The Smoke Flavourings (England) Regulations 2005

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Interpretation
     2.  - (1) In these Regulations  - 

"the Act" means the Food Safety Act 1990;

"Regulation 2065/2003" means Regulation (EC) No. 2065/2003 of the European Parliament and of the Council on smoke flavourings used or intended for use in or on foods[4];

"specified Community provision" means a provision of Regulation 2065/2003 specified in column 1 and described in column 2 of the Schedule to these Regulations.

    (2) Other expressions used in these Regulations and in Regulation 2065/2003 have the same meanings in these Regulations as in Regulation 2065/2003 and in these Regulations any reference to a numbered article or annex is a reference to the article or annex so numbered in Regulation 2065/2003.

Administration of Regulation 2065/2003
     3. The national competent authority for the purposes of Article 7 of Regulation 2065/2003 (application for authorisation) shall be the Food Standards Agency[5].

Condemnation of food
     4.  - (1) Where, in relation to any food, a contravention of any of Articles 4.2, 5.1, 5.2, 9.4, or 9.5 has occurred - 

(a) that food shall be treated for the purposes of section 9 of the Act as failing to comply with the food safety requirements; and

(b) if that food is part of a batch, lot or consignment of food of the same class or description, it shall be presumed, until the contrary is proved, that all of the food in that batch, lot or consignment fails to comply with those requirements.

    (2) For the purposes of this regulation "food" includes any primary smoke condensate, primary tar fraction or derived smoke flavouring.

Offences and penalties
     5. Any person who contravenes or fails to comply with any of the specified Community provisions contained in the Schedule to these Regulations shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.

Application of various provisions of the Food Safety Act 1990
     6. The following provisions of the Act shall apply for the purposes of these Regulations and Regulation 2065/2003 as they apply for the purposes of the Act  - 

(a) section 3 (presumption that food is intended for human consumption);

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

(c) section 21 (defence of due diligence) as it applies for the purposes of sections 14 or 15 of that Act);

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

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

(f) section 33(1) (obstruction, etc. of officers);

(g) section 33(2), with the modification that the reference to "any such requirement as is mentioned in subsection 1(b) above" shall be deemed to be a reference to any such requirement as is mentioned in that subsection as applied by sub-paragraph (f);

(h) section 35(1) (punishment of offences)[6] insofar as it relates to offences under section 33(1) as applied by sub-paragraph (f);

(i) section 35(2) and (3) insofar as it relates to offences under section 33(2) as applied by sub-paragraph (g);

(j) section 36 (offences by bodies corporate); and

(k) section 44 (protection of officers acting in good faith).

Enforcement
     7. Each food authority shall enforce and execute these Regulations within their area.



Signed by authority of the Secretary of State for Health


Melanie Johnson
Parliamentary Under Secretary of State, Department of Health

2nd March 2005

[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 paragraphs 7 and 8 of Schedule 5 to the Food Standards Act 1999 (1999 c. 28), and paragraphs 12 and 21 of that Schedule amend respectively sections 17(1) and 48 of the 1990 Act. Section 48 was also amended by S.I. No. 2004/2990. Functions of "the Ministers" so far as exercisable in relation to Wales were transferred to the National Assembly for Wales by the National Assembly for Wales (Transfer of Functions) Order 1999 (S.I. 1999/672), as read with section 40(3) of the 1999 Act, and 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.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). By virtue of regulation 5 of the Food Safety Act 1990 (Amendment) Regulations 2004 (S.I. No. 2004/2290), with effect from 7th December 2004 the consultation requirement contained in section 48(4) of the 1990 Act is disapplied in any case in which consultation is required by Article 9 of Regulation (EC) No. 178/2002.back

[4] OJ No. L309, 26.11.2003, p.1.back

[5] Whose address in England is Aviation House, 125 Kingsway, London WC2B 6NH.back

[6] Section 35(1) is amended by s. 280(2) and Schedule 26 of the Criminal Justice Act 2003 from a date to be appointed.back

[b] Amended by Correction Slip. Page 1; the Coming into force information should read "Coming into force in accordance with regulation 1". back