The Act
4.The Act is structured in the following Parts:
Part 1 establishes Food Standards Scotland (FSS) as a body corporate and sets out its core objectives to improve and protect public health, and other interests of consumers, in Scotland in respect of food. Part 1 also sets out key aspects of the relationship between the Scottish Ministers and FSS. The Scottish Ministers may request advice and assistance from FSS in relation to particular matters and may give FSS directions in certain circumstances.
Part 2 contains specific provisions in relation to food and feed law. These include provision for a food hygiene information scheme, to make regulations on animal feeding stuffs, an offence of failing to report suspicion of food not being compliant with food information law and powers for authorised officers to detain or seize and remove such food and for a sheriff to determine the treatment of such food.
Part 3 provides for administrative sanctions for non-compliance with food law. These sanctions will be compliance notices and fixed penalties.
Part 4 sets out interpretation provisions for the Act.
Part 5 sets out general provisions on coming into force and modification of enactments.
Part 1: Food Standards Scotland
Section 1: Establishment
5.This section establishes Food Standards Scotland (FSS) as a public body. Outwith the scope of this Act, a section 104 order made under the Scotland Act 1998 will designate FSS as a non-ministerial office of the Scottish Administration. That will be the basis of its operational autonomy from the Scottish Ministers. FSS employees will be civil servants.
Section 2: Objectives
6.Section 2 gives FSS’ three objectives: to protect the public from risks arising from consuming food, to improve the diet of the public and to protect consumers’ other interests with regards to food. These objectives are deliberately wide in scope. This gives FSS flexibility to be involved in a very broad range of policies, too numerous to try to define. For example FSS, under these objectives could contribute to policies on animal health or to policies which would be marginal to food itself such as food sustainability or food poverty. The general nature of the objectives gives FSS the flexibility and authority to act in relation to a wide range of food matters.
Section 3: General functions
7.The general functions of FSS are designed to focus effort and expertise on delivering the objectives, above. The functions are set out in detail, but in summary they are to develop (and assist public bodies or office-holders to develop) policies, provide advice and assistance to public bodies or office-holders, to keep the public and users of animal feeding stuffs informed about significant matters which concern them about food and feeding stuffs and to monitor the performance of, and to promote best practice by, the authorities who enforce food law. The reference to public bodies and office-holders covers any such body or office-holder; it is not limited to public bodies and office-holders in Scotland e.g. it could include, and therefore enable FSS to work with, UK or European public bodies and office-holders. As with the objectives, these functions are deliberately wide so as not to be overly restrictive. It is intended that FSS as the independent body with policy responsibility in Scotland for food matters is seen to be able to operate without overly prescriptive boundaries.
8.FSS must comply with requests from the Scottish Ministers in respect of its general functions (other than the function of monitoring enforcement authorities) where reasonably practicable. This is designed to provide public assurance both on the operational independence of FSS and that the Scottish Ministers can still influence FSS transparently, in the public interest. In short, this provision allows flexibility in the relationship between the Scottish Government and FSS – allowing them to work together across food policy areas in a way that does not put the independence of FSS at risk.
Section 4: Governance and accountability
9.This provision requires FSS to work in a proportionate, transparent and accountable manner. This is consistent with its other general duties of sustainable growth, efficiency, effectiveness and economy from the Public Services Reform (Scotland) Act 2010(1).
Section 5: Statement on performance of functions
10.FSS must develop a statement setting out how it will carry out its functions in order to meet its objectives and operate in accordance with section 4. This needs to be approved by the Scottish Ministers (with or without modifications) and laid before the Scottish Parliament. Having a published statement such as this will ensure transparency and public accountability, as it will be clear how FSS is aiming to perform its functions and how it intends to demonstrate that transparently. FSS must review the statement from time to time and consequently may submit a revised statement to the Scottish Ministers for approval and laying before the Scottish Parliament.
