The Contaminants in Food Regulations (Northern Ireland) 2006

Statutory Rules of Northern Ireland

2006 No. 256

FOOD

The Contaminants in Food Regulations (Northern Ireland) 2006

Made

8th June 2006

Coming into Operation

1st July 2006

The Department of Health, Social Services and Public Safety(1) makes the following Regulations in exercise of the powers conferred by Articles 15(1)(a), (e) and (f), 16(1) and (2), 25(1)(a), (2)(e) and (3), 26(3), 32(1) and (2)(b),(c) and (f), and 47(2) of the Food Safety (Northern Ireland) Order 1991(2).

In accordance with Article 47(3A) of the said Order, it has had regard to relevant advice given by the Food Standards Agency.

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(3), there has been open and transparent public consultation during the preparation and evaluation of these Regulations.

Citation and commencement

1.  These Regulations may be cited as the Contaminants in Food Regulations (Northern Ireland) 2006 and shall come into operation on 1st July 2006.

Interpretation

2.  (1)  In these Regulations —

“authorised lettuce” means lettuce of the kind specified in point 1.3 of section 1 of Annex I to the Commission Regulation, which complies with the conditions of the derogation under Article 3b.2 of that Regulation in relation to the United Kingdom;

“authorised officer” means any person, whether or not an officer of a district council, who is authorised by it in writing to act in matters arising under these Regulations;

“authorised spinach” means spinach of the kind specified in point 1.1 of section 1 of Annex I to the Commission Regulation, which complies with the conditions of the derogation under Article 3b.1 of that Regulation in relation to the United Kingdom;

“the Commission Regulation” means Commission Regulation (EC) No. 466/2001 setting maximum levels for certain contaminants in foodstuffs(4) as corrected by a corrigendum published on 30th November 2001(5), and as amended by Council Regulation (EC) No. 2375/2001(6), Commission Regulation (EC) No. 221/2002(7), Commission Regulation (EC) No. 257/2002(8), Commission Regulation (EC) No. 472/2002(9) as corrected by a corrigendum published on 23rd March 2002(10), Commission Regulation (EC) No. 563/2002(11) as corrected by a corrigendum published on 14th June 2002(12), Commission Regulation (EC) No. 1425/2003(13), Commission Regulation (EC) No. 2174/2003(14), Commission Regulation (EC) No. 242/2004(15), Commission Regulation (EC) No. 455/2004(16), Commission Regulation (EC) No. 655/2004(17), Commission Regulation (EC) No. 683/2004(18), Commission Regulation (EC) No. 684/2004(19), Commission Regulation (EC) No. 78/2005(20), Commission Regulation (EC) No. 123/2005(21), Commission Regulation (EC) No. 208/2005(22),Commission Regulation (EC) No. 856/2005(23) Commission Regulation (EC) No. 1822/2005(24),and Commission Regulation (EC) No. 199/2006(25);

“the Order” means the Food Safety (Northern Ireland) Order 1991;

(2) Any other expression used in these Regulations and in the Commission Regulation has the same meaning in these Regulations as it bears in the Commission Regulation.

Offences and penalties

3.  (1)  Subject to the transitional arrangements contained in the Community provisions specified in paragraph (2), a person is guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale if —

(a)he places on the market any food (other than authorised lettuce or authorised spinach) which is covered by, but fails to meet the requirements of, Article 1.1, 2.1, 2.2 or 4.1, of the Commission Regulation, as read with Articles 1.2 and 4.3 of that Regulation; or

(b)he contravenes Article 2.3, 4.2, or 4a of the Commission Regulation.

