Made | 22nd May 2002 | ||
Laid before Parliament | 22nd May 2002 | ||
Coming into force | 18th June 2002 |
(2) Other expressions used in these Regulations and in the Commission Regulation have the same meaning as in the Commission Regulation.
Offences and penalties
3.
- (1) Subject to regulations 8 and 9, a person shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale if -
(b) on or after 1st July 2002, but before 1st January 2005 -
(c) on or after 1st January 2005 -
(d) he knowingly contravenes or fails to comply with the requirements of a notice given under section 9(2)(a) of the Act as applied for the purposes of these Regulations by regulation 7.
(2) For the purposes of this regulation -
Enforcement
4.
- (1) Subject to paragraph (2), it shall be the duty of each port health authority to execute and enforce these Regulations within its district.
(2) In relation to any place which is not situated in the district of a port health authority, these Regulations shall be executed and enforced by the food authority for the area in which that place is situated.
Sampling, analysis and modification of section 29 of the Act
5.
- (1) In its application to the taking of a sample of any food specified in sections 1 to 4 of Annex I to the Commission Regulation, section 29 of the Act shall be modified so as to limit the power to take samples under subsection (b) and (d) of that section to the taking of samples in accordance with the methods of taking samples described or referred to -
(2) The requirement referred to in sub-paragraph (a) of paragraph (1) is that, in the case of lettuce of the kind specified in point 1.3 or 1.4 of Section 1 of Annex I to the Commission Regulation, the minimum number of units required for each laboratory sample shall be ten.
(3) Where, pursuant to section 29(b) or (d) of the Act as modified by paragraph (1), an authorised officer has taken a sample of any food of a description to which sub-paragraph (b) of that paragraph applies, he shall ensure that -
(b) any analysis of the sample is carried out in accordance with methods of analysis which -
(c) any analysis is carried out by a laboratory which complies with Directive 93/99/EEC; and
(d) the reporting of the results of the analysis of that sample -
(4) Where, pursuant to section 29(b) or (d) of the Act as modified by paragraph (1), an authorised officer has taken a sample of food of a description to which sub-paragraph (c) of that paragraph applies, he shall ensure that -
(c) any analysis is carried out by a laboratory which complies with Directive 93/99/EEC; and
(d) the reporting of the results of the analysis of that sample -
(5) Where, pursuant to section 29(b) or (d) of the Act as modified by paragraph (1), an authorised officer has taken a sample of food of a description to which sub-paragraph (d) of that paragraph applies, he shall ensure that -
(c) any analysis of the sample is carried out by a laboratory which complies with Directive 93/99/EEC;
(d) any analysis of the sample is carried out in such a way as to comply with the first and second sub-paragraphs of paragraph 3.4 of Annex II to Directive 2001/22/EC as read in the case of the second sub-paragraph with the note thereto; and
(e) the reporting of the results of the analysis of that sample -
Defence in relation to exports
6.
In any proceedings for an offence consisting of a contravention of regulation 3 it shall be a defence for the accused to prove -
Application of various sections of the Act
7.
- (1) 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 as a reference to these Regulations -
(2) Subject to paragraphs (3) and (4), section 9 of the Act (inspection and seizure of suspected food) shall apply for the purposes of these Regulations as if it read as follows -
and subsections (2) to (7) below shall apply where, on such an inspection, it appears to the authorised officer that the placing on the market of any food (other than authorised spinach or authorised lettuce) contravenes regulation 3(1)(a)(i), (b)(i) or (c)(i) of the Contaminants in Food (England) Regulations 2002.
(2) The authorised officer may either -
(b) seize the food and remove it in order to have it dealt with by a justice of the peace;and any person who knowingly contravenes the requirements of a notice under paragraph (a) above shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.
(3) Where the authorised officer exercises the powers conferred by subsection (2)(a) above, he shall, as soon as is reasonably practicable and in any event within 21 days, determine whether or not he is satisfied that the food complies with the requirements of regulation 3(1)(a)(i), (b)(i) or (c)(i) of the above Regulations, as appropriate and -
(4) Where an authorised officer exercises the powers conferred by subsection (2)(b) or (3)(b) above, he shall inform the person in charge of the food of his intention to have it dealt with by a justice of the peace and -
(5) If it appears to a justice of the peace, on the basis of such evidence as he considers appropriate in the circumstances, that any food falling to be dealt with by him under this section fails to comply with the requirements of regulation 3(1)(a)(i), (b)(i) or (c)(i) of the above Regulations, he shall condemn the food and order -
(6) If a notice under subsection (2)(a) above is withdrawn, or the justice of the peace by whom any food falls to be dealt with under this section refuses to condemn it, the food authority or, as the case may be, port health authority, shall compensate the owner of the food for any depreciation in its value resulting from the action taken by the authorised officer.
