Statutory Instrument 2005 No. 2626
The Official Feed and Food Controls (England)
Regulations 2005
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STATUTORY INSTRUMENTS
2005 No. 2626
FOOD, ENGLAND
The Official Feed and Food Controls (England)
Regulations 2005
| |
Made |
21st September 2005 |
|
| |
Laid before Parliament |
28th September 2005 |
|
| |
Coming into force |
1st January 2006 |
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ARRANGEMENT OF REGULATIONS
PART 1
PRELIMINARY
PART 2
MAIN PROVISIONS
PART 3
Official controls on feed and food of non–animal origin from
third countries
PART 4
AMENDMENTS TO THE GENERAL FOOD REGULATIONS 2004
PART 5
ENFORCEMENT AND SUPPLEMENTARY PROVISIONS
SCHEDULES
The Secretary of State, in exercise (as
respects regulation 41 of the following Regulations) of the powers
conferred by sections 16(1), 17(2) and 48(1) of the Food Safety Act
1990[1] and
now vested in her[2], and
having had regard in accordance with section 48(4A) of that Act to
relevant advice given by the Food Standards
Agency;
And the Secretary of State,
being a Minister designated for the purposes of section 2(2) of the
European Communities Act 1972[3] in
relation to measures relating to food (including drink) including the
primary production of food and measures relating to feed produced for
or fed to food–producing animals[4], the
common agricultural policy of the European Community[5] and
measures in the veterinary and phytosanitary fields for the protection
of public health[6], in
exercise (as respects the following Regulations apart from regulation
41) of the powers conferred on her by the said section
2(2);
And after consultation as
required by Article 9 of Regulation (EC) No. 178/2002 of the European
Parliament and of the Council laying down the general principles and
requirements of food law, establishing the European Food Safety
Authority and laying down procedures in matters of food safety[7];
Makes the following Regulations:
PART 1
PRELIMINARY
Title, commencement and
application
1. These
Regulations —
(a) may be cited as the Official Feed and Food Controls
(England) Regulations 2005;
(b) come into force on 1st
January 2006; and
(c) apply in relation to England
only.
Interpretation
2. —(1) In these Regulations —
"the Act" means the Food Safety Act 1990;
"the Agency" means the Food Standards Agency;
(a) in relation to a competent authority, means any person
(whether or not an officer of the authority) who is authorised by
them in writing, either generally or specially, to act in matters
arising under the Official Control Regulations; and
(b) in
relation to a relevant enforcement authority, means any person
(whether or not an officer of the authority) who is authorised by
them in writing, either generally or specially, to act in matters
arising under Part 2 of these Regulations in relation to their
execution and enforcement of regulation 16;
"competent authority" means an authority which, by virtue of
regulation 3, is designated for the purposes of any of the
provisions of Regulation 882/2004;
"feed authority" means the authority required by section 67(1)
of the Agriculture Act 1970[8] to
enforce that Act within its area or district as the case may be;
"food authority" has the meaning it bears by virtue of section
5(1) of the Act, except that it does not include the appropriate
Treasurer referred to in section 5(1)(c) of the Act (which deals
with the Inner Temple and Middle Temple);
"the Official Control Regulations" means these Regulations and
Regulation 882/2004;
"port health authority" means —
(c) in relation to the London port health district (within the
meaning given to that phrase for the purposes of the Public Health
(Control of Disease) Act 1984[9] by
section 7(1) of that Act), the Common Council of the City of London;
and
(d) in relation to any port health district constituted
by order under section 2(3) of the Public Health (Control of
Disease) Act 1984, a port health authority for that district
constituted by order under section 2(4) of that Act;
"premises" includes any establishment, any place, vehicle, stall
or moveable structure and any ship or aircraft;
"primary production" has the meaning it bears in Regulation
852/2004;
"Regulation 178/2002", "Regulation 852/2004", "Regulation
853/2004", "Regulation 882/2004" and "Directive 2004/41" have the
meanings respectively given to them in Schedule 1;
"relevant enforcement authority" means a body which, by virtue
of regulation 17, is made responsible for executing and enforcing
paragraph (3) of regulation 5, paragraph (8) of regulation 9 and
regulations 11 and 16;
"relevant feed law" has the meaning given to it in Schedule 2;
and
"relevant food law" has the meaning given to it in Schedule
3.
(2) Subject to paragraph (3), any
expression other than one defined in paragraph (1) that is used both
in these Regulations and in the Act has the meaning it bears in the
Act.
(3) Any expression used both in
these Regulations and in Regulation 178/2002 or Regulation 882/2004
has the meaning it bears in Regulation 178/2002 or Regulation 882/2004
as the case may be.
(4) Any reference
in these Regulations to a food authority includes a reference to a
port health authority and in the context of such a reference any
reference to a food authority's area includes a reference to a port
health authority's district.
PART 2
MAIN PROVISIONS
Competent
authorities
3. —(1)
Subject to paragraphs (2) and (5), any body specified in Column 1 of
Schedule 4 is designated as a competent authority for the purposes of
the provisions of Regulation 882/2004 indicated in the corresponding
entry in Column 2 of that Schedule in so far as those provisions apply
in relation to relevant feed law.
(2)
Where the feed authority is designated as a competent authority
pursuant to paragraph (1) the designation shall extend to its area or
district only, as the case may be.
(3)
Subject to paragraphs (4) to (6), any body specified in Column 1 of
Schedule 5 is designated as a competent authority for the purposes of
the provisions of Regulation 882/2004 indicated in the corresponding
entry in Column 2 of that Schedule in so far as those provisions apply
in relation to relevant food law.
(4)
Where the food authority is designated as a competent authority
pursuant to paragraph (3) the designation shall extend to its area
only.
(5) Where the Agency is
designated as a competent authority pursuant to paragraph (1) or (3)
for the purposes of Article 31(1) of Regulation 882/2004, the
designation shall extend in relation to primary production and the
associated operations in respect of which the Agency executes and
enforces the Food Hygiene (England) Regulations 2005[10] by
virtue of regulation 5(1)(a) of those
Regulations.
(6) Where the Agency is
designated as a competent authority pursuant to paragraph (3) for the
purposes of Article 31(2) of Regulation 882/2004, the designation
shall extend, as regards Article 31(2)(a) to (e), in relation to those
establishments and activities in respect of which the Agency executes
and enforces the Food Hygiene (England) Regulations 2005 by virtue of
regulation 5(2) of those Regulations.
Exchanging and
providing information
4. —(1) For the purposes of enabling competent authorities,
other OFFC authorities and member States to fulfil the obligations
placed upon them by Regulation 882/2004 competent authorities may
exchange among themselves or provide to other OFFC authorities any
information received by them in the execution and enforcement of
relevant feed law or relevant food
law.
(2) For the purpose of executing
and enforcing relevant feed law or relevant food law, competent
authorities may exchange among themselves any information received by
them in the execution and enforcement of relevant feed law or relevant
food law.
(3) Competent authorities may
share information received by them in the execution and enforcement of
relevant feed law or relevant food law with the bodies that execute
and enforce relevant feed law or relevant food law in Wales, Northern
Ireland and Scotland for the purposes of facilitating the execution
and enforcement of relevant feed law or relevant food law in those
countries.
(4) Paragraphs (1), (2) and
(3) are without prejudice to any other power of competent authorities
to disclose information by or under Community
legislation.
(5) For the purposes of
this regulation, "other OFFC authorities" means authorities designated
in the United Kingdom as competent authorities for the purposes of
Regulation 882/2004 other than the competent authorities designated
under these Regulations.
Obtaining
information
5. —(1)
For the purpose of enabling competent authorities and member States to
fulfil the obligations placed on them by Regulation 882/2004 and for
the purpose of executing and enforcing relevant feed law or relevant
food law, a competent authority may require a control body —
(a) to provide the competent authority with any information
which it has reasonable cause to believe the control body is able to
give; and
(b) to make available to the competent authority
for inspection by it any records which it has reasonable cause to
believe are held by the control body or are otherwise within its
control (and, if they are kept in computerised form, to make them
available in a legible form).
(2) The competent authority may copy any
records made available to it under paragraph
(1)(b).
(3) A person who —
(a) fails without reasonable excuse to comply with any
requirement imposed under paragraph (1); or
(b) in purported
compliance with such a requirement furnishes information which he
knows to be false or misleading in any material particular or
recklessly furnishes information which is false or misleading in any
material particular,
is guilty of an offence.
(4) For the
purposes of paragraph (1), the term "control body" includes any
member, officer or employee of a control body.
Power to
issue codes of recommended practice
6. —(1) For the guidance of feed authorities and food
authorities the Secretary of State may issue codes of recommended
practice as regards —
(a) functions conferred upon those authorities in their capacity
as competent authorities by or under Regulation 882/2004;
or
(b) the execution and enforcement of Part 3 of these
Regulations,
and any such code shall be laid before Parliament after being
issued.
(2) The Agency may, after
consulting the Secretary of State, give a feed authority or food
authority a direction requiring them to take any specified steps in
order to comply with a code issued under this
regulation.
(3) In exercise of the
functions conferred on them as competent authorities by or under
Regulation 882/2004, every feed authority and food authority —
(a) shall have regard to any relevant provision of any such
code; and
(b) shall comply with any direction which is given
under this regulation and requires them to take any specified steps
in order to comply with such a code.