Section 6: Number and appointment of members
11.This section sets out the number of members FSS can have – between 4 and 8 - (which includes a chair) and lists certain office-holders who are automatically excluded from being a member. Members are appointed by the Scottish Ministers for such a period and under such terms and conditions as the Scottish Ministers may determine. Members will normally be referred to collectively as “the board”. The Scottish Ministers may assign one of the members to deputise for the chair which includes giving that member the function of chairing the board during any period where a chair has not been appointed. Subsection (3) specifies that during a recruitment process to appoint members, equal opportunity requirements must be followed.
Section 7: Early ending of membership
12.This section sets out situations when a person’s membership of FSS will end. This is to prevent a conflict of interest and to maintain FSS’ independence. For example, membership will end if the person becomes a member of the Scottish Parliament. It is also to enable the Scottish Ministers to end a person’s membership in the circumstances set out in subsection (2).
Section 12: Committees
13.Section 12 allows FSS to create committees as and when required and to regulate their procedures. These committees could be set up to address specific issues on a case-by-case basis. This approach is more flexible than having a set of statutory committees in place permanently when there was no need for them for most of the time.
Section 13: Validity of things done
14.This section makes clear that where certain circumstances arise, such as a vacancy for a member or the ending of membership for a member, would not affect the validity of things done by FSS.
Section 15: Annual and other reports
15.FSS must publish an annual report on its functions and performance and lay it before the Scottish Parliament who it will be accountable to. As an independent body not accountable to the Scottish Ministers, this section provides for transparency and public accountability on its work and performance.
Section 16: General powers
16.Section 16 gives FSS a general power to do anything it deems necessary in order to carry out its functions. This provision gives FSS operational independence and wide-ranging autonomy to take action on things like training and direct stakeholder engagement for example. This freedom is subject to two exceptions: moving office premises without approval of the Scottish Ministers and charging for services at a profit. These restrictions will ensure FSS acts in accordance with wider Scottish Administration principles.
Section 17: Application of legislation relating to public bodies
17.Section 17 inserts reference to FSS into various pieces of primary legislation that confer duties and responsibilities on listed public bodies in Scotland. For example, FSS will have to adhere to the Freedom of Information (Scotland) Act 2002. These individual enactments confer particular duties on FSS, and these are commonly applied to public bodies in Scotland.
Section 18: Serious failure
18.This section provides the Scottish Ministers authority to step-in where there has been a serious failure by FSS to meet its functions. Subsection (2) allows the Scottish Ministers to give FSS directions in order to remedy the failure. If FSS fails to comply with a direction, the Scottish Ministers can end the membership of all of FSS’ members and carry out their functions until replacements are appointed.
Section 19: Duty to acquire, compile and keep under review relevant information
19.In order for FSS to carry out its functions – developing policy and giving advice – and come to sound decisions, it has a duty to keep up-to-date with, and review, developments in food matters and animal feeding stuffs matters. It can also carry out or commission research on food matters and on animal feeding stuffs. The meaning of a “food matter “and an “animal feeding stuff matter” is set out in Part 4 of the Act.
Section 20: Observations with a view to obtaining information
20.To assist FSS in carrying out its duty to compile and review information, section 20 allows it to carry out observations, for example, through visits and inspections either routine or unannounced, of businesses in any part of the supply chain in order gain information about food or animal feeding stuffs. This provision extends to all aspects of food production (e.g. farms and production plants), food supply (e.g. wholesale or retail) or food consumption (e.g. food outlets and restaurants).
Section 21: Powers for persons carrying out observations
21.Section 21 confers powers on a person authorised by FSS to carry out observations. An authorised person can be a FSS employee or any other individual, for example, a local authority employee. The powers are to enter premises, take samples, inspect and copy documents and require the person under observation to provide documents and information. These powers can only be used if it is necessary to carry out an observation. Documents can include the health records of individuals held by the business to assess an individual’s suitability for working in the production or supply of food. For example, in order to prevent a public health risk, employers may need to obtain medical certificates about their employees’ suitability to carry out certain duties with food. This section does not allow FSS access to the personal health records of an individual.
Section 22: Offences in relation to section 21
22.Section 22 makes it an offence for an authorised person carrying out an observation to disclose or use information gathered which relates to a trade secret, outwith the course of their duties. This section does not prohibit FSS from using its own powers under section 31 to publish or disclose information. Instead, it is intended to apply to a situation where an authorised person gives a trade secret they have gathered during an observation to a rival business. Subsection (3) makes it an offence for a person to obstruct an authorised person from carrying out their duty to gather information as part of an observation.
