Made | 5th June 2003 | ||
Laid before Parliament | 6th June 2003 | ||
Coming into force | 30th June 2003 |
(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 9 and 10, 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 January 2005 -
(c) 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).
(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.
Modification of section 29 of the Food Safety Act 1990 (procurement of samples) and analysis of samples
5.
- (1) In its application to the taking of a sample of any food specified in sections 1 to 5 of Annex I to the Commission Regulation, section 29 of the Act shall be modified so as to require the power to take samples under subsection (b) and (d) of that section to be exercised in accordance with the methods of taking samples described or referred to -
(2) The requirement 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, and he has submitted that sample to be analysed pursuant to section 30(1)(a) of the Act the person who analyses the sample 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, and he has submitted that sample to be analysed pursuant to section 30(1)(a) of the Act the person who analyses the sample 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, and he has submitted that sample to be analysed pursuant to section 30(1)(a) of the Act the person who analyses the sample 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 to that sub-paragraph; and
(e) the reporting of the results of the analysis of that sample -
(6) 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 (e) of that paragraph applies, and he has submitted that sample to be analysed pursuant to section 30(1)(a) of the Act the person who analyses the sample shall ensure that -
(c) the reporting of the results of the analysis of that sample is in accordance with paragraph 8 of Annex II to Directive 2002/69/EC.
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 that -
Application of various sections of the Food Safety Act 1990
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 paragraph (3), 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 contravenes regulation 3(1)(a)(i) or (b)(i) of the Contaminants in Food (England) Regulations 2003.
(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.
(3) Where the authorised officer exercises the power 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) or (b)(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) or (b)(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.
(8) Any person who knowingly contravenes the requirements of a notice under paragraph (a) of subsection (2) above shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.".
(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", "Directive 2002/26/EC" and "Directive 2002/69/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.
Re-dispatch or destruction of food imported into England that does not comply with these Regulations
8.
- (1) If it appears to an authorised officer of a port health authority or as the case may be food authority that any food contravenes regulation 3(1)(a)(i) or (b)(i) and has been imported into England, he may, after appropriate consultation with a person appearing to him to be the importer, serve on that person a notice requiring -
(2) In any case where such an appeal as is mentioned in paragraph (3) may be brought the notice served under paragraph (1) shall state -
(3) Any person who is aggrieved by the decision of an authorised officer to serve a notice under paragraph (1) may appeal to a magistrates' court, which shall be determine whether or not the notice was lawfully served.
(4) The period within which such an appeal as is mentioned in paragraph (3) may be brought shall be 6 days from the date on which the notice was served exclusive of Saturdays, Sundays and Public Holidays and the making of the complaint shall be deemed for the purpose of this paragraph to be the bringing of the appeal.
(5) The procedure on an appeal to a magistrates' court under paragraph (3) shall be by way of complaint for an order, and the Magistrates' Courts Act 1980[26] shall apply to the proceedings.
(6) If the court allows an appeal brought under paragraph (3) the authority concerned shall compensate the owner of the food concerned 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 paragraph (6) shall be determined by arbitration.
(8) Any person who breaches the terms of a notice served under paragraph (1) shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale or to imprisonment for a term not exceeding three months.
Transitional provisions
9.
Regulation 3(1)(a)(i) and (b)(i) shall not apply in relation to any food lawfully placed on the market in the European Economic Area 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.
10.
Regulation 3(1)(a)(ii) and (b)(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 Economic Area 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
11.
In Schedule 1 to the Food Safety (Sampling and Qualifications) Regulations 1990[27] so far as they extend to England (provisions to which those Regulations do not apply) for the entry relating to the Contaminants in Food (England) Regulations 2002 there shall be substituted the following entry -
"The Contaminants in Food (England) Regulations 2003 (to the extent that a sample falls to be prepared and analysed in accordance with regulation 5 thereof) | S.I. 2003/1478". |
Revocation of the Contaminants in Food (England) Regulations 2002 and the Contaminants in Food (England) (Amendment) Regulations 2002
12.