(4) Any direction under paragraph (2)
shall, on the application of the Agency, be enforceable by mandatory
order.
(5) The Agency shall consult the
Secretary of State before making an application under paragraph
(4).
(6) Before issuing any code under
this regulation, the Secretary of State shall have regard to any
relevant advice given by the Agency.
Monitoring of
enforcement action
7.
—(1) The Agency has the function of monitoring the performance of
enforcement authorities in enforcing relevant audit
legislation.
(2) That function
includes, in particular, setting standards of performance (whether for
enforcement authorities generally or for particular authorities) in
relation to the enforcement of any relevant audit
legislation.
(3) Each annual report of
the Agency shall contain a report on its activities during the year in
enforcing any relevant audit legislation for which it is the
enforcement authority and its performance in respect of —
(a) any standards under paragraph (2) that apply to those
activities; and
(b) any objectives relating to those
activities that are specified in the statement of objectives and
practices under section 22 of the Food Standards Act 1999[11].
(4) The Agency may make a report to any
other enforcement authority on their performance in enforcing any
relevant audit legislation and such a report may include guidance as
to action which the Agency considers would improve that
performance.
(5) The Agency may direct
an authority to which such a report has been made —
(a) to arrange for the publication in such manner as may be
specified in the direction of, or of specified information relating
to, the report; and
(b) within such period as may be so
specified to notify the Agency of what action they have taken or
propose to take in response to the report.
(6) Section 19 of the Food Standards Act
1999 shall apply in relation to information obtained through
monitoring under this regulation as if it were information obtained
through monitoring under section 12 of that Act.
Power to
request information relating to enforcement
action
8. —(1) For
the purpose of carrying out its function under regulation 7 in
relation to any enforcement authority the Agency may require a person
mentioned in paragraph (2) —
(a) to provide the Agency with any information which it has
reasonable cause to believe that person is able to give;
or
(b) to make available to the Agency for inspection any
records which it has reasonable cause to believe are held by that
person or otherwise within his control (and, if they are kept in
computerised form, to make them available in a legible
form).
(2) A requirement under paragraph (1) may
be imposed on —
(a) the enforcement authority or any member, officer or employee
of the authority; or
(b) a person subject to any duty under
relevant audit legislation (being a duty enforceable by an
enforcement authority) or any officer or employee of such a
person.
(3) The Agency may copy any records made
available to it in pursuance of a requirement under paragraph
(1)(b).
Power of entry for persons monitoring enforcement
action
9. —(1) The
Agency may authorise any individual (whether a member of its staff or
otherwise) to exercise the powers specified in paragraph (4) for the
purpose of carrying out its function under regulation 7 in relation to
any enforcement authority.
(2) No
authorisation under this regulation shall be issued except in
pursuance of a decision taken by the Agency itself or by a committee,
sub–committee or member of the Agency acting on behalf of the
Agency.
(3) An authorisation under this
regulation shall be in writing and may be given subject to any
limitations or conditions specified in the authorisation (including
conditions relating to hygienic precautions to be taken while
exercising powers in pursuance of the
authorisation).
(4) An authorised
person may —
(a) enter any premises mentioned in paragraph (5) at any
reasonable hour in order to inspect the premises or anything which
may be found on them;
(b) take samples of any articles or
substances found on such premises;
(c) inspect and copy any
records found on such premises (and, if they are kept in
computerised form, require them to be made available in a legible
form);
(d) require any person present on such premises to
provide him with such facilities, such records or information and
such other assistance as he may reasonably request.
(5) The premises which may be entered by an
authorised person are —
(a) any premises occupied by the enforcement
authority;
(b) any laboratory or similar premises at which
work related to the enforcement of any relevant legislation has been
carried out for the enforcement authority; and
(c) any other
premises (not being a private dwelling–house) which the authorised
person has reasonable cause to believe are premises in respect of
which the enforcement powers of the enforcement authority are (or
have been) exercisable.
(6) The power to enter premises conferred
on an authorised person includes power to take with him any other
person he may consider appropriate.
(7)
An authorised person shall on request —
(a) produce his authorisation before exercising any powers under
paragraph (4); and
(b) provide a document identifying any
sample taken, or documents copied, under those powers.
(8) If a person who enters any premises by
virtue of this section discloses to any person any information
obtained on the premises with regard to any trade secret he is, unless
the disclosure is made in the performance of his duty, guilty of an
offence.
(9) Where the Agency is the
enforcement authority in relation to relevant audit legislation this
regulation applies in relation to the Agency in respect of its
performance in enforcing those provisions, with the omission of
paragraph (5)(a).
(10) In this
regulation "authorised person" means a person authorised under this
regulation.
Meaning of "enforcement authority" and related
expressions
10. —(1)
In regulations 7 to 9 "relevant audit legislation" means relevant feed
law and relevant food law in respect of which the Agency is designated
as a competent authority pursuant to paragraphs (1) and (3)
respectively of regulation 3 but does not include "relevant
legislation" as defined in section 15 of the Food Standards Act
1999.
(2) In regulations 7 to 9
"enforcement authority" means the authority by whom relevant audit
legislation is to be enforced and includes the Agency itself if by
virtue of that legislation it is the enforcement authority in relation
to it but does not include the European Commission; and "enforcement"
in relation to relevant audit legislation includes the execution of
any provisions of that legislation.
(3)
Any reference in regulations 7 to 9 (however expressed) to the
performance of an enforcement authority in enforcing any relevant
audit legislation includes a reference to the capacity of that
authority to enforce it.
Offences relating to regulations 8
and 9
11. A person
who —
(a) intentionally obstructs a person exercising powers under
paragraph (4)(a), (b) or (c) of regulation 9;
(b) fails
without reasonable excuse to comply with any requirement imposed
under paragraph (1) of regulation 8 or paragraph (4)(d) of
regulation 9; or
(c) in purported compliance with such a
requirement furnishes information which he knows to be false or
misleading in any material particular or recklessly furnishes
information which is false or misleading in any material
particular,
is guilty of an offence.
Right of
appeal
12. —(1) Any
person who is aggrieved by a decision of the competent authority taken
in respect of an establishment subject to approval under Article 4(2)
of Regulation 853/2004 pursuant to —
(a) Article 31(2)(c) of Regulation 882/2004
(approval);
(b) Article 31(2)(d) of Regulation 882/2004
(conditional approval and full approval); or
(c) Article
31(2)(e) of Regulation 882/2004 (withdrawal of approval and
suspension of approval),
may appeal to a magistrates'
court.
(2) The procedure on an appeal
to a magistrates' court under paragraph (1) shall be by way of
complaint for an order, and the Magistrates' Courts Act 1980[12]
shall apply to the proceedings.
(3) The
period within which an appeal under paragraph (1) may be brought shall
be one month from the date on which notice of the decision was served
on the person desiring to appeal and the making of a complaint for an
order shall be deemed for the purposes of this paragraph to be the
bringing of the appeal.
(4) Where on an
appeal under paragraph (1) a magistrates' court determines that the
decision of the competent authority is incorrect, the authority shall
give effect to the determination of the
court.
(5) Where an approval is
withdrawn, the food business operator who, immediately before such
withdrawal, had been using the establishment concerned may continue to
use it, subject to any conditions imposed by the competent authority
for the protection of public health, unless —
(a) the time for appealing against the decision to withdraw the
approval has expired without an appeal having been lodged;
and
(b) where an appeal against that decision has been
lodged, the appeal has been finally disposed of or
abandoned.
(6) Nothing in paragraph (5) shall permit
an establishment to be used for a food business if —
(a) a hygiene prohibition order, a hygiene emergency prohibition
notice or a hygiene emergency prohibition order has been imposed in
relation to the establishment;
(b) a prohibition order, an
emergency prohibition notice, an emergency prohibition order or an
emergency control order has been imposed in relation to the
establishment pursuant to section 11, 12 or 13 of the
Act;
(c) the approval of the establishment has been suspended
pursuant to Article 31(2)(e) of Regulation 882/2004; or
(d)
the establishment is prevented from operating following the service
of a remedial action notice.
(7) In this Regulation each of the terms
"hygiene prohibition order", "hygiene emergency prohibition notice",
"hygiene emergency prohibition order" and "remedial action notice" has
the same meaning that it bears in the Food Hygiene (England)
Regulations 2005.
Appeal to Crown Court against dismissal of
appeal under regulation 12(1)
13. A person who is aggrieved by the dismissal by a
magistrates' court of an appeal to it under regulation 12(1) may
appeal to the Crown Court.
Staff of competent authority of
another member State
14. An authorised officer of a competent authority may
take with him the staff of the competent authority of another member
State for the purpose of conducting an administrative enquiry under
Article 36 of Regulation 882/2004.
Commission
experts
15. —(1)
When an enforcing officer enters premises for the purposes of
executing and enforcing official controls he may take with him a
Commission expert to enable that expert to carry out functions under
Article 45 of Regulation 882/2004.
(2)
In this Regulation "enforcing officer" means an authorised officer of
any authority which is responsible for executing and enforcing
official controls for the verification of compliance with relevant
feed law or relevant food law.
Prohibition on disclosure of
trade secrets
16. If
a person enters any premises by virtue of regulation 14 or 15 and
discloses to any person any information obtained on the premises with
regard to any trade secret he is, unless the disclosure is made in the
performance of his duty, guilty of an offence.