Section 23: Setting performance standards
23.FSS may set standards of performance for enforcement authorities (as defined in section 58), which would include FSS itself and local authorities’ trading standards and environmental health departments, to enforce “food legislation” (as defined in section 57). Who the enforcement authorities are for particular pieces of food legislation is designated in food legislation (mostly in regulations made by the Scottish Ministers). This provision gives FSS the role of setting the performance standards for the enforcement authorities in respect of all food legislation in Scotland.
Section 24: Reporting own enforcement activities
24.FSS must include information about enforcement action it has taken in its annual report. As an autonomous office in the Scottish Administration, the intention of this provision is for FSS to be open about its own activities.
Section 25: Reporting on enforcement action by others
25.Section 25 allows FSS to make a report on any enforcement authority’s performance and provide it with guidance on how to make improvements and meet any standards set out by FSS. This open and transparent system is designed to provide public assurance on the performance of authorities.
Section 26: Power to request information in relation to enforcement action
26.This section gives FSS the power to require information from enforcement authorities and others to help it make an assessment of the performance of enforcement authorities.
Section 27: Offences in relation to section 26
27.This provision makes it an offence to fail to comply with the requirement to provide information to FSS under section 26. It also makes it an offence to provide or knowingly or recklessly provide false or misleading information. Having an offence of failing to provide information will help ensure FSS has access to all information it needs to be able to assess the performance of enforcement authorities.
Section 28: Powers for persons monitoring enforcement action
28.Section 28 provides FSS the power to allow an authorised person to enter premises (other than a dwelling house), take samples and copy documents in order to monitor enforcement action. It includes a power to require any person present on the premises to provide assistance to an authorised officer which is reasonably requested. The detail of these powers is set out in the section, and the intention is to help ensure FSS has access to all the information it needs to be able to assess the performance of enforcement authorities. An authorisation issued by FSS must be made in writing and it may contain such limitations or conditions as FSS determine (e.g. hygienic precautions to be taken by an authorised officer in exercising powers under the authorisation).
Section 29: Offences in relation to section 28
29.Section 29 makes it an offence for an authorised person monitoring enforcement action to disclose information or use information gathered outwith the course of that person’s duties. This section does not prohibit FSS from using its own powers under section 31 to publish or disclose information. Instead, it is intended to apply to a situation where an authorised person gives a trade secret they have gathered during monitoring to a rival business. Subsection (3) makes it an offence for a person to obstruct an authorised person from carrying out that person’s powers under section 28 to monitor enforcement action. This subsection will help ensure FSS has access to all information it needs to be able to assess the performance of enforcement authorities.
Section 30: Power to issue guidance on control of food-borne diseases
30.FSS may issue guidance to the Scottish Ministers and Scottish public bodies about their general responsibilities for the control and management of food-borne diseases. Any such guidance must be published. This will ensure transparency and public accountability for measures that should be taken to combat food-borne disease. The Scottish Ministers and Scottish public bodies have to have regard to this guidance as required. The section provides that the power to issue guidance includes power to issue revised guidance.
Section 31: Publication and disclosure of advice and information
31.Section 31 gives FSS freedom to publish information as it sees fit. This power applies to information gathered from observations and monitoring (or obtained from any other source). The intention is for this to safeguard the autonomy of FSS. This power could be used to publish advice and information unrestrained by the Scottish Ministers or other stakeholders, a right to publish or disclose information. This power is subject to that publication or disclosure not being prohibited by another law, not being in contempt of court and not being outweighed by considerations of confidentiality attaching to it.
Section 32: Certain functions of Food Standards Agency ceasing to be exercisable
32.This section provides that all the functions that the Food Standards Agency exercises in or as regards Scotland which are conferred by the 1999 Act cease to be exercisable in Scotland to the extent made possible by the legislative competence of the Scottish Parliament. Equivalent functions will now be conferred on FSS through this Act.