(2) The Community provisions mentioned in paragraph (1) are —

(a)Article 7 of the Commission Regulation;

(b)Article 2 of Commission Regulation (EC) No. 655/2004 amending Regulation (EC) No. 466/2001 as regards nitrate in foods for infants and young children;

(c)Article 3 of Commission Regulation (EC) No. 683/2004 amending Regulation (EC) No. 466/2001 as regards aflatoxins and ochratoxin A in foods for infants and young children;

(d)Article 2 of Commission Regulation (EC) No. 123/2005 amending Regulation (EC) No. 466/2001 as regards ochratoxin A;

(e)Article 2 of Commission Regulation (EC) No. 208/2005 amending Regulation (EC) No. 466/2001 as regards polycyclic aromatic hydrocarbons;

(f)Article 2 of Commission Regulation (EC) No. 856/2005 amending Regulation (EC) No. 466/2001 as regards Fusarium toxins;

(g)Article 2 of Commission Regulation (EC) No. 199/2006 amending Regulation (EC) No. 466/2001 setting maximum levels for certain contaminants in foodstuffs as regards dioxins and dioxin-like PCBs.

Enforcement

4.  It shall be the duty of each district council to execute and enforce these Regulations within its district.

Application of various Articles of the Food Safety (Northern Ireland) Order 1991

5.  (1)  The following provisions of the Order shall apply for the purposes of these Regulations with the modification that any reference in those provisions to the Order or Part thereof shall be construed as a reference to these Regulations —

(a)Article 4 (presumptions that food intended for human consumption);

(b)Article 19 (offences due to fault of another person);

(c)Article 20 (defence of due diligence), as it applies for the purpose of Article 13 or 14; ;

(d)Article 30(8) (which relates to documentary evidence);

(e)Article 34(1) (obstruction etc. of officers);

(f)Article 34(2), with the modification that the reference to “any such requirement as is mentioned in paragraph (1)(b)” shall be deemed to be a reference to any such requirement as is mentioned in Article 34(1)(b) as applied by sub–paragraph (e);

(g)Article 36(1) (punishment of offences), in so far as it relates to offences under Article 34(1) as applied by sub–paragraph (e);

(h)Article 36(2) and (3), in so far as it relates to offences under Article 34(2) as applied by sub–paragraph (f);

(2) Subject to paragraph (3), Article 8 of the Order (inspection and seizure of suspected food) shall apply for the purposes of these Regulations as if it read as follows —

8.  (1)  An authorised officer may at all reasonable times inspect any food intended for human consumption which has been placed on the market; and paragraphs (2) to (7) shall apply where, on such an inspection, it appears to the authorised officer that the placing on the market of any food contravenes regulation 3(1)(a) of the Contaminants in Food Regulations (Northern Ireland) 2006 (hereafter referred to as “the Regulations”).

(2) The authorised officer may either —

(a)give notice to the person in charge of the food that, until the notice is withdrawn, the food or any specified portion of it —

(i)is not to be used for human consumption, and

(ii)either is not to be removed or is to be removed to a place at which there are facilities to carry out the sampling in the manner required by Article 1.3 of the Commission Regulation; or

(b)seize the food and remove it in order to have it dealt with by a justice of the peace.

(3) Where the authorised officer exercises the power conferred by paragraph (2)(a), he shall, as soon as is reasonably practicable and in any event within 21 days, determine whether or not he is satisfied that the food complies with the requirements of regulation 3(1)(a) of the Regulations, as appropriate and —

(a)if he is so satisfied, shall forthwith withdraw the notice;

(b)if he is not so satisfied, shall seize the food and remove it in order to have it dealt with by a justice of the peace.

(4) Where an authorised officer exercises the powers conferred by paragraph (2)(b) or (3)(b), he shall inform the person in charge of the food of his intention to have it dealt with by a justice of the peace and —

(a)any person who under regulation 3(1)(a) of the Regulations might be liable to a prosecution in respect of the food shall, if he attends before the justice of the peace by whom the food falls to be dealt with, be entitled to be heard and to call witnesses; and

(b)that justice of the peace may, but need not, be a member of the court before which any person is proceeded against for an offence consisting of a contravention of regulation 3(1)(a) of the Regulations in relation to that food.

