - (1) The following entries relating to the Cocoa and Chocolate Products (Scotland) Regulations 1976 shall be omitted:-

(a) in the Food and Drugs (Scotland) Act 1956 (Transfer of Enforcement Functions) Regulations 1983[

(2) There shall be substituted for the following references to Directive 73/241/EEC[18], references to Directive 2000/36/EC[19]:-

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(3) The Cocoa and Chocolate Products (Scotland) Regulations 1976 and the Cocoa and Chocolate Products (Scotland) (Amendment) Regulations 1982[22] are hereby revoked.

TOM McCABE
Authorised to sign by the Scottish Ministers

St Andrew's House, Edinburgh
5th June 2003

SCHEDULE 1Regulations 2, 3 and 6

COCOA AND CHOCOLATE PRODUCTS AND THEIR RESERVED DESCRIPTIONS

Column 1	Column 2
Reserved Descriptions	Designated Products
1. Cocoa butter	The fat obtained from cocoa beans or parts of cocoa beans with the following characteristics:- - not more than 1.75 per cent free fatty acid content (expressed as oleic acid); and - for press cocoa butter, not more than 0.35 per cent unsaponifiable matter (determined using petroleum ether); or - for other cocoa butter, not more than 0.5 per cent unsaponifiable matter (determined using petroleum ether).
2. (a) Cocoa powder or Cocoa	The product obtained by converting into powder cocoa beans which have been cleaned, shelled and roasted, and which contains not less than 20 per cent cocoa butter, calculated according to the weight of the dry matter, and not more than 9 per cent water.
(b) Fat-reduced cocoa or Far-reduced cocoa powder	Cocoa powder containing less than 20 per cent cocoa butter, calculated according to the weight of the dry matter.
(c) Powered chocolate or Chocolate in powder	The product consisting of a mixture of cocoa powder and sugars, containing not less than 32 per cent cocoa powder.
(d) Drinking chocolate or Sweetened cocoa or Sweetened cocoa powder	The product consisting of a mixture of cocoa powder and sugars, containing not less than 25 per cent cocoa powder.
(e) Fat reduced drinking chocolate or Fat reduced sweetened cocoa or Fat reduced sweetened cocoa powder	The product consisting of a mixture of cocoa powder specified at item 2(b) and sugars, containing not less than 25 per cent of such cocoa powder.
3. (a) Chocolate	(a) The product obtained from cocoa products and sugars which, subject to item 3(b), contains not less than 35per cent total dry cocoa solids, including not less than 18 per cent cocoa butter and not less than 14 per cent of dry non-fat solids.
(b) If "Chocolate" is supplemented by-	(b)
(i) "vermicelli" or "flakes"	(i) The product presented in the form of granules or flakes containing not less than 32 per cent total dry cocoa solids, including not less than 12 per cent cocoa butter and not less than 14 per cent of dry non-fat cocoa solids.
(ii) "couverture"	(ii) The product containing not less than 35 per cent total dry cocoa solids, including not less than 31 per cent cocoa butter and not less than 2.5 per cent of dry non-fat cocoa solids.
(iii) "Gianduja" or one of the derivatives of "Gianduja"	(iii) The nut chocolate product obtained (1) from chocolate having a minimum total dry cocoa solids content of 32 per cent including a minimum dry non-fat cocoa solids content of 8 per cent, and (2) from finely ground hazelnuts in such quantities that 100 grams of the product contain not less than 20 grams and not more than 40 grams of hazelnuts; and to which may have been added- - milk or dry milk solids obtained by evaporation or both, in such proportion that the finished product does not contain more than 5 per cent dry milk solids; - almonds, hazelnuts and other nut varieties, either whole or broken, in such quantities that, together with the ground hazelnuts, they do not exceed 60 per cent of the total weight of the product.
4. (a) Milk chocolate	(a) The product obtained from cocoa products, sugars and milk or milk products which, subject to item 4(b), contains- - not less than 25 per cent total dry cocoa solids; - not less than 14 per cent dry milk solids obtained by partly or wholly dehydrating whole milk, semi skimmed or skimmed milk, cream or from partly or wholly dehydrated cream, butter or milk fat; - not less than 2.5 per cent dry non fat cocoa solids; - not less than 3.5 per cent milk fat; - not less than 25 per cent total fat (cocoa butter and milk fat).
(b) If "Milk chocolate" is supplemented by-	(b)