Execution and
enforcement
17. —(1)
The authority responsible for executing and enforcing paragraph (3) of
regulation 5 shall be the competent authority who imposed the
requirement on the control body concerned under paragraph (1) of that
regulation.
(2) The authority
responsible for executing and enforcing paragraph (8) of regulation 9
and regulation 11 shall be the
Agency.
(3) The authority responsible
for executing and enforcing regulation 16 shall be the authority whose
officer took the person who made the disclosure on to the premises
concerned.
Powers of entry
18. —(1) An authorised officer of a relevant
enforcement authority other than the Agency shall, on producing, if so
required, some duly authenticated document showing his authority, have
a right at all reasonable hours —
(a) to enter any premises within the authority's area or as the
case may be district for the purpose of ascertaining whether there
is or has been on the premises any contravention of paragraph (3) of
regulation 5 or regulation 16 for which that authority has
enforcement responsibility pursuant to paragraph (1) or as the case
may be (3) of regulation 17; and
(b) to enter any premises,
whether within or outside the authority's area or as the case may be
district, for the purpose of ascertaining whether there is on the
premises any evidence of any such contravention within that area or
district,
but admission to any premises used only as a private dwelling–house
shall not be demanded as of right unless 24 hours' notice of the
intended entry has been given to the
occupier.
(2) An authorised officer of
the Agency shall, on producing if so required some duly authenticated
document showing his authority, have a right at all reasonable hours
to enter any premises for the purpose of —
(a) ascertaining whether there is or has been on the premises
any contravention of paragraph (8) of regulation 9 or regulation 11,
or any contravention of paragraph (3) of regulation 5 or regulation
16 for which the Agency has enforcement responsibility pursuant to
paragraph (1) or as the case may be (3) of regulation 17;
and
(b) ascertaining whether there is on the premises any
evidence of any such contravention,
but admission to any premises used only as a private dwelling–house
shall not be demanded as of right unless 24 hours' notice of the
intended entry has been given to the
occupier.
(3) If a justice of the
peace, on sworn information in writing, is satisfied that there is
reasonable ground for entry onto any premises for any such purpose as
is mentioned in paragraph (1) or (2) and either —
(a) that admission to the premises has been refused, or a
refusal is apprehended, and that notice of the intention to apply
for a warrant has been given to the occupier; or
(b) that an
application for admission, or the giving of such a notice, would
defeat the object of the entry, or that the case is one of urgency,
or that the premises are unoccupied or the occupier is temporarily
absent,
the justice may by warrant signed by him authorise the authorised
officer to enter the premises, if need be by reasonable
force.
(4) Every warrant granted under
this regulation shall continue in force for a period of one
month.
(5) An authorised officer
entering any premises by virtue of this regulation, or of a warrant
issued under it, may take with him such other persons as he considers
necessary, and on leaving any unoccupied premises which he has entered
by virtue of such a warrant shall leave them as effectively secured
against unauthorised entry as he found
them.
(6) An authorised officer
entering premises by virtue of this regulation, or of a warrant issued
under it, may inspect any records (in whatever form they are held)
and, where any such records are stored in any electronic form
—
(a) may have access to, and inspect and check the operation of,
any computer and any associated apparatus or material which is or
has been in use in connection with the records; and
(b) may
require any person having charge of, or otherwise concerned with the
operation of, the computer, apparatus or material to afford him such
assistance as he may reasonably require.
(7) Any officer exercising any power
conferred by paragraph (6) may —
(a) seize and detain any records which he has reason to believe
may be required as evidence in proceedings under any of the
provisions of this Part of the Regulations; and
(b) where the
records are stored in any electronic form, require the records to be
produced in a form in which they may be taken away.
(8) If any person who enters any premises
by virtue of this regulation, or of a warrant issued under it,
discloses to any person any information obtained by him on the
premises with regard to any trade secret, he shall, unless the
disclosure was made in the performance of his duty, be guilty of an
offence.
(9) Nothing in this regulation
authorises any person, except with the permission of the local
authority under the Animal Health Act 1981[13],
to enter any premises —
(a) on which an animal or bird affected with any disease to
which that Act applies is kept; and
(b) which is situated in
a place declared under that Act to be infected with such a
disease.
Obstruction etc. of officers
19. —(1) Any person who —
(a) intentionally obstructs any person acting in the execution
of this Part of these Regulations; or
(b) without reasonable
cause, fails to give to any person acting in the execution of this
Part of these Regulations any assistance or information which that
person may reasonably require of him for the performance of his
functions under this Part of these Regulations,
shall be guilty of an offence.
(2)
Any person who, in purported compliance with any such requirement as
is mentioned in paragraph (1)(b)—
(a) furnishes information which he knows to be false or
misleading in a material particular; or
(b) recklessly
furnishes information which is false or misleading in a material
particular,
shall be guilty of an offence.
(3)
Nothing in paragraph (1)(b) shall be construed as requiring any person
to answer any question or give any information if to do so might
incriminate him.
Penalties
20. —(1) Subject to paragraph (2), a person guilty
of an offence under this Part of these Regulations shall be liable
—
(a) on summary conviction to a fine not exceeding the statutory
maximum; or
(b) on conviction on indictment to imprisonment
for a term not exceeding two years, to a fine or to both.
(2) A person guilty of an offence under
paragraph (3) of regulation 5, paragraph (8) of regulation 9 or
regulation 11 or 16 shall be liable on summary conviction to a fine
not exceeding level 5 on the standard
scale.
(3) A person guilty of an
offence under regulation 19 shall be 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.
Time limit
for prosecutions
21.
No prosecution for an offence under this Part of these Regulations
which is punishable under paragraph (1) of regulation 20 shall be
begun after the expiry of —
(a) three years from the commission of the offence;
or
(b) one year from its discovery by the
prosecutor,
whichever is the earlier.
PART 3
OFFICIAL CONTROLS ON FEED AND FOOD OF NON–ANIMAL ORIGIN FROM
THIRD COUNTRIES
Interpretation of this Part of these
Regulations
22. In
this Part of these Regulations —
"authorised officer", in relation to an enforcement authority,
means any person (whether or not an officer of the authority) who is
authorised by them in writing, either generally or specially, to act
in matters arising under the Import Provisions;
"the Commissioners" means the Commissioners for Her Majesty's
Revenue and Customs;
"enforcement authority" means the feed authority or the food
authority;
"the Import Provisions" means this Part of these Regulations and
Articles 15 to 24 of Regulation 882/2004;
"outside England enforcement authority" means the body
responsible for enforcing the legislation in force with respect to
imported products in any part of the United Kingdom except
England;
"product" means feed or food whose import is regulated by
Article 15 of Regulation 882/2004 (feed and food of non–animal
origin not included in the scope of Directive 97/78/EC) and includes
those composite food products listed in the Annex to Commission
Decision 2002/349/EC laying down the list of products to be examined
at border inspection posts under Council Directive 97/78/EC[14]
which include only a limited percentage of products of animal origin
and which are thereby excluded from the provisions of Directive
97/78/EC by Article 3(1) of that Decision; and
"the relevant territories" means the territories referred to in
Annex I to Regulation 882/2004.
Feed enforcement
responsibilities
23.
It shall be the responsibility of each feed authority to execute and
enforce the Import Provisions in its area or district as the case may
be in relation to feed.
Food enforcement
responsibilities
24.
It shall be the responsibility of each food authority to execute and
enforce the Import Provisions in its area in relation to
food.
Functions of the
Commissioners
25.
The Commissioners shall carry out the functions given to customs
services under Article 24 of Regulation 882/2004 in relation to feed
and food.
Deferred execution and
enforcement
26. —(1)
Where —
(a) a product from a third country has entered
England;
(b) customs examination of that product has been
completed or has been deferred until it reaches its place of
destination elsewhere in the United Kingdom;
(c) an
authorised officer of the enforcement authority for the place of
entry has on reasonable grounds issued an authorisation confirming
that —
(i) examination of the product for the purposes of the Import
Provisions should be deferred until the product arrives at its
destination elsewhere in England, or
(ii) such examination
should take place when the product arrives at its destination
elsewhere in the United Kingdom under legislation with respect to
imported products in force there; and
(d) a person importing the product gives that authorised officer
an undertaking in writing as to the matters specified in paragraph
(2),
the enforcement authority for the place in which the destination is
located, if in England, shall become responsible for enforcing and
executing the Import Provisions with respect to that product once it
arrives there.
(2) The undertaking
shall —
(a) state the destination of the product; and
(b) confirm
that —
(i) the container containing the product has been sealed and
will not be opened until it has reached that
destination,
(ii) the opening of the container has been
authorised by the enforcement authority for the place in which the
destination is located, if it is in England or the outside England
enforcement authority if the destination is not in England,
and
(iii) the container will be available at that
destination for examination under the Import Provisions or, as the
case may be, legislation with respect to imported products in
force elsewhere in the United Kingdom.
(3) Where an authorised officer of an
enforcement authority issues an authorisation pursuant to paragraph
(1)(c), he shall —
(4) Where a product has been sent to a
destination in England from another part of the British Islands and
examination of that product has been deferred under legislation with
respect to imported products in force there, the enforcement authority
for the place of destination shall become responsible for enforcing
and executing the Import Provisions with respect to that product once
it arrives in England.