(5) If it appears to a justice of the peace, on the basis of such evidence as he considers appropriate in the circumstances, that any food falling to be dealt with by him under this Article fails to comply with the requirements of regulation 3(1)(a) of the Regulations he shall condemn the food and order —

(a)the food to be destroyed or to be so disposed of as to prevent it from being used for human consumption; and

(b)any expenses reasonably incurred in connection with the destruction or disposal to be defrayed by the owner of the food.

(6) If a notice under paragraph (2)(a) is withdrawn, or the justice of the peace by whom any food falls to be dealt with under this Article refuses to condemn it, the district council shall compensate the owner of the food for any depreciation in its value resulting from the action taken by the authorised officer.

(7) Any disputed question as to the right to or the amount of any compensation payable under paragraph (6) shall be determined by a single arbitrator appointed, failing agreement between the parties, by the Department.

(8) Any person who knowingly contravenes the requirements of a notice under paragraph 2(a) shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale..

(3) The expressions “authorised officer”, “placing on the market”, and “the Commission Regulation” which are used in Article 8 of the Order so far as it applies for the purposes of these Regulations by virtue of paragraph (2), shall, for those purposes, bear the meanings that those expressions respectively bear in these Regulations.

Revocations

6.  The Contaminants in Food Regulations (Northern Ireland) 2005(26) are revoked.

Sealed with the official seal of the Department of Health, Social Services and Public Safety on 8th June 2006

L.S.

Dr Andrew McCormick

A senior officer of the

Department of Health, Social Services and Public Safety

Explanatory Note

(This note is not part of the Regulations)

1.  These Regulations evoke and re-enact with changes the Contaminants in Food Regulations (Northern Ireland) 2005 (S.R. 2005 No.538)(“the 2005 Regulations”). They make provision for the execution and enforcement of Commission Regulation (EC) No. 466/2001 setting maximum levels for contaminants in foodstuffs (OJ No. L77, 16.3.2001, p.1, as corrected and amended) (“the Commission Regulation”). Since the 2005 Regulations were made, the Commission Regulation has been amended so as to —

(a)introduce maximum permitted levels and other controls relating to certain Fusarium toxins (Commission Regulation (EC) No 856/2005, OJ No L143, 7.6.2005, p.3); and

(b)introduce new or amended controls relating to dioxins and the sum of dioxins and dioxin-like PCBs (Commission Regulation (EC) No 199/2006, OJ No L32, 4.2.2006, p.34).

2.  The Regulations —

(a)provide that it is an offence, (except in certain cases relating to food placed on the market before a date given in specified Community legislation) —

(i)to place on the market certain foods if they contain contaminants of any kind specified in the Commission Regulation at levels exceeding those specified (subject to a derogation applicable to certain types of lettuce and to fresh spinach),

(ii)to use food containing such contaminants at such levels as ingredients in the production of certain foods,

(iii)to mix foods that do not comply with the maximum levels referred to above with foods which do comply,

(iv)to mix foods to which the Commission Regulation relates and which are intended for direct consumption with foods to which the Commission Regulation relates and which are intended to be sorted or otherwise treated prior to consumption, or

(v)to detoxify by chemical treatment food not complying with the limits specified in the Commission Regulation (regulation 3);

(b)specify the enforcement authorities (regulation 4);

(c)provide for the application of specified provisions of the Food Safety (Northern Ireland) Order 1991 for the purposes of these Regulations (regulation 5);

(d)make a consequential amendment to the Food Safety (Sampling and Qualifications) Regulations (Northern Ireland) 1991 (regulation 6), the effect being to disapply the sampling and analysis provisions of those Regulations only to the extent that those matters are regulated by the Community instruments mentioned in paragraph 3(a) to (f) below.