(i) "vermicelli" or "flakes"	(i) The product presented in the form of granules or flakes containing not less than 20 per cent total dry cocoa solids, not less than 12 per cent dry milk solids obtained by partly or wholly dehydrating whole milk, semi skimmed or skimmed milk, cream or from partly or wholly dehydrated cream, butter or milk fat and not less than 12 per cent total fat (cocoa butter and milk fat).
(ii) "couverture"	(ii) The product containing a minimum total fat (cocoa butter and milk fat) content of 31 per cent.
(iii) "Gianduja" or one of the derivatives of "Gianduja"	(iii) The nut milk chocolate product obtained (1) from milk chocolate having a minimum content of 10 per cent dry milk solids, obtained by partly or wholly dehydrating whole milk, semi skimmed or skimmed milk, cream, or from partly or wholly dehydrated cream, butter or milk fat and (2) from finely ground hazelnuts in such quantities that 100 grams of the produce contain not less than15 grams and not more than 40 grams of hazelnuts; and to which may have been added almonds, hazelnuts and other nut varieties, either whole or broken, in such quantities that, together with the ground hazelnuts, they did not exceed 60 per cent of the total weight of the product.
(c) If "Milk" is replaced by-	(c)
(i) "cream"	(i) The product containing a minimum milk fat content of 5.5 per cent.
(ii) "skimmed milk"	(ii) The product containing a milk fat content not greater than 1 per cent.
5. Family milk chocolate or Milk Chocolate	The product obtained from cocoa products, sugars and milk or milk products which contains- - not less than 20 per cent total dry cocoa solids; - not less than 20 per cent dry milk solids obtained by partly or wholly dehydrating whole milk, semi skimmed or skimmed milk, cream, or from partly or wholly dehydrated cream, butter or milk fat; - not less than 2.5 per cent dry non fat cocoa solids; - not less than 5 per cent milk fat; - not less than 25 per cent total fat (cocoa butter and milk fat).
6. White chocolate	The product obtained from cocoa butter, milk or milk products and sugars which contains not less than 20 per cent cocoa butter and not less than 14 per cent dry milk solids obtained by partly or wholly dehydrating whole milk, semi skimmed or skimmed milk, cream, or from partly or wholly dehydrated cream, butter or milk fat, of which not less than 3.5 per cent is milk fat.
7. Filled chocolate or Chocolate with filling or Chocolate with centre	The filled product, the outer part of which consists of a product specified in column 2 of item 3, 4, 5 or 6 of this Schedule and constitutes not less than 25 per cent of the total weight of the product, but does not include any filled product, the inside of which consists of bakery products, pastry, biscuit or edible ice.
8. Chocolate a la taza	The product obtained from cocoa products, sugars, and flour or starch from wheat, rice or maize, which contains not less than 35 per cent total dry cocoa solids, including not less than 18 per cent cocoa butter and not less than 14 per cent dry non fat cocoa solids, and not more than 8 per cent flour starch.
9. Chocolate familiar a la taza	The product obtained from cocoa products, sugars, and flour or starch from wheat, rice or maize, which contains not less than 30 per cent total dry cocoa solids, including not less than 18 per cent cocoa butter and not less than 12 per cent dry non fat cocoa solids, and not more than 18 per cent flour or starch.
10. A chocolate or a praline	The product in single mouthful size, consisting of:- (a) the product specified in column 2 of item 7 of this Schedule; or (b) a single chocolate or a combination or a mixture of chocolate within the meaning of any of the definitions specified in column 2 of items 3, 4, 5 and 6 of this Schedule and any other edible substance, provided that the chocolate constitutes not less than 25 per cent of the total weight of the product.

Notes
1. - (1) Subject to regulation 3 and paragraph (2) of this Note, other edible substances may also be added to the designated chocolate products specified in column 2 of 3, 4, 5, 6, 8 and 9 of this Schedule:

Provided that this paragraph does not authorise the addition-

    (2) Only those flavourings which do not mimic the taste of chocolate or of milk fat may be added to the designated products specified in column 2 of items 2, 3, 4, 5, 6, 8 and 9 of this Schedule.

     2. - (1) The minimum contents of the designated chocolate products specified in column 2 of items 3, 4, 5, 6, 8 and 9 of this Schedule shall be calculated after deduction of the weight of other edible substances provided for in Note 1 to this Schedule.