(5) No person
shall breach an undertaking given under paragraph
1(d).
Prohibition on introduction of certain feed and
food
27. —(1) No
person shall —
(a) introduce into England from a third country specified feed
which fails to comply with feed safety requirements; or
(b)
introduce into England from elsewhere in the relevant territories
specified feed originating in a third country which fails to comply
with feed safety requirements.
(2) No person shall —
(a) introduce into England from a third country specified food
which fails to comply with —
(i) food safety requirements, or
(ii) the requirements
of Articles 3 to 6 of Regulation 852/2004; or
(b) introduce into England from elsewhere in the relevant
territories specified food originating in a third country which
fails to comply with —
(i) food safety requirements, or
(ii) the requirements
of Articles 3 to 6 of Regulation 852/2004.
(3) In this regulation —
(a) "specified feed" means feed that is a product;
and
(b) "specified food" means food that is a
product.
Checks on products
28. —(1) The person responsible for introducing any
product into England shall permit an authorised officer of an
enforcement authority to carry out checks in relation to the product
pursuant to Article 16 of Regulation
882/2004.
(2) When an authorised
officer is carrying out checks in relation to a product pursuant to
Article 16 of Regulation 882/2004, the person introducing the product
shall provide the facilities and assistance which the authorised
officer reasonably requires to carry them
out.
(3) When an authorised officer of
an enforcement authority is carrying out an identity check or a
physical check on a product in accordance with Article 16 of
Regulation 882/2004 he shall be entitled to require that the check
takes place at a specified place.
Detention, destruction,
special treatment, re–dispatch and other appropriate measures and
costs
29. —(1) An
enforcement authority shall have the power to do anything that a
competent authority may do under Articles 18 to 21 and 24(3) of
Regulation 882/2004 if the conditions set out in those Articles are
fulfilled.
(2) The enforcement
authority shall be the competent authority for the purposes of Article
22 of Regulation 882/2004.
Notices pursuant to Article 19 of
Regulation 882/2004 (imports of feed and food from third
countries)
30. —(1)
If an authorised officer of an enforcement authority wishes to take
any of the measures referred to in Article 19(1)(a) and (b) of
Regulation 882/2004 in respect of feed or food he shall serve a notice
to that effect on the feed or food business operator, as the case may
be, responsible for it after he has heard that feed or food business
operator as provided in Article 19.
(2)
If an authorised officer of an enforcement authority wishes to
exercise any of the powers referred to in Article 19(2) of Regulation
882/2004 in respect of feed or food he shall serve a notice to that
effect on the feed or food business operator, as the case may be,
responsible for it.
Right of appeal in respect of notices
served under regulation 30
31. —(1) Any person who is aggrieved by a decision of an
authorised officer of an enforcement authority to serve a notice under
regulation 30 may appeal to a magistrates'
court.
(2) The procedure on an appeal
to a magistrates' court under paragraph (1) shall be by way of
complaint for an order, and the Magistrates' Courts Act 1980 shall
apply to the proceedings.
(3) The
period within which an appeal under paragraph (1) may be brought shall
be one month from the date on which the notice was served on the
person desiring to appeal and the making of a complaint for an order
shall be deemed for the purposes of this paragraph to be the bringing
of the appeal.
(4) Where on an appeal
under paragraph (1) a magistrates' court determines that the decision
of the authorised officer of the enforcement authority is incorrect,
the authority shall give effect to the determination of the
court.
Appeal to Crown Court against dismissal of appeal
under regulation 31
32. A person who is aggrieved by the dismissal by a
magistrates' court of an appeal to it under regulation 31(1) may
appeal to the Crown Court.
Serious risk to animal or public
health
33. —(1)
Where the Secretary of State or the Agency learns or has reasonable
grounds to suspect that any food or feed that has been or may be
introduced into England from a third country is likely to constitute a
serious risk to animal or public health, she or as the case may be it
may by written declaration suspend, or impose conditions on, the
introduction into England of any product from the whole or any part of
that third country.
(2) Such a
declaration shall be published in such manner as the Secretary of
State or the Agency, as the case may be, thinks fit and shall specify
the product and the third country or part thereof
concerned.
(3) A declaration which
imposes conditions on the introduction of any product from a third
country or part thereof shall specify those
conditions.
(4) Where a declaration is
in force suspending the introduction of any product, no person shall
introduce that product into England if it originates in the third
country or part thereof specified in the
declaration.
(5) Where a declaration is
in force imposing conditions on the introduction of any product, no
person shall introduce that product into England if it originates in
the third country or part thereof specified in the declaration unless
the product complies with conditions specified in the
declaration.
(6) A declaration may be
modified, suspended or revoked by a further written declaration
published, so far as is practicable, in the same manner and to the
same extent as the original declaration.
Liability for
charges
34. —(1) The
enforcement authority shall notify the person responsible for a
consignment of the charge falling to be paid for the controls carried
out on it by the authority.
(2) Any
charge notified to a person by the enforcement authority under
paragraph (1) shall be payable by that person to the enforcement
authority on demand.
(3) The charge
referred to in paragraph (1) is the aggregate of the costs incurred in
relation to the consignment by the enforcement authority acting as the
competent authority for the purposes of Article 22 of Regulation
882/2004 by virtue of regulation 29(2).
Procurement by
authorised officers of samples with regard to
food
35. An
authorised officer of a food authority may, for the purposes of the
execution and enforcement by that authority of the Import Provisions
—
(a) purchase a sample of any food, or any substance capable of
being used in the preparation of food;
(b) take a sample of
any food, or any such substance, which —
(i) appears to him to be intended for placing on the market or
to have been placed on the market, for human consumption,
or
(ii) is found by him or in any premises which he is
authorised to enter by or under regulation 37;
(c) take a sample from any food source, or a sample of any
contact material, which is found by him on or in any such premises;
and
(d) take a sample of any article or substance which is
found by him on or in any such premises and which he has reason to
believe may be required as evidence in proceedings under any of the
provisions of the Import Provisions.
Analysis etc. of samples
36. —(1) An authorised officer of a food authority who has
procured a sample under regulation 35 shall —
(a) if he considers that the sample should be analysed, submit
it to be analysed by a public analyst;
(b) if he considers
that the sample should be examined, submit it to be examined by a
food examiner.
(2) A person, other than such an officer,
who has purchased any food, or any substance capable of being used in
the preparation of food, may submit a sample of it —
(a) to be analysed by the public analyst for the area in which
the purchase was made; or
(b) to be examined by a food
examiner.
(3) If, in any case where a sample is
proposed to be submitted for analysis under this regulation, the
office of public analyst for the area in question is vacant, the
sample shall be submitted to the public analyst for some other
area.
(4) If, in any case where a
sample is proposed to be or is submitted for analysis or examination
under this regulation, the food analyst or examiner determines that he
is for any reason unable to perform the analysis or examination, the
sample shall be submitted or, as the case may be, sent by him to such
other food analyst or examiner as he may
determine.
(5) A food analyst or
examiner shall analyse or examine as soon as practicable any sample
submitted or sent to him under this regulation, but may, except where
—
(a) he is the public analyst for the area in question;
and
(b) the sample is submitted to him for analysis by an
authorised officer of a food authority,
demand in advance the payment of such reasonable fee as he may
require.
(6) Any food analyst or
examiner who has analysed or examined a sample shall give to the
person by whom it was submitted a certificate specifying the result of
the analysis or examination.
(7) Any
certificate given by a food analyst or examiner under paragraph (6)
shall be signed by him, but the analysis or examination may be made by
any person acting under his
direction.
(8) In any proceedings under
the Import Provisions, the production by one of the parties —
(a) of a document purporting to be a certificate given by a food
analyst or examiner under paragraph (6); or
(b) of a document
supplied to him by the other party as being a copy of such a
certificate,
shall be sufficient evidence of the facts stated in it unless, in a
case falling within sub–paragraph (a), the other party requires that
the food analyst or examiner shall be called as a
witness.
(9) Any reference in this
regulation to a public analyst for a given area shall, where two or
more public analysts have been appointed for that area, be construed
as a reference to either or any of
them.
(10) The Food Safety (Sampling
and Qualifications) Regulations 1990[15]
shall apply in relation to a sample procured by an authorised officer
of a food authority under regulation 35 as if it were a sample
procured by an authorised officer under section 29 of the
Act.
(11) The certificate given by a
food analyst or examiner under paragraph (6) shall be in the form set
out in Schedule 3 to the Food Safety (Sampling and Qualifications)
Regulations 1990.
Powers of entry of authorised officers of
a food authority
37.
—(1) An authorised officer of a food authority shall, on producing, if
so required, some duly authenticated document showing his authority,
have a right at all reasonable hours —
(a) to enter any premises within the authority's area for the
purpose of ascertaining whether there is or has been on the premises
any contravention of the provisions of the Import Provisions in
relation to food;
(b) to enter any premises, whether within
or outside the authority's area, for the purpose of ascertaining
whether there is on the premises any evidence of any such
contravention within that area; and
(c) to enter any premises
for the purpose of the performance by the authority of their
functions under the Import Provisions,
but admission to any premises used only as a private dwelling–house
shall not be demanded as of right unless 24 hours' notice of the
intended entry has been given to the
occupier.