3.  The Commission Regulation specifies the Community methods of sampling and analysis that are required to be used for the official control of levels of the substances covered by it. Those methods are set out in —

(a)Commission Directive 2001/22/EC laying down the sampling methods and the methods of analysis for the official control of the levels of lead, cadmium, mercury and 3-MCPD in foodstuffs (OJ No. L77, 16.3.2001, p.14), as corrected by Commission Decision 2001/873/EC (OJ No. L325, 8.12.2001, p.34), and as amended by Commission Directive 2005/4/EC (OJ No. L19, 21.1.2005, p.50);

(b)Commission Directive 2002/63/EC establishing Community methods of sampling for the official control of pesticide residues in and on products of plant and animal origin (OJ No. L187, 16.7.2002, p.30);

(c)Commission Directive 2002/69/EC laying down the sampling methods and the methods of analysis for the official control of dioxins and the determination of dioxin-like PCBs in foodstuffs (OJ No. L209, 6.8.2002, p.5), as corrected by a corrigendum published on the 20th September 2002 (OJ No. L252, 20.9.2002, p.40), and as amended by Commission Directive 2004/44/EC (OJ No. L113, 20.4.2004, p.17);

(d)Commission Directive 2004/16/EC laying down the sampling methods and the methods of analysis for the official control of the levels of tin in canned foods (OJ No. L42, 13.2.2004, p.16);

(e)Commission Directive 2005/10/EC laying down the sampling methods and the methods of analysis for the official control of the levels of benzo(a)pyrene in foodstuffs (OJ No. L34, 8.2.2005, p.15), and

(f)Commission Regulation (EC) No. 401/2006 laying down the methods of sampling and analysis for the official control of the levels of mycotoxins in foodstuffs (OJ No. L 70, 9.3.2006, p.12). This Regulation repeals the sampling and analysis Directives 98/53/EC, 2002/26/EC, 2003/78/EC and 2005/38/EC, and stipulates that any reference to those Directives in the Commission Regulation is to be read as a reference to Commission Regulation (EC) 401/2006.

(1)

Formerly the Department of Health and Social Services; see S.I. 1999/283 (N.I.1) Article 3

(2)

S.I. 1991/762 (N.I.7) as amended by S.I. 1996/1663 (N.I.12), paragraphs 26 to 42 of Schedule 5 and Schedule 6 to the Food Standards Act 1999 c. 28 and S.R.2004 Nos. 482 and 505

(3)

OJ No. L31, 1.2.2002, p.1. That Regulation was last amended by Regulation (EC) No. 1642/2003 of the European Parliament and of the Council (OJ No. L245, 29.9.2003, p.4)

(4)

OJ No. L77, 16.3.2001, p.1

(5)

OJ No. L313, 30.11.2001, p.60

(6)

OJ No. L321, 6.12.2001, p.1

(7)

OJ No. L37, 7.2.2002, p.4

(8)

OJ No. L41, 13.2.2002, p.12

(9)

OJ No. L75, 16.3.2002, p.18

(10)

OJ No. L80, 23.3.2002, p.42

(11)

OJ No. L86, 3.4.2002, p.5

(12)

OJ No. L155, 14.6.2002, p.63

(13)

OJ No. L203, 12.8.2003, p.1

(14)

OJ No. L326, 13.12.2003, p.12

(15)

OJ No. L42, 13.2.2004, p.3

(16)

OJ No. L74, 12.3.2004, p.11

(17)

OJ No. L104, 8.4.2004, p.48

(18)

OJ No. L106, 15.4.2004, p.3

(19)

OJ No. L106, 15.4.2004, p. 6

(20)

OJ No. L16, 20.1.2005, p.43

(21)

OJ No. L25, 28.1.2005, p.3

(22)

OJ No. L34, 8.2.2005, p.3

(23)

OJ No. L143, 7.6.2005, p.3

(24)

OJ No. L293, 9.11.2005, p.11

(25)

OJ No. L32, 4.2.2006, p 34