(7) Any disputed question as to the right to or the amount of any compensation payable under subsection (6) above shall be determined by arbitration.".
(3) The expressions "authorised officer", "food authority", "port health authority", "human consumption", "placing on the market", "authorised spinach", "authorised lettuce", "Directive 98/53/EC", "Directive 2001/22/EC" and "Directive 2002/26/EC", which are used in section 9 of the Act so far as it applies for the purposes of these Regulations by virtue of paragraph (2), shall, for those purposes, bear the meanings that those expressions respectively bear in these Regulations.
(4) Section 2 of the Act (extended meaning of "sale" etc.) shall apply in relation to section 9 of the Act so far as it applies for the purposes of these Regulations by virtue of paragraph (2).
Transitional provisions
8.
Regulation 3(1)(a)(i), (b)(i) and (c)(i) shall not apply in relation to any food lawfully placed on the market in the European Community before 5th April 2002 which is covered by, but fails to meet the requirements of, Article 1.1, 2.1 or 2.2 of the Commission Regulation, as read with Article 1.2 of that Regulation, to the extent that the failure consists in the food being placed on the market containing a contaminant specified in section 3 or 4 of Annex I to that Regulation at a level higher than that specified in the second column of the section concerned.
9.
Regulation 3(1)(a)(ii), (b)(ii) and (c)(ii) shall not apply in relation to any contravention of Article 2.3 of the Commission Regulation, to the extent that the contravention consists in the use as a food ingredient, for the production of a compound foodstuff, of food lawfully placed on the market in the European Community before 5th April 2002 and containing a contaminant specified in section 3 or 4 of Annex I to that Regulation at a level higher than that specified in the second column of the section concerned.
Consequential amendments
10.
In Schedule 1 to the Food Safety (Sampling and Qualifications) Regulations 1990[20] so far as they extend to England (provisions to which those Regulations do not apply) for each entry relating to the Contaminants in Food Regulations 1997 there shall be substituted the following entry -
"The Contaminants in Food (England) Regulations 2002 (to the extent that a sample falls to be prepared and analysed in accordance with regulation 5 thereof) | S.I. 2002/ ". |
Revocations
11.
The instruments specified in column 1 of the Schedule shall, in so far as they extend to England, be revoked to the extent specified in column 2 of that Schedule.
Signed by authority of the Secretary of State for Health
Yvette Cooper
Parliamentary Under Secretary of State, Department of Health
22nd May 2002
Column 1 | Column 2 | |
Instruments revoked | Extent of Revocation | |
The Lead in Food Regulations 1979 | (SI 1979/1254) | The whole Regulations |
The Food (Revision of Penalties) Regulations 1982 | (SI 1982/1727) | The reference to the Lead in Food Regulations 1979 in column 2 of Schedule 1 and the corresponding entries in columns 1, 3 and 4 of that Schedule |
The Food (Revision of Penalties) Regulations 1985 | (SI 1985/67) | The reference to the Lead in Food Regulations 1979 in column 2 of Part I of the Schedule and the corresponding entries in columns 1 and 3 of that Part |
The Food Safety Act 1990 (Consequential Modifications) (England and Wales) Order 1990 | (SI 1990/2486) |
Article 19(8); The reference to the Lead in Food Regulations 1979 in column 2 of Part I of Schedule 1 and the corresponding entries in columns 1 and 3 of that Part; The reference to the Lead in Food Regulations 1979 in column 2 of Schedule 2 and the corresponding entry in column 1 of that Schedule; The reference to the Lead in Food Regulations 1979 in column 2 of Part I of Schedule 3 and the corresponding entry in column 1 of that Part; The reference to the Lead in Food Regulations 1979 in column 2 of Schedule 5 and the corresponding entries in columns 1 and 3 of that Schedule; The reference to the Lead in Food Regulations 1979 in column 2 of Schedule 7 and the corresponding entries in columns 1 and 3 of that Schedule |
The Food Safety (Exports) Regulations 1991 | (SI 1991/1476) | The reference to the Lead in Food Regulations 1979 in column 2 of Part I of Schedule 1 and the corresponding entries in columns 1 and 3 of that Part |
The Flavourings in Food Regulations 1992 | (SI 1992/1971) | Regulation 11 in so far as it amends the Lead in Food Regulations 1979 |
The Colours in Food Regulations 1995 | (SI 1995/3124) | The reference to the Lead in Food Regulations 1979 in column 1 of Schedule 6 and the corresponding entries in columns 2 and 3 of that Schedule |
The Food (Miscellaneous Revocations and Amendments) Regulations 1995 | (SI 1995/3267) | The reference to the Lead in Food Regulations 1979 in column 1 of the Schedule and the corresponding entries in columns 2 and 3 thereof |
The Contaminants in Food Regulations 1997 | (SI 1997/1499) | The whole Regulations |
2.