(2) If a justice of the
peace, on sworn information in writing, is satisfied that there is
reasonable ground for entry onto any premises for any such purpose as
is mentioned in paragraph (1) and either —
(a) that admission to the premises has been refused, or a
refusal is apprehended, and that notice of the intention to apply
for a warrant has been given to the occupier; or
(b) that an
application for admission, or the giving of such a notice, would
defeat the object of the entry, or that the case is one of urgency,
or that the premises are unoccupied or the occupier is temporarily
absent,
the justice may by warrant signed by him authorise the authorised
officer to enter the premises, if need be by reasonable
force.
(3) Every warrant granted under
this regulation shall continue in force for a period of one
month.
(4) An authorised officer
entering any premises by virtue of this regulation, or of a warrant
issued under it, may take with him such other persons as he considers
necessary, and on leaving any unoccupied premises which he has entered
by virtue of such a warrant shall leave them as effectively secured
against unauthorised entry as he found
them.
(5) An authorised officer
entering premises by virtue of this regulation, or of a warrant issued
under it, may inspect any records (in whatever form they are held)
relating to a food business and, where any such records are stored in
any electronic form —
(a) may have access to, and inspect and check the operation of,
any computer and any associated apparatus or material which is or
has been in use in connection with the records; and
(b) may
require any person having charge of, or otherwise concerned with the
operation of, the computer, apparatus or material to afford him such
assistance as he may reasonably require.
(6) Any officer exercising any power
conferred by paragraph (5) may —
(a) seize and detain any records which he has reason to believe
may be required as evidence in proceedings under any of the
provisions of the Import Provisions; and
(b) where the
records are stored in any electronic form, require the records to be
produced in a form in which they may be taken away.
(7) If any person who enters any premises
by virtue of this regulation, or of a warrant issued under it,
discloses to any person any information obtained by him on the
premises with regard to any trade secret, he shall, unless the
disclosure was made in the performance of his duty, be guilty of an
offence.
(8) Nothing in this regulation
authorises any person, except with the permission of the local
authority under the Animal Health Act 1981, to enter any premises
—
(a) on which an animal or bird affected with any disease to
which that Act applies is kept; and
(b) which is situated in
a place declared under that Act to be infected with such a
disease.
Obstruction etc. of officers
(imports)
38. —(1)
Any person who —
(a) intentionally obstructs any person acting in the execution
of the Import Provisions; or
(b) without reasonable cause,
fails to give to any person acting in the execution of the Import
Provisions any assistance or information which that person may
reasonably require of him for the performance of his functions under
the Import Provisions,
shall be guilty of an offence.
(2)
Any person who, in purported compliance with any such requirement as
is mentioned in paragraph (1)(b)—
(a) furnishes information which he knows to be false or
misleading in a material particular; or
(b) recklessly
furnishes information which is false or misleading in a material
particular,
shall be guilty of an offence.
(3)
Nothing in paragraph (1)(b) shall be construed as requiring any person
to answer any question or give any information if to do so might
incriminate him.
Offences and
penalties
39. —(1)
Any person who —
(a) contravenes or fails to comply with paragraph (5) of
regulation 26, regulation 27 or paragraph (4) or (5) of regulation
33; or
(b) fails to comply with a notice served upon him
under the Import Provisions,
shall be guilty of an offence.
(2)
Subject to paragraph (3), a person guilty of an offence under this
Part of these Regulations shall be liable —
(a) on summary conviction to a fine not exceeding the statutory
maximum; or
(b) on conviction on indictment to imprisonment
for a term not exceeding two years, to a fine or to both.
(3) A person guilty of an offence under
regulation 38 shall be 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.
Time limit for
prosecutions (imports)
40. No prosecution for an offence under this Part of these
Regulations which is punishable under regulation 39(2) shall be begun
after the expiry of —
(a) three years from the commission of the offence;
or
(b) one year from its discovery by the
prosecutor,
whichever is the earlier.
PART 4
AMENDMENTS TO THE GENERAL FOOD REGULATIONS
2004
Amendments to the General Food Regulations
2004
41. —(1) The
General Food Regulations 2004[16]
shall be amended in accordance with paragraphs (2) to (5) in so far as
they apply in relation to England.
(2)
For regulation 4 (requirements under Regulation (EC) No. 178/2002 :
offences) there shall be substituted the following Regulation
—
" 4. Any person who contravenes
or fails to comply with any of the following provisions of
Regulation (EC) No. 178/2002 shall be guilty of an offence —
(a) Article 12 (food and feed exported from the Community) in
so far as it relates to food;
(b) Article 14(1) (food
safety requirements);
(c) Article 16 (presentation) in so
far as it relates to food;
(d) Article 18(2) or (3)
(traceability) in so far as it relates to food business
operators;
(e) Article 19 (responsibilities for food : food
business operators).".
(3) For paragraph (2)(a) of regulation 5
(punishment of offences) there shall be substituted the following
provision —
" (a) in the case of an offence under regulation 4(b),
£20,000;".
(4) For paragraph (1) of regulation 6
(enforcement) there shall be substituted the following paragraph
—
" (1) Subject to paragraph (2), each
food authority shall enforce and execute the following provisions of
Regulation (EC) No. 178/2002 and these Regulations in its area
—
(a) Article 12 in so far as it relates to food;
(b)
Article 14;
(c) Article 16 in so far as it relates to
food;
(d) Article 18 in so far as it relates to food
business operators; and
(e) Article 19.".
(5) Immediately after regulation 6
(enforcement) there shall be inserted the following regulation
—
" Defence for exports
6A. In any proceedings for an offence of contravening or
failing to comply with food law it shall be a defence for the
accused to prove —
(a) that the item in respect of which the offence is alleged
to have been committed was intended for export to a country that
is not a member State and that the item could lawfully be exported
there under Article 12 of Regulation (EC) No. 178/2002;
or
(b) that the item in respect of which the offence is
alleged to have been committed was intended for export to a member
State and that —
(i) the legislation applicable to that item in that member
State is compatible with the applicable provisions of food law
(except in so far as it relates to feed produced for or fed to
food producing animals) at Community level, and
(ii) the
item complies with that legislation.".
PART 5
ENFORCEMENT AND SUPPLEMENTARY
PROVISIONS
Offences due to fault of another
person
42. Where the
commission by any person of an offence under these Regulations is due
to the act or default of some other person, that other person shall be
guilty of the offence; and a person may be convicted of the offence by
virtue of this regulation whether or not proceedings are taken against
the first–mentioned person.
Defence of due
diligence
43. —(1)
In any proceedings for an offence under these Regulations, it shall,
subject to paragraph (2), be a defence for the accused to prove that
he took all reasonable precautions and exercised all due diligence to
avoid the commission of the offence by himself or by a person under
his control.
(2) If in any case the
defence provided by paragraph (1) involves the allegation that the
commission of the offence was due to an act or default of another
person, or to reliance on information supplied by another person, the
accused shall not, without leave of the court, be entitled to rely on
that defence unless —
(a) at least seven clear days before the hearing; and
(b)
where he has previously appeared before a court in connection with
the alleged offence, within one month of his first such
appearance,
he has served on the prosecutor a notice in writing giving such
information identifying or assisting in the identification of that
other person as was then in his possession.
Offences by
bodies corporate
44.
—(1) Where an offence under these Regulations which has been committed
by a body corporate is proved to have been committed with the consent
or connivance of, or to be attributable to any neglect on the part of
—
(a) any director, manager, secretary or other similar officer of
the body corporate; or
(b) any person who was purporting to
act in any such capacity,
he as well as the body corporate shall be deemed to be guilty of
that offence and shall be liable to be proceeded against and punished
accordingly.
(2) In paragraph (1)(a)
"director", in relation to any body corporate established by or under
any enactment for the purpose of carrying on under national ownership
any industry or part of an industry or undertaking, being a body
corporate whose affairs are managed by its members, means a member of
that body corporate.
Offences by Scottish
partnerships
45.
Where an offence under these Regulations which has been committed by a
Scottish partnership is proved to have been committed with the consent
or connivance of, or to be attributable to any neglect on the part of,
a partner, he, as well as the partnership shall be deemed to be guilty
of that offence and liable to be proceeded against and punished
accordingly.
Protection of officers acting in good
faith
46. —(1) An
officer of a competent authority is not personally liable in respect
of any act done by him —
(a) in the execution or purported execution of these
Regulations; and
(b) within the scope of his
employment,
if he did that act in the honest belief that his duty under these
Regulations required or entitled him to do
it.
(2) Nothing in paragraph (1) shall
be construed as relieving any competent authority of any liability in
respect of the acts of their
officers.
(3) Where an action has been
brought against an officer of a competent authority in respect of an
act done by him —
(a) in the execution or purported execution of these
Regulations; but
(b) outside the scope of his
employment,
the authority may indemnify him against the whole or a part of any
damages which he has been ordered to pay or any costs which he may
have incurred if it is satisfied that he honestly believed that the
act complained of was within the scope of his
employment.
(4) A public analyst
appointed by a food authority shall be treated for the purposes of
this regulation as being an officer of the authority, whether or not
his appointment is a whole–time one.
Service of
documents
47. —(1)
Any document which is required or authorised under these Regulations
to be served on a person may be served —
(a) by delivering it to that person;
(b) in the case of
an incorporated company or body, by delivering it to their secretary
at their registered or principal office, or by sending it in a
prepaid letter addressed to him at that office; or
(c) in the
case of any other person, by leaving it or sending it in a prepaid
letter addressed to him at his usual or last known
residence.