Part 2: Food and Feeding Stuffs
Section 33: Food information
33.Section 33 inserts 4 new provisions into the 1990 Act. Section 15A defines “food information” as having the same meaning as the European definition contained in EU Regulation 1169/2011 on the provision of food information to consumers, and provides the Scottish Ministers with a power to define “food information law” by regulations. Giving this power to the Scottish Ministers builds in flexibility to be able to redefine food information law as and when new enactments are made in Scotland which relate to food information e.g. where the Scottish Ministers make regulations in future to give effect to requirements in EU law on food information.
34.Section 15B creates a new power for authorised officers to issue a notice to detain food which contravenes food information law – for example, where the description on the label does not match the content. This applies where it appears to an authorised officer (in the course of carrying out an inspection or otherwise) that food information law is being, or has been, contravened in relation to food intended for human consumption which is placed on the market within the meaning of EC Regulation 178/2002. A definition of “placing on the market” is contained in Article 3 of that Regulation. A notice can be given to a person in charge of the food or the owner of the food (if different and if known). It will be an offence for anyone to contravene a detention notice. The notice may require the food not to be removed from where it is or that it is not to be removed from a place specified in the notice. The officer must determine as soon as reasonably practicable and in any event within 21 days of the notice being issued whether or not food information law has been contravened, after which time the notice must be lifted. The officer may seize the food at any time and refer the case to the sheriff to determine if food information law has been contravened.
35.Where food is seized the authorised officer may copy or take away food information related to the food (including information held in electronic form). An authorised officer must inform the person in charge of the food of the officer’s intention to have the matter dealt with by the sheriff; the owner of the food (if different) must also be informed unless, after making reasonably inquiries, it is not possible to identify the owner. Anyone who might be prosecuted for breaching food information law in relation to the seized food is entitled to be heard and call witnesses if that person attends before the sheriff. If food information law has been breached, the sheriff has the discretion to have the food destroyed or disposed of or to require the information to be corrected so the food can be distributed for consumption; and the sheriff must require the owner of the food to meet any expenses reasonably incurred in connection with any disposal etc. of the food.
36.Where a detention notice is withdrawn by an authorised officer or where a sheriff refuses to make an order about the seized food (or any related food information), the food authority must pay the food owner compensation. The term “food authority” has the same meaning it does in section 5(2) of the 1990 Act and will usually be local authorities. Any dispute about the amount of compensation is to be determined by arbitration in accordance with the Arbitration (Scotland) Act 2010.
37.These arrangements are modelled on existing arrangements for food which is believed to contravene food safety requirements, which are contained in section 9 of the 1990 Act. This section will help guard against food which is mislabelled entering the food chain, as happened in the horse meat food fraud incidents in 2013.
38.Section 15C inserts a new duty on food business operators to inform FSS where food information law is or has been contravened, i.e. where a food business operator is in charge of any food intended for human consumption and that food has been placed on the market. A person who fails in this duty is guilty of an offence, and this is a new offence. “Food business operator” is to be construed in accordance with Article 3 of EC Regulation 178/2002.
39.Section 15D sets out a duty on food business operators who have informed FSS about contraventions of food information law to then provide such relevant information FSS reasonably requests. Failing to do so will be an offence.
40.In sections 15A to 15D reference to “food” means food as defined in section 53 of the Act by virtue of the amendments made to the 1990 Act by paragraph 2(2) of the schedule to the Act.
Section 34: Food hygiene information scheme
41.This section inserts provisions into section 16(1), and Schedule 1 to, the 1990 Act which allows the Scottish Ministers to establish by regulations a food hygiene information scheme. Section 16 (food safety and consumer protection) is the primary regulation-making power contained in the 1990 Act and is relied on to make many regulations in food law in Scotland, including on food hygiene. The new provisions inserted into Schedule 1 (provisions of regulations made under section 16(1)) elaborate on what the power to establish the scheme in section 16(1) can, in particular, be used to do. The intent is to make mandatory a food hygiene information scheme based on an existing Scottish voluntary scheme. The aim of the scheme is to improve hygiene standards and therefore make food safer for the consumer. The references to “food” in the amendments made here to the 1990 Act mean food as defined in section 53 of the Act by virtue of the amendments made to the 1990 Act by paragraph 2(2) of the schedule to the Act.