The Contaminants in Food (England) Regulations 2002[28] and the Contaminants in Food (England) (Amendment) Regulations 2002[29] shall be revoked.
Signed by authority of the Secretary of State for Health
Hazel Blears
Parliamentary Under Secretary of State, Department of Health
5th June 2003
2.
These Regulations -
(b) specify the enforcement authorities (regulation 4);
(c) prescribe requirements in relation to the analysis of samples of foods subject to the Commission Regulation, and in so doing modify section 29 of the Food Safety Act 1990 in its application 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 on the official control of foodstuffs, as read with the ninth recital to that Directive (OJ No. L186, 30.6.89, p.23) (regulation 6);
(e) provide for the application of specified provisions of the Food Safety Act 1990 for the purposes thereof (regulation 7);
(f) provide for the re-dispatch out of the European Economic Area of imported food that fails to comply with certain requirements of regulation 3 but does not pose a serious risk to human health and the destruction of such food where it does pose such a risk (regulation 8);
(g) include transitional provisions (regulations 9 and 10);
(h) make consequential amendments to the Food Safety (Sampling and Qualifications) Regulations 1990 (regulation 11); and
(i) revoke the Contaminants in Food (England) Regulations 2002 and the Contaminants in Food (England) (Amendment) Regulations 2002 (regulation 12).
3.
A regulatory impact assessment has been prepared for these Regulations 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 into domestic law by 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.back
[3] OJ No. L31, 1.2.2002, p.1.back
[4] OJ No. L77, 16.3.2001, p.1, as adopted by EEA Joint Committee Decision No. 81/2002 (OJ No. L266, 3.10.2002, p.30 and EEA supplement No. 49, 3.10.2002).back
[5] OJ No. L313, 30.11.2001, p.60, as adopted by EEA Joint Committee Decision No. 81/2002.back
[6] OJ No L321, 6.12.2001, p.1, as adopted by EEA Joint Committee Decision No. 81/2002.back
[7] OJ No L37, 7.2.2002, p.4, as adopted by EEA Joint Committee Decision No. 139/2002 (OJ No. L 19, 23.1.2003, p.3 and EEA supplement No. 5, 23.1.2003).back
[8] OJ No. L41, 13.2.2002, p.12, as adopted by EEA Joint Committee Decision No. 100/2002 (OJ No. L298, 31.10.2002, p.13 and EEA supplement No 54, 31.10.2002, p.11).back
[9] OJ No. L75, 16.3.2002, p.18, as adopted by EEA Joint Committee Decision No. 161/2002 (OJ No. L38, 13.2.2003, p.16 and EEA supplement No. 9, 13.2.2003, p.13).back
[10] OJ No. L80, 23.3.2002, p.42.back
[11] OJ No. L86, 3.4.2002, p.5, as adopted by EEA Joint Committee Decision No. 161/2002.back
[12] OJ No. L155, 14.6.2002, p.63, as adopted by EEA Joint Committee Decision No. 161/2002.back
[13] OJ No. L372, 31.12.85, p.50.back
[14] OJ No. L290, 24.11.93, p.14.back
[15] OJ No. L201, 17.7.1998, p.93.back
[16] OJ No. L75, 16.3.2002, p.44.back
[17] OJ No. L77, 16.3.2001, p.14.back
[18] OJ No. L325, 8.12.2001, p.34.back
[19] OJ No. L75, 16.3.2002, p.38.back
[20] OJ No L209, 6.8.2002, p.5.back
[21] OJ No. L252, 20.9.2002, p.40.back
[22] OJ No. L1, 3.1.94, p.3.back
[23] OJ No. L1, 3.1.94, p.37.back
[25] OJ No. L187, 16.7.2002, p.30.back
[27] S.I. 1990/2463. The relevant amending instruments are S.I. 1999/1603 and S.I. 2002/890.back
© Crown copyright 2003 | Prepared 11 June 2003 |