Made | 18 November 2004 | ||
Laid before Parliament | 25 November 2004 | ||
Coming into force | 20th December 2004 |
(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.
Subject to regulations 6, 10 and 11, 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).
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 6 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) 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 the description referred to in sub-paragraph (b) of that paragraph, 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 of the sample 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 -
(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 food of the description referred to in sub-paragraph (c) of that paragraph, 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 -
(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 the description referred to in sub-paragraph (d) of that paragraph, 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; 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 the description referred to in sub-paragraph (e) of that paragraph, 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.
(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 the description referred to in sub-paragraph (f) of that paragraph, 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; and
(d) the reporting of the results of the analysis of that sample -
(7) 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 the description referred to in sub-paragraph (g) of that paragraph, 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 and that section of paragraph 4.6 of Annex II to Directive 2004/16/EC headed "Internal Quality control"; and
(d) 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 that the food in respect of which the offence is alleged to have been committed was intended for export to a country other than a member State which has legislation analogous to these Regulations, and that the food complies with that legislation.
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(a)(i) or (b)(i) of the Contaminants in Food (England) Regulations 2004.
(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(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(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", "Directive 98/53/EC", "Directive 2001/22/EC", "Directive 2002/26/EC", "Directive 2002/69/EC", "Directive 2003/78/EC" and "Directive 2004/16/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-export 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(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 of the food serve on that person a notice requiring -
(b) on or after 1st January 2005 -
(2) 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 should be upheld or set aside.
(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 (4) shall be by way of complaint for an order, and the Magistrates' Courts Act 1980[36] shall apply to the proceedings.
(6) If the court allows an appeal brought under paragraph (4) 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 or to both.
(9) This Regulation is subject to regulation 9.
Secondary treatment of food imported into England that does not comply with these Regulations
9.
- (1) In relation to any food which -
the authorised officer may, after appropriate consultation with a person appearing to him to be the importer of the food, serve on that person a notice requiring him to -
(2) 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 determine whether or not the notice should be upheld or set aside.
(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' Court Act 1980(a) 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 fails to comply with any of the requirements specified in a notice served under paragraph (1) shall be guilty of an offence and liable on summary execution to a fine not exceeding level 5 on the standard scale or to imprisonment for a term not exceeding three months or to both.
Transitional provisions
10.
Regulation 3(a)(i) and (b)(i) shall not apply in relation to any food -
11.
Regulation 3(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
Consequential amendments
12.
In Schedule 1 to the Food Safety (Sampling and Qualifications) Regulations 1990[37] in so far as they apply in relation to England (provisions to which those Regulations do not apply) for the entry relating to the Contaminants in Food (England) Regulations 2003 there shall be substituted the following entry -
"The Contaminants in Food (England) Regulations 2004 (to the extent that a sample falls to be prepared and analysed in accordance with regulation 5 of those Regulations) | S.I. 2004/3062". |
Revocations
13.
The Tin in Food Regulations 1992[38] insofar as they apply in relation to England and the Contaminants in Food (England) Regulations 2003[39] shall be revoked.
Signed by authority of the Secretary of State for Health
Melanie Johnson
Parliamentary Under Secretary of State, Department of Health
18 November 2004
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 doing so 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) subject to regulation 9, provide for the re-export to non-member States or in certain cases the destruction of imported food that contravenes certain requirements of regulation 3 (regulation 8);
(g) establish a process by which food that would otherwise have to be re-exported or destroyed under regulation 8 can nevertheless be placed on the market (regulation 9);
(h) include transitional provisions (regulations 10 and 11); and
(i) make consequential amendments to the Food Safety (Sampling and Qualifications) Regulations 1990 in so far as they apply in relation to England (regulation 12).
3.
These Regulations also revoke the Tin in Food Regulations 1992 in so far as they apply in relation to England (regulation 13).
4.
A regulatory impact assessment has been prepared for these Regulations and placed in the Library of each of the Houses 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 Safety 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(1) was amended by paragraph 12(a), section 17(2) 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. That Regulation was last amended by Regulation (EC) No. 1642/2003 of the European Parliament and of the Council (OJ No. L245, 29.9.2003, p.4).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 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. L19, 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. L203, 12.8.2003, p.1.back
[14] OJ No. L326, 13.12.2003, p.12.back
[15] OJ No. L42, 13.2.2004, p.3back
[16] OJ No. L74, 12.3.2004, p.11.back
[17] OJ No. L106, 15.4.2004, p. 6.back
[18] OJ No. L372, 31.12.1985, p.50.back
[19] OJ No. L290,24.11.1993, p.14.back
[20] OJ No. L201, 17.7.1998, p.93, as adopted by EEA Joint Committee Decision No. 93/1999 (OJ No. L296, 23.11.2000, p.58).back
[21] OJ No. L75, 16.3.2002, p.44, as adopted by EEA Joint Committee Decision No. 161/2002.back
[22] OJ No. L332, 19.12.2003, p.38.back
[23] OJ No. L113, 20.4.2004, p.14.back
[24] OJ No. L77, 16.3.2001, p.14.back
[25] OJ No. L325, 8.12.2001, p.34.back
[26] OJ No. L75, 16.3.2002, p.38.back
[27] OJ No. L113, 20.4.2004, p.14.back
[28] OJ No. L209, 6.8.2002, p.5.back
[29] OJ No. L252, 20.9.2002, p.40.back
[30] OJ No. L113, 20.4.2004, p.17.back
[31] OJ No. L203, 12.8.2003, p.40.back
[32] OJ No. L42, 13.2.2004, p.16.back
[34] The requirement is that the minimum number of units required for a laboratory sample in such circumstances is 10.back
[35] OJ No. L187, 16.7.2002, p.30.back
[37] S.I. 1990/2463; relevant amending instruments are S.I. 1999/1603, S.I. 2002/890 and S.I. 2003/1478.back