These Regulations -
(b) specify the enforcement authorities (regulation 4);
(c) prescribe sampling and analysis requirements in relation to foods subject to the Commission Regulation, and in so doing modify section 29 of the Food Safety Act 1990 so far as it applies to the taking of samples of the foods concerned (regulation 5);
(d) provide a defence in relation to exports in implementation of Articles 2 and 3 of Council Directive 89/397/EEC (OJ No. L186, 30.6.89, p.23) on the official control of foodstuffs, as read with the ninth recital to that Directive (regulation 6);
(e) provide for the application of specified provisions of the Food Safety Act 1990 for the purposes thereof (regulation 7);
(f) make consequential amendments to the Food Safety (Sampling and Qualifications) Regulations 1990 (regulation 10); and
(g) revoke specified Instruments (including, as already indicated, the Contaminants in Food Regulations 1997) (regulation 11 and the Schedule).
3.
A regulatory impact assessment has been prepared and placed in the Library of each House of Parliament, together with a transposition note setting out how the main elements of the Commission Directives referred to in paragraph 1 above are transposed for the purposes of these Regulations. Copies may be obtained from the Chemical Contaminants and Animal Feed Division of the Food Standards Agency, Aviation House, 125 Kingsway, London WC2B 6NH.
[2] Functions formerly exercisable by "the Ministers" (being, in relation to England and Wales and acting jointly, the Minister of Agriculture, Fisheries and Food and the Secretaries of State respectively concerned with health in England and food and health in Wales and, in relation to Scotland, the Secretary of State) are now exercisable in relation to England by the Secretary of State pursuant to paragraph 8 of Schedule 5 to the Food Standards Act 1999 (1999 c.28). Those functions, so far as exercisable in relation to Wales, were transferred to the National Assembly for Wales by S.I. 1999/672 as read with section 40(3) of the 1999 Act. Those functions, so far as exercisable in relation to Scotland, were transferred to the Scottish Ministers by section 53 of the Scotland Act 1998 (1998 c.46) as read with section 40(2) of the 1999 Act. Section 17(2) was amended by paragraph 12(b), and section 48 by paragraph 21, of Schedule 5 to the 1999 Act. Regulation 13(4) of S.I. 2000/656 expressly authorises the Secretary of State to revoke and re-make existing Regulations made by the Minister of Agriculture, Fisheries and Food (whether with others or not) under the Food Safety Act 1990.back
[3] OJ No. L31, 1.2.2002, p.1.back
[4] OJ No. L77, 16.3.2001, p.1.back
[5] OJ No. L37, 7.2.2002, p.4.back
[6] OJ No. L41, 13.2.2002, p.12.back
[7] OJ No. L75, 16.3.2002, p.18.back
[8] OJ No. L80, 23.3.2002, p.42.back
[9] OJ No. L86, 3.4.2002, p.5.back
[10] OJ No. L372, 31.12.85, p.50.back
[11] OJ No. L290, 24.11.93, p.14.back
[12] OJ No. L201, 17.7.1998, p.93.back
[13] OJ No. L75, 16.3.2002, p.44.back
[14] OJ No. L77, 16.3.2001, p.14.back
[15] OJ No. L325, 8.12.2001, p.34.back
[16] OJ No. L75, 16.3.2002, p.38.back
[18] OJ No. L321, 6.12.2001, p.1.back
[19] OJ No. L207, 15.8.1979, p.26.back
[20] S.I. 1990/2463. The relevant amending instrument is S.I. 1999/1603.back