Section 35: Regulation of animal feeding stuffs
42.This section allows the Scottish Ministers to make regulations in relation to animal feeding stuffs. This is a general power which the Scottish Government anticipates would be used only if existing powers (largely contained under section 2(2) of the European Communities Act 1972) could not be relied on to make regulations on animal feeding stuffs. The section also limits the provision which may be made for punishment of offences contained in such an order.
43.A similar power is currently available in the 1999 Act, and this provision retains this as a fall-back power. The Scottish Ministers must consult widely and take advice from FSS before making any such order.
Part 3: Administrative Sanctions
Section 36: Fixed penalty notices
44.This section provides for fixed penalty notices for relevant offences, as an opportunity for the person who is believed to have committed the offence to discharge liability by paying a specified sum of money. The Scottish Ministers, by regulations, will specify the sum of money to be paid as a penalty for the fixed penalty notice. The sum of money which the Scottish Minsters can specify for a fixed penalty notice (or different sums in respect of notices for different relevant offences) cannot exceed level 4 on the standard scale (currently £2,500). Setting this by regulation allows for the sum to be changed over time in line with the cost of living and inflation without having to amend primary legislation.
45.These fixed penalty notices can be issued by authorised officers to someone who they believe has breached a relevant offence. The standard of proof to be used to satisfy authorised officers that a relevant offence has been committed before they can issue a fixed penalty notice – i.e. beyond reasonable doubt or on the balance of probability etc. – is also to be set by regulations. This allows for changes to be made to the standard to reflect changing circumstances without having to amend primary legislation. Under section 49 of the Act, the Scottish Ministers can also make supplementary, incidental or consequential provisions to the fixed penalty scheme by regulations. The definition of “relevant offence” in section 52 contains a power which enables the Scottish Ministers to specify which offences in food legislation are to be relevant offences.
46.Setting sums of money payable, the standard and other aspects of the sanctions regime by regulations gives flexibility. One of the main reasons for building in flexibility is to align the regime to guidance issued by the Lord Advocate from time to time. Under section 51 of this Act the Lord Advocate may issue guidance to enforcement authorities about the exercise of fixed penalty notices. Enforcement authorities must comply with that guidance.
Section 37: Content and form of fixed penalty notice
47.This section describes the information which must be included in a fixed penalty notice, and gives the Scottish Ministers power to make regulations to set the period of time within which payment is to be made, and to make any further provisions about the form and content of the notice by regulations.
Section 38: Effect of fixed penalty notice on criminal proceedings
48.Criminal proceedings for a relevant offence cannot be initiated if a fixed penalty notice has been issued and is still in force. If the person to whom the notice is issued makes payment in accordance with the notice then that person may not be convicted of a relevant offence in respect of the relevant act or omission.
Section 41: Income from fixed penalties to be paid to the Scottish Ministers
49.This section states that sums received by enforcement authorities for payment of fixed penalty notices must be paid over to the Scottish Ministers. This will ensure that enforcement authorities are not seen to be using fixed penalty notices to pay for services they provide.
Section 42: Compliance notices
50.This section enables authorised officers of enforcement authorities to issue compliance notices in relation to a relevant offence. The notice will stipulate steps that need to be taken to rectify the offence.
51.The definition of “relevant offence” in section 52 contains a power which enables the Scottish Ministers to specify which offences in food legislation are to be relevant offences. As with fixed penalty notices, the Scottish Ministers will by regulation set what the specified standard of proof will be for a relevant offence – i.e. beyond reasonable doubt or on the balance of probability etc. In practice, a compliance notice could be issued for minor offences where either a fixed penalty notice or a report to the Procurator Fiscal Service would be disproportionate to the offence.
52.Under section 49 of the Act, the Scottish Ministers can also make supplementary, incidental or consequential provisions to the compliance notice scheme by regulations.
53.Setting the standard and other aspects of the sanctions regime by regulations gives flexibility. One of the main reasons for building in flexibility is to align the regime to guidance issued by the Lord Advocate from time to time. Under section 51 of this Act the Lord Advocate may issue guidance to enforcement authorities about the exercise of compliance notices. Enforcement authorities must comply with that guidance.