    (2) In the case of the designated chocolate products specified in column 2 of items 7 and 10 of this Schedule, the minimum contents shall be calculated after deducting the weight of other edible substances provided for in Note 1 to this Schedule, as well as the weight of the filling.

    (3) The chocolate contents of the designated chocolate products specified in column 2 of items 7 and 10 of this Schedule shall be calculated in relation to the total weight of the finished product, including its filling.

     3. In this Schedule, "sugars" includes sugars covered by Council Directive 2001/111/EC[23] and other sugars.

SCHEDULE 2Regulations 2 and 3

AUTHORISED VEGETABLE FATS

1. Subject to the following paragraphs of this Schedule, the vegetable fats referred to in regulation 3 are, singly or in blends, cocoa butter equivalents and shall comply with the following criteria:-

     2. In conformity with the criteria specified in paragraph 1 above, the following vegetable fats, obtained from the plants listed in the Table below, may be used:-

Usual name of vegetable fat Scientific name of the plants from which the fats listed can be obtained

     1. Illipe, Borneo tallow or Tengkawang

Shorea spp.

     2. Palm-oil

Elaeis guineensis

Elaeis olifera

     3. Sal

Shorea robusta

     4. Shea

Burtyrospermum parkii

     5. Kokum gurgi

Garcinia indica

     6. Mango kernel

Mangifera indica

     3. Coconut oil may be used in chocolate for the manufacture of ice cream and similar frozen products.

     4. In this Schedule-

"P" means palmitic acid;

"O" means oleic acid;

"St" means stearic acid.

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations, which extend to Scotland, implement Directive 2000/36/EC of the European Parliament and the Council relating to cocoa and chocolate products intended for human consumption[24]. They revoke and replace the Cocoa and Chocolate Products (Scotland) Regulations 1976, as amended.

The Regulations-

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A Regulatory Impact Assessment, which includes a compliance cost assessment of the effect that these Regulations would have on business costs, has been prepared and placed in the Scottish Parliament Information Centre. Copies may be obtained from the Food Standards Agency, 6th Floor, St Magnus House, 25 Guild Street, Aberdeen, AB11 6NJ.

Notes:

[1] 1990 c.16; section 6(4) was amended by the Deregulation and Contracting Out Act 1994 (c.40), Schedule 9, paragraph 6 and by the Food Standards Act 1999 (c.28) ("the 1999 Act"), Schedule 5, paragraph 10(3); sections 16(1) and 48(1) were amended by the 1999 Act, Schedule 5, paragraph 8; section 17(1) was amended by the 1999 Act, Schedule 5, paragraphs 8 and 12; section 26(3) was amended by the 1999 Act, Schedule 6; amendments made by Schedule 5 to the 1999 Act shall be taken as pre-commencement enactments for the purposes of the Scotland Act 1998 (c.46) by virtue of section 40(2) of the 1999 Act. The functions of the Secretary of State were transferred to the Scottish Ministers by virtue of section 53 of the Scotland Act 1998.back

[2] Section 48(4A) was inserted by paragraph 21 of Schedule 5 to the Food Standards Act 1999.back

[3] Section 48(4B) was inserted by paragraph 21 of Schedule 5 to the Food Standards Act 1999.back

[4] O.J. No. L 197, 3.8.00, p.19, as adopted by EEA Joint Committee Decision 152/2001 (O.J. No. L 65, 7.3.02, p.26).back

[5] O.J. No. L 1, 3.1.94, p.1.back

[6] O.J. No. L 1, 3.1.94, p.571.back

[7] S.I. 1996/1499; the relevant amending instrument is S.I. 1998/1398.back

[8] S.I. 1976/914, amended by S.I. 1982/108, 1983/270, 1985/1068, 1990/2625, 1991/1476, 1992/2596, 1995/3186 and 3267, 1996/1499 and 1999/1136.back

[9] Section 36A was inserted by paragraph 16 of Schedule 5 to the 1999 Act.back

[10] S.I. 1983/270, to which there are amendments not relevant to these Regulations.back

[11] S.I. 1985/1068, to which there are amendments not relevant to these Regulations.back

[12] S.I. 1990/2625, to which there are amendments not relevant to these Regulations.back