(2) Where a document is to be served on the
occupier of any premises under these Regulations and it is not
reasonably practicable to ascertain the name and address of the person
on whom it should be served, or the premises are unoccupied, the
document may be served by addressing it to the person concerned in the
capacity of "occupier" of the premises (naming them), and —
(a) by delivering it to some other person at the premises;
and
(b) if there is no other person at the premises to whom
it can be delivered, by affixing it or a copy of it to some
conspicuous part of the premises.
Revocations
48. —(1) In so far as they apply in relation to England,
the instruments specified in Column 1 of Part 1 of Schedule 6 are
revoked to the extent specified in Column 3 of that
Part.
(2) The instruments specified in
Column 1 of Part 2 of Schedule 6 are revoked to the extent specified
in Column 3 of that Part.
Signed by authority of the
Secretary of State for Health
Caroline
Flint
Parliamentary Under Secretary of State, Department of
Health
21st September 2005
SCHEDULE 1Regulation 2(1)
DEFINITIONS OF COMMUNITY
LEGISLATION
"Regulation 178/2002" means Regulation
(EC) No. 178/2002 of the European Parliament and of the Council laying
down the general principles and requirements of food law, establishing
the European Food Safety Authority and laying down procedures in
matters of food safety[17] as
last amended by Regulation (EC) No. 1642/2003 of the European
Parliament and of the Council amending Regulation (EC) No. 178/2002
laying down the general principles and requirements of food law,
establishing the European Food Safety Authority and laying down
procedures in matters of food safety[18];
"Regulation
852/2004" means Regulation (EC) No. 852/2004 of the European
Parliament and of the Council on the hygiene of foodstuffs[19];
"Regulation
853/2004" means Regulation (EC) No. 853/2004 of the European
Parliament and of the Council laying down specific hygiene rules for
food of animal origin[20] as
read with Directive 2004/41;
"Regulation 882/2004" means
Regulation (EC) No. 882/2004 of the European Parliament and of the
Council on official controls performed to ensure the verification of
compliance with feed and food law, animal health and animal welfare
rules[21];
and
"Directive 2004/41" means Directive 2004/41/EC of the
European Parliament and of the Council repealing certain directives
concerning food hygiene and health conditions for the production and
placing on the market of certain products of animal origin intended
for human consumption and amending Council Directives 89/662/EEC and
92/118/EEC and Council Decision 95/408/EC[22].
SCHEDULE 2Regulation 2(1)
DEFINITION OF RELEVANT FEED LAW
"relevant feed
law" means —
(a) Part IV of the Agriculture Act 1970[23]
in so far as it applies in relation to feeding stuffs;
(b)
the Feeding Stuffs (Sampling and Analysis) Regulations 1999[24];
(c)
the Feeding Stuffs (Establishments and Intermediaries) Regulations
1999[25];
(d)
the Feeding Stuffs (Enforcement) Regulations 1999[26]
except in so far as they involve the checking of products for
compliance with any Community provision covered by the first indent
of Article 2.1(a) of Directive 95/53/EC fixing the principles
governing the organisation of official inspections in the field of
animal nutrition[27]
as last amended by Directive 2001/46/EC[28],
in so far as that Community provision is implemented in the
Feedingstuffs (Zootechnical Products) Regulations 1999[29];
(e)
the Feeding Stuffs Regulations 2000[30];
(f)
the Genetically Modified Animal Feed (England) Regulations 2004[31];
(g)
the Feeding Stuffs (Safety Requirements for Feed for Food–Producing
Animals) Regulations 2000[32];
and
(h) the Food Hygiene (England) Regulations 2005 in so far
as they apply in relation to feed[33].
SCHEDULE 3Regulation 2(1)
DEFINITION OF RELEVANT FOOD LAW
"relevant food
law" means —
(a) food law in so far as it applies in relation to food, except
in so far as it involves —
(i) the regulation of residues of veterinary medicines and
other substances under the Animals and Animal Products
(Examination for Residues and Maximum Residue Limits) Regulations
1997[34],
(ii)
the regulation of residues of pesticides under the Pesticides
(Maximum Residue Levels in Crops, Food and Feeding Stuffs)
(England and Wales) Regulations 1999[35],
(iii)
the application of the rules laid down for the protection of
designations of origin and geographical indications of
agricultural products and foodstuffs in Council Regulation (EEC)
No. 2081/92 on the protection of geographical indications and
designations of origin for agricultural products and foodstuffs[36]
as last amended by the Act concerning the conditions of accession
of the Czech Republic, the Republic of Estonia, the Republic of
Cyprus, the Republic of Latvia, the Republic of Lithuania, the
Republic of Hungary, the Republic of Malta, the Republic of
Poland, the Republic of Slovenia and the Slovak Republic and the
adjustments to the Treaties on which the European Union is
founded[37],
(iv)
the application of the rules laid down for Community certificates
of specific character which may be obtained for certain
agricultural products and foodstuffs in Council Regulation (EEC)
No. 2082/92 on certificates of specific character for agricultural
products and foodstuffs[38]as
last amended by the Act concerning the conditions of accession of
the Czech Republic, the Republic of Estonia, the Republic of
Cyprus, the Republic of Latvia, the Republic of Lithuania, the
Republic of Hungary, the Republic of Malta, the Republic of
Poland, the Republic of Slovenia and the Slovak Republic and the
adjustments to the Treaties on which the European Union is
founded,
(v) the regulation of organic products under the
Organic Products (Imports from Third Countries) Regulations
2003[39]
and the Organic Products Regulations 2004[40],
(vi)
the regulation of beef labelling under the Beef Labelling
(Enforcement) (England) Regulations 2000[41],
and
(vii) the regulation of the import of and trade in
products of animal origin —
(aa) under the Products of Animal Origin (Import and Export)
Regulations 1996[42],
with the exception of the execution and enforcement of
regulation 3 thereof by the Agency, and
(bb) under the
Products of Animal Origin (Third Country Imports) (England) (No.
4) Regulations 2004[43],
with the exception of the execution and enforcement of
regulation 5 thereof by the Agency;
(b) food law in so far as it applies in relation to materials and
articles in contact with food except in so far as it involves the
regulation of food contact materials under the Ceramic Ware (Safety)
Regulations 1988[44];
and
(c) food law in so far as it involves the regulation of
primary production and those associated operations listed in
paragraph 1 of Part AI of Annex I to Regulation 852/2004 under the
Food Hygiene (England) Regulations 2005.