Section 43: Content and form of compliance notice
54.This section describes what information needs to be contained in a compliance notice, including details on a right of appeal and the consequences for failure to comply with the notice. Scottish Ministers have a power to make any further provisions about the form and content of the notice by regulations.
Section 44: Failure to comply with a compliance notice
55.It is an offence to fail to comply with a compliance notice and within the compliance period. The penalty on summary conviction is a fine not exceeding level 5 (£5,000) on the standard scale.
Section 45: Effect of compliance notice on criminal proceedings
56.Criminal proceedings for the relevant offence cannot be initiated, and if the person on whom the notice is served complies with the notice, then that person may not be convicted in respect of the relevant act or omission, if a compliance notice has been issued and is still in force.
Section 49: Power to make supplementary etc. provision
57.This section gives the Scottish Ministers power to make supplementary, incidental or consequential provision for the administrative sanctions regime, by regulations. This covers both fixed penalty and compliance notices as well as how enforcement authorities carry out their functions under Part 3 of the Act. This is a general power, but the section gives particular reference to regulations for facilitating, prohibiting or restricting the use of sanctions where another sanction has already been imposed or issued for the same act or omission. These sanctions could be fixed penalty notices, compliance notices or another sanction.
58.The section also refers to regulations providing for early payment discounts in relation to fixed penalty notices. The section also provides for regulations being made to modify certain provisions of the 1990 Act. These include modifying provisions on offences and defences, on powers of entry and powers to issue codes of practice. This section in particular also provides for the effect of fixed penalty notices and compliance notices on criminal proceedings.
Section 51: Lord Advocate’s guidance
59.This section gives the Lord Advocate, as head of the Crown Office and Procurator Fiscal Service, the right to issue guidance to enforcement authorities about how they exercise their functions with regards to fixed penalty notices and compliance notices. The content of the guidance will be a matter for the Lord Advocate, but it may, for example, set conditions for certain offences to be treated administratively. Enforcement authorities must comply with this guidance. The section also requires the Lord Advocate to publish such guidance, unless the Lord Advocate considers that publishing it would prejudice those activities specified in subsection (3).
Section 52: Interpretation of Part 3
60.Part 3 introduces administrative sanctions; this section describes the key terms used. This section includes a power to make regulations to specify what “relevant offences” are in respect of fixed penalty and compliance notices. Determining what constitutes a relevant offence by regulation rather than on the face of the Act allows greater flexibility to amend the list of offences over time and following further consultation. This means not having to amend primary legislation if another type of offence is identified or where particular offences are to be treated differently, as may be the case following Lord Advocate’s guidance being issued from time to time under section 51 of the Act.
Part 4: Interpretation
61.Part 4 sets out interpretation provisions, definitions and meanings of key terms used in the Act.
Section 53: Meanings of “food” and “animal feeding stuffs”
62.This section defines the meanings of “food” and “animal feeding stuffs” in a way which aligns the meanings in this Act with the meanings used in European legislation and in the Scotland Act 1998.
Section 55: Meaning of “other interests of consumers in relation to food”
63.Section 55 makes it clear that the term “other interests of consumers in relation to food” which is found in section 2 regarding FSS’ functions, includes the labelling and advertisement of food.
Part 5: Final Provisions
Section 59: Modification of enactments
64.Section 59 introduces the schedule which makes various amendments to Acts including the 1990 Act and the 1999 Act.
Section 60: Subordinate legislation
65.The Scottish Ministers are given powers under this Act to make regulations and orders. Section 60(2) lists which of these will be subject to the affirmative procedure. Section 60(3) provides for all other regulations and orders under the Act are to be made by the negative procedure. The powers inserted into the 1990 Act by sections 33 and 34 of the Act are also subject to negative procedure. Those subject to affirmative procedure must get approval from the Scottish Parliament before becoming law and those subject to negative procedure mean they will become law when they are made unless there is an objection from the Scottish Parliament.
Section 32 of the PSR Act 2010, Public functions: duty to provide information on exercise of functions