SCHEDULE 4Regulation 3(1)
COMPETENT AUTHORITIES FOR THE PURPOSES OF CERTAIN PROVISIONS
OF REGULATION 882/2004 IN SO FAR AS THEY APPLY IN RELATION TO RELEVANT
FEED LAW
Column 1
Competent
authority
|
Column 2
Provisions of Regulation
882/2004
|
| The Agency |
Articles 3(6), 4(2) to (6), 5(1) to (3), 6, 7, 8(1) and (3),
9, 10, 11(1) to (3) and (5) to (7), 12, 19(1), (2) and (3), 24,
31(1) and (2)(f), 34, 35(3) and (4), 36, 37(1), 38, 39, 40(2)
and (4), 52(1) and 54 |
| The feed authority |
Articles 3(6), 4(2) to (6), 5(1) to (3), 6, 7, 8(1) and (3),
9, 10, 11(1) to (3) and (5) to (7), 15(1) to (4), 16(1) and (2),
18, 19(1) and (2), 20, 21, 22, 24, 31, 34, 35(3), 36, 37(1), 38,
39, 40(2) and (4) and 54 |
SCHEDULE 5Regulation 3(3)
COMPETENT AUTHORITIES FOR THE PURPOSES OF CERTAIN PROVISIONS
OF REGULATION 882/2004 IN SO FAR AS THEY APPLY IN RELATION TO RELEVANT
FOOD LAW
Column 1
Competent
authority
|
Column 2
Provisions of Regulation
882/2004
|
| The Agency |
Articles 3(6), 4(2) to (6), 5(1) to (3), 6, 7, 8(1) and (3),
9, 10, 11(1) to (3) and (5) to (7), 12, 14, 19(1), (2) and (3),
24, 31(1) and (2), 34, 35(3) and (4), 36, 37(1), 38, 39, 40(2)
and (4), 52(1) and 54 |
| The food authority |
Articles 3(6), 4(2) to (6), 5(1) to (3), 6, 7, 8(1) and (3),
9, 10, 11(1) to (3) and (5) to (7), 15(1) to (4), 16(1) and (2),
18, 19(1) and (2), 20, 21, 22, 24, 31, 34, 35(3), 36, 37(1), 38,
39, 40(2) and (4) and 54 |
SCHEDULE 6Regulation 48
REVOCATIONS
PART 1
REVOCATION OF INSTRUMENTS THAT APPLY IN RELATION TO ENGLAND
AND OTHER PARTS OF GREAT BRITAIN
Column 1
Instruments
|
Column 2
Reference
|
Column 3
Extent of
revocation
|
| The Arsenic in Food Regulations 1959 |
S.I. 1959/831 |
Regulation 6(a) |
| The Mineral Hydrocarbons in Food Regulations 1966 |
S.I. 1966/1073 |
Regulation 10(a) |
| The Erucic Acid in Food Regulations 1977 |
S.I. 1977/691 |
Regulation 6(a) |
| The Chloroform in Food Regulations 1980 |
S.I. 1980/36 |
Regulation 7(a) |
| The Caseins and Caseinates Regulations 1985 |
S.I. 1985/2026 |
Regulation 11(a) |
| The Imported Food Regulations 1984 |
S.I. 1984/1918 |
The whole Regulations |
| The Food (Control of Irradiation) Regulations 1990 |
S.I. 1990/2490 |
Regulation 8 |
| The Food Safety (Exports) Regulations 1991 |
S.I. 1991/1476 |
The whole Regulations |
| The Flavourings in Food Regulations 1992 |
S.I. 1992/1971 |
Regulation 8 |
| The Food Additives Labelling Regulations 1992 |
S.I. 1992/1978 |
Regulation 6 |
| The Extraction Solvents in Food Regulations 1993 |
S.I. 1993/1658 |
Regulation 6 |
| The Infant Formula and Follow–on Formula Regulations 1995 |
S.I. 1995/77 |
Regulations 5(2) and 6(2) |
| The Sweeteners in Food Regulations 1995 |
S.I. 1995/3123 |
Regulation 8 |
| The Colours in Food Regulations 1995 |
S.I. 1995/3124 |
Regulation 10 |
| The Miscellaneous Food Additives Regulations 1995 |
S.I. 1995/3187 |
Regulation 8 |
| The Food Labelling Regulations 1996 |
S.I. 1996/1499 |
Regulation 47 |
| The Imported Food Regulations 1997 |
S.I. 1997/2537 |
The whole Regulations |
| The Animals and Animal Products (Examination for Residues
and Maximum Residue Limits) Regulations 1997 |
S.I. 1997/1729 |
Regulation 29 |
| The Foods Intended for Use in Energy Restricted Diets for
Weight Reduction Regulations 1997 |
S.I. 1997/2182 |
Regulation 8 |
| The Bread and Flour Regulations 1998 |
S.I. 1998/141 |
Regulation 9 |
| The Plastic Materials and Articles in Contact with Food
Regulations 1998 |
S.I. 1998/1376 |
Regulation 3(2) |
| The Drinking Milk Regulations 1998 |
S.I. 1998/2424 |
Regulation 7 |
| The Natural Mineral Water, Spring Water and Bottled Drinking
Water Regulations 1999 |
S.I. 1999/1540 |
Regulation 18(1) and (3) |
PART 2
REVOCATION OF INSTRUMENTS THAT APPLY IN RELATION TO ENGLAND
ONLY
Column 1
Instruments
|
Column 2
Reference
|
Column 3
Extent of
revocation
|
| The Spreadable Fats (Marketing Standards) (England)
Regulations 1999 |
S.I. 1999/2457 |
Regulation 7 |
| The Medical Food (England) Regulations 2000 |
S.I. 2000/845 |
Regulation 6 |
| The Coffee Extracts and Chicory Extracts (England)
Regulations 2000 |
S.I. 2000/3323 |
Regulation 9 |
| The Food For Particular Nutritional Uses (Addition of
Substances for Specific Nutritional Purposes) (England)
Regulations 2002 |
S.I. 2002/1817 |
Regulation 8 |
| The Food Supplements (England) Regulations 2003 |
S.I. 2003/1387 |
Regulation 10 |
| The Specified Sugar Products (England) Regulations 2003 |
S.I. 2003/1563 |
Regulation 8 |
| The Fruit Juices and Fruit Nectars (England) Regulations
2003 |
S.I. 2003/1564 |
Regulation 8 |
| The Condensed Milk and Dried Milk (England) Regulations
2003 |
S.I. 2003/1596 |
Regulation 8 |
| The Cocoa and Chocolate Products (England) Regulations
2003 |
S.I. 2003/1659 |
Regulation 9 |
| The Meat Products (England) Regulations 2003 |
S.I. 2003/2075 |
Regulation 10(b) |
| The Honey (England) Regulations 2003 |
S.I. 2003/2243 |
Regulation 8 |
| The Jam and Similar Products (England) Regulations 2003 |
S.I. 2003/3120 |
Regulation 8 |
| The Processed Cereal–based Foods and Baby Foods for Infants
and Young Children (England) Regulations 2003 |
S.I. 2003/3207 |
Regulation 11 |
| The Contaminants in Food (England) Regulations 2004 |
S.I. 2004/3062 |
Regulation 6 |
| The Food with Added Phytosterols or Phytostanols (Labelling)
(England) Regulations 2004 |
S.I. 2004/3344 |
Regulation 9 |
| The Materials and Articles in Contact with Food (England)
Regulations 2005 |
S.I. 2005/898 |
Regulation 10(3) |
EXPLANATORY NOTE
(This note is
not part of the
Regulations)
1.
These Regulations, which apply in relation to England only, provide
for the execution and enforcement there of Regulation (EC) No.
882/2004 of the European Parliament and of the Council on official
controls performed to ensure the verification of compliance with feed
and food law, animal health and animal welfare rules (OJ No. L165,
30.4.2004, p.1) in relation to "relevant feed law" and "relevant food
law", each defined in regulation 2(1) thereof. The revised text of
Regulation (EC) No. 882/2004 is now set out in a Corrigendum (OJ No.
L191, 28.5.2004, p.1).
2. These
Regulations also impose prohibitions on the introduction of certain
feed and food into England in the light of Article 11 of Regulation
(EC) No. 178/2002 of the European Parliament and of the Council laying
down the general principles and requirements of food law, establishing
the European Food Safety Authority and laying down procedures in
matters of food safety (OJ No. L31, 1.2.2002, p.1), as last amended by
Regulation (EC) No. 1642/2003 of the European Parliament and of the
Council (OJ No. L245, 29.9.2003, p.4) and as read with Article 10 of
Regulation (EC) No. 852/2004 of the European Parliament and of the
Council on the hygiene of foodstuffs (OJ No. L139, 30.4.2004, p.1; the
revised text of that Regulation is now set out in a Corrigendum, OJ
No. L226, 25.6.2004, p.3).
3.
These Regulations also amend the General Food Regulations 2004 (S.I.
2004/3279) in so far as they apply in relation to England, to provide
for the execution and enforcement there of Article 12 of Regulation
(EC) No. 178/2002, which imposes conditions on the export and
re–export of food and feed from the Community for placing on the
market of third countries, in so far as that Article relates to food.
These Regulations also insert a new regulation, 6A, into the General
Food Regulations 2004 in so far as they apply in relation to England.
That new regulation provides a defence in relation to exports in the
case of prosecutions for contravening or failing to comply with food
law. The defence applies both in relation to items intended for export
to a third country and to items intended for export to a member
State.
4. These Regulations
cite as enabling powers both section 2(2) of the European Communities
Act 1972 (1972 c.68) and certain sections of the Food Safety Act 1990
(1990 c.16). The Food Safety Act powers have been exercised to enact
regulation 41(2) of these Regulations, which inserts a revised
regulation 4 into the General Food Regulations 2004 to provide for the
execution and enforcement of Article 12 of Regulation (EC) No.
178/2002 in so far as it relates to food, as described in paragraph 3
above.
5. These Regulations
—
(a) provide for the designation of specified bodies as competent
authorities for the purposes of the provisions of Regulation (EC)
No. 882/2004 (regulation 3);
(b) provide for the
exchange and provision of information by competent authorities
(regulation 4);
(c) enable a competent authority to
require a control body to provide information and make records
available and provide that a person who –
(i) fails to comply with a requirement to provide information
or make records available, or
(ii) in purported compliance
with such a requirement furnishes false or misleading
information,
is guilty of an offence (regulation 5);
(d) enable
the Secretary of State to issue codes of recommended practice to
feed authorities and food authorities (regulation
6);
(e) give the Food Standards Agency the function of
monitoring the performance of enforcement authorities in enforcing
certain legislation (regulation 7);
(f) give the Food
Standards Agency the power, for the purpose of carrying out the
function referred to in sub–paragraph (e) of this paragraph
—
(i) to require information to be provided and records to be
made available (regulation 8), and
(ii) to authorise
individuals (who may thereby exercise certain powers, including a
power of entry) (regulation 9);
(g) define certain terms used in regulations 7 to 9 thereof
(regulation 10);
(h) provide that a person who
—
(i) obstructs a person exercising a power to enter premises,
take samples or inspect and copy records,
(ii) fails to
comply with a requirement to provide information, make records
available or provide facilities, records, information or other
assistance, or
(iii) in purported compliance with such a
requirement furnishes false or misleading information,
is guilty of an offence (regulation 11);
(i)
provide a right of appeal in respect of a decision of the competent
authority concerning the approval of certain establishments taken
under Article 31 of Regulation (EC) No. 882/2004 (regulations 12
and 13);
(j) provide that an authorised officer of a
competent authority may take with him the staff of the competent
authority of another member State for the purpose of conducting an
administrative enquiry under Article 36 of Regulation (EC) No.
882/2004 (regulation 14);
(k) provide that when an
"enforcing officer", defined in regulation 15(2) thereof, enters
premises for the purpose of executing and enforcing official
controls he may take with him a Commission expert to enable that
expert to carry out functions under Article 45 of Regulation (EC)
No. 882/2004 (regulation 15);
(l) provide that a
person who enters premises under the powers referred to in
sub–paragraph (j) or (k) of this paragraph and discloses any
information obtained on the premises with regard to any trade secret
is guilty of an offence unless he does so in the performance of his
duty (regulation 16);
(m) specify which authorities
are responsible for executing and enforcing regulations 5(3), 9(8),
11 and 16 thereof (regulation 17);
(n) give powers of
entry to authorised officers of the authorities referred to in
sub–paragraph (m) of this paragraph (regulation
18);
(o) create the offence of obstructing an officer
acting in the execution of Part 2 thereof (regulation
19);
(p) provide penalties for offences under that Part
(regulation 20);
(q) provide a time limit for bringing
prosecutions for offences under that Part (regulation
21);
(r) make provision for the execution and enforcement
of Part 3 of these Regulations (regulations 23 and
24);
(s) provide that the Commissioners for Her Majesty's
Revenue and Customs are to carry out the functions given to customs
services under Article 24 of Regulation (EC) No. 882/2004
(regulation 25).
(t) make provision for the execution
and enforcement thereof to be deferred until a product reaches its
destination (regulation 26);
(u) in the light of
Article 11 of Regulation (EC) No. 178/2002 as read with Article 10
of Regulation (EC) No. 852/2004 (as described in paragraph 2 above)
prohibit the introduction into England of certain feed and food
unless specified conditions are met (regulation
27);
(v) provide for the checking of products that are
introduced into England (regulation 28);
(w) provide
that an enforcement authority, first, has the power to do anything
that a competent authority may do under Articles 18 to 21 and 24(3)
of Regulation (EC) No. 882/2004 and, second, is the competent
authority for the purposes of Article 22 of that Regulation
(regulation 29);
(x) provide for the service of
notices by an authorised officer of an enforcement authority when he
wishes to take certain measures or exercise certain powers under
Article 19 of Regulation (EC) No. 882/2004 (imports of feed and food
from third countries) (regulation 30);
(y) provide a
right of appeal in respect of the service of notices under
regulation 30 (regulations 31 and 32);
(z) enable the
Secretary of State or the Agency by written declaration to suspend,
or impose conditions on, the introduction into England of any
product from a third country where she or it learns or reasonably
suspects that any food or feed that has been or may be introduced
into England from that third country is likely to constitute a
serious risk to animal or public health (regulation
33);
(aa) provide for charges to be payable in relation
to controls carried out on consignments (regulation
34);
(bb) provide for the procurement and analysis of
samples of food for the purposes of the execution and enforcement of
"the Import Provisions", defined in regulation 22 thereof
(regulations 35 and 36);
(cc) provide powers of entry
for authorised officers of food authorities in relation to the
execution and enforcement of the Import Provisions (regulation
37);
(dd) create the offence of obstructing an officer
acting in the execution of the Import Provisions (regulation
38);
(ee) create offences consisting of contravening or
failing to comply with specified regulations and failing to comply
with a notice served under the Import Provisions and provide
penalties for offences under Part 3 thereof (regulation
39);
(ff) provide a time limit for bringing prosecutions
for offences under Part 3 thereof (regulation
40);
(gg) amend the General Food Regulations 2004 in so
far as they apply in relation to England, as described in paragraph
3 above (regulation 41);
(hh) provide that where the
commission of an offence thereunder is due to the act or default of
some other person that other person is guilty of the offence
(regulation 42);
(ii) provide that in proceedings for
an offence thereunder it is a defence for the accused to prove that
he took all reasonable precautions and exercised all due diligence
to avoid the commission of the offence (regulation
43);
(jj) provide that where an offence thereunder which
has been committed by a body corporate is proved to have been
committed with the consent or connivance of, or to be attributable
to any neglect on the part of, an officer of the body corporate or a
person purporting to act as such he as well as the body corporate is
deemed to be guilty of that offence and may be proceeded against and
punished accordingly (regulation 44);
(kk) provide
that where an offence thereunder which has been committed by a
Scottish partnership is proved to have been committed with the
consent or connivance of, or to be attributable to any neglect on
the part of, a partner he as well as the partnership is deemed to be
guilty of that offence and may be proceeded against and punished
accordingly (regulation 45);
(ll) provide for the
protection of officers acting in good faith (regulation
46);
(mm) provide for the service of documents
(regulation 47); and
(nn) provide for the revocation
of specified instruments to the extent specified (regulation
48).
6. A full Regulatory Impact
Assessment on the effect that these Regulations will have on the costs
of business has been prepared and placed in the Library of each House
of Parliament. Copies may be obtained from the Food Hygiene
Implementation Division of the Food Standards Agency, Aviation House,
125 Kingsway, London WC2B 6NH.
Notes:
[1] 1990 c.16; section 1(1) and (2)
(definition of "food") was substituted by S.I. 2004/2990; section
53(2) was amended by paragraph 19 of Schedule 16 to the Deregulation
and Contracting Out Act 1994 (1994 c. 40), Schedule 6 to the Food
Standards Act 1999 (1999 c. 28) and S.I. 2004/2990.back
[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) and paragraphs 12 and 21 of that Schedule amend
respectively sections 17(2) and 48 of the 1990 Act. Section 48 was
also amended by S.I. 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] 1972 c. 68.back
[4] S.I. 2003/2901.back
[5] S.I. 1972/1811, amended by S.I. 2002/794.back
[6] S.I. 1999/2027.back
[7] 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
[8] 1970 c. 40.back
[9] 1984 c. 22.back
[10] S.I. 2005/2059.back
[11] 1999 c. 28.back
[12] 1980 c. 43.back
[13] 1981 c. 22.back
[14] OJ No. L121, 8.5.2002, p.6.back
[15] S.I. 1990/2463, to which there are amendments
not relevant to these Regulations.back
[16] S.I. 2004/3279.back
[17] OJ No. L31, 1.2.2002, p.1.back
[18] OJ No. L245, 29.9.2003, p.4.back
[19] OJ No. L139, 30.4.2004, p.1. The revised text
of Regulation (EC) No. 852/2004 is now set out in a Corrigendum (OJ
No. L226, 25.6.2004, p.3).back
[20] OJ No. L139, 30.4.2004, p.55. The revised text
of Regulation (EC) No. 853/2004 is now set out in a Corrigendum (OJ
No. L226, 25.6.2004, p.22).back
[21] OJ No. L165, 30.4.2004, p.1. The revised text
of Regulation (EC) No. 882/2004 is now set out in a Corrigendum (OJ
No. L191, 28.5.2004, p.1).back
[22] OJ No. L157, 30.4.2004, p.33. The revised text
of Directive 2004/41/EC is now set out in a Corrigendum (OJ No. L195,
2.6.2004, p.12).back
[23] 1970 c. 40.back
[24] S.I. 1999/1663, amended by S.I. 2001/541, S.I.
2002/892, S.I. 2003/1296, S.I. 2003/1503, S.I. 2003/2912, S.I.
2004/1301, S.I. 2004/2146 and S.I. 2004/2688.back
[25] S.I. 1999/1872, amended by S.I. 2001/541, S.I.
2002/892, S.I. 2003/1026, S.I. 2003/1296 and S.I. 2005/557.back
[26] S.I. 1999/2325, amended by S.I. 2001/541, S.I.
2001/3389, S.I. 2002/892, S.I. 2003/1026, S.I. 2003/1296, S.I.
2003/1503, S.I. 2003/2912, S.I. 2004/1301 and S.I. 2004/2688.back
[27] OJ No. L265, 8.11.95, p.17.back
[28] OJ No. L234, 1.9.2001, p.55.back
[29] S.I. 1999/1871.back
[30] S.I. 2000/2481, amended by S.I. 2001/541, S.I.
2001/3389, S.I. 2002/892, S.I. 2003/1026, S.I. 2003/1503, S.I.
2003/2912, S.I. 2004/1301 and S.I. 2004/2688.back
[31] S.I. 2004/2334.back
[32] S.I. 2004/3254.back
[33] S.I. 2005/2059.back
[34] S.I. 1997/1729, amended by S.I. 2001/3590 and
S.I. 2004/147.back
[35] S.I. 1999/3483, amended by S.I. 2001/1113, S.I.
2001/2420, S.I. 2001/3834, S.I. 2002/1767, S.I. 2002/2723, 2003/661,
2003/2591, 2004/676, 2004/1393, 2004/2559, 2005/432 and 2005/1725.back
[36] OJ No. L208, 24.7.92, p.1.back
[37] OJ No. L236, 23.9.2003, p.346.back
[38] OJ No. L208, 24.7.92, p.9.back
[39] S.I. 2003/2821.back
[40] S.I. 2004/1604, amended by S.I. 2005/2003.back
[41] S.I. 2000/3047, amended by S.I. 2002/2315.back
[42] S.I. 1996/3124, amended by S.I. 1997/3023, S.I.
1998/994, S.I. 1999/683, S.I. 2000/225, S.I. 2000/656, S.I. 2000/790,
S.I. 2000/2215, S.I. 2001/1553, S.I. 2001/1640, S.I. 2001/3399, S.I.
2002/889, S.I. 2003/3003 and S.I. 2003/3177.back
[43] S.I. 2004/3388.back
[44] S.I. 1988/1647.back
ISBN 0 11 073368 1