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The Food (Jelly Mini-Cups) (Emergency Control) Regulations (Northern Ireland) 2009

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Statutory Rules of Northern Ireland

2009 No. 417

Food

The Food (Jelly Mini-Cups) (Emergency Control) Regulations (Northern Ireland) 2009

Made

11th December 2009

Coming into operation

20th January 2010

The Department of Health, Social Services and Public Safety(1) makes the following Regulations in exercise of the powers conferred on it by section 2(2) of the European Communities Act 1972(2).

The Department of Health, Social Services and Public Safety, has been designated for the purposes of section 2(2) of the European Communities Act 1972 in relation to measures relating to food (including drink)(3).

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(4) there has been open and transparent public consultation during the preparation and evaluation of the following Regulations.

Citation and commencement

1.  These Regulations may be cited as the Food (Jelly Mini-Cups) (Emergency Control) Regulations (Northern Ireland) 2009 and come into operation on 20th January 2010.

Interpretation

2.  (1)  In these Regulations—

“commercial operation” does not include exporting;

“the Commission Decision” means Commission Decision 2004/374/EC suspending the placing on the market and import of jelly mini-cups containing the food additives E400, E401, E402, E403, E404, E405, E406, E407, E407a, E410, E412, E413, E414, E415, E417 and/or E418(5);

“controlled jelly mini-cups” means any jelly mini-cups which contain any of the relevant food additives and which are intended for human consumption;

“the Order” means the Food Safety (Northern Ireland) Order 1991(6) and, save where otherwise indicated, any expression used both in these Regulations and in the Order has the same meaning as in the Order; and

“the relevant food additives” means the food additives E400: alginic acid; E401: sodium alginate; E402: potassium alginate; E403: ammonium alginate; E404: calcium alginate; E405: propane 1,2-diol alginate; E406: agar; E407: carrageenan; E407a: processed euchema seaweed; E410: locust bean gum; E412: guar gum; E413: tragacanth; E414: acacia gum; E415: xanthan gum; E417: tara gum and E418: gellan gum.

(2) Any term used both in these Regulations and in the Commission Decision has the same meaning as in the Commission Decision.

(3) The Interpretation Act (Northern Ireland) 1954(7) shall apply to these Regulations as it applies to an Act of the Assembly.

Prohibitions

3.  (1)  A person shall not carry out any commercial operation with respect to any controlled jelly mini-cups.

(2) For the purposes of paragraph (1), any jelly mini-cups which contain any of the relevant food additives shall be presumed until the contrary is proved to be controlled jelly mini-cups.

(3) A person shall not use any of the relevant food additives in the manufacture of any jelly mini-cups which are intended for human consumption.

(4) For the purposes of paragraph (3), any jelly mini-cups shall be presumed until the contrary is proved to be intended for human consumption.

(5) Any person who knowingly contravenes paragraph (1) or (3) shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale, or to imprisonment for a term not exceeding three months or to both.

Enforcement

4.  (1)  Each district council shall enforce and execute these Regulations within its district.

(2) For the purposes of enabling a district council to carry out its duty of executing and enforcing these Regulations, an authorised officer of that council shall be subject to the same obligations as regards the procurement of samples under Article 29 of the Order as are imposed on an authorised officer by regulations 6 to 8 of the Food Safety (Sampling and Qualifications) Regulations (Northern Ireland) 1991(8) (in these Regulations referred to as “the 1991 Regulations”), with the modification that any reference in those Regulations to Article 29 of the Order shall be deemed to be a reference to that Article as applied for the purposes of these Regulations by regulation 5(5).

(3) Each district council shall give such assistance and information to the Department of Health, Social Services and Public Safety and the Food Standards Agency as they may reasonably request in connection with the execution and enforcement of these Regulations.

Application etc. of various provisions of the Order

5.  (1)  The following provisions of the Order 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 for the purposes of these Regulations as a reference to these Regulations—

(a)Articles 2(4) (extended meaning of “sale” etc.) and 3 (application to food offered as prizes etc.);

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

(c)Article 20 (defence of due diligence)(9), with the further modifications that—

(i)paragraphs (2) to (4) shall apply in relation to an offence under regulation 3(1) and (3) as they apply to an offence under Article 13 or 14, and

(ii)in relation to an offence under regulation 3(1), the references to “sale” in paragraph (4)(b) are deemed to include references to the carrying out of any commercial operation.

(d)Article 30 (analysis etc. of samples) with the further modifications that—

(i)the reference to “Article 29” in paragraph (1) shall be deemed to be a reference to that Article as applied by regulation 5(5), and

(ii)in the definition of “sample” in paragraph (9) the reference to “regulations under Article 32” shall be deemed to be a reference to regulation 4(2);

(e)Article 33 (powers of entry);

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

(g)Article 34(2), with the further 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 (f);

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

(i)Article 36(2) and (3)(10), in so far as it relates to offences under Article 34(2) as applied by sub–paragraph (g).

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

8.  (1)  An authorised officer of a district council may at all reasonable times inspect any jelly mini-cups which—

(a)have been sold or are offered or exposed for sale; or

(b)are in the possession of, or have been deposited with or consigned to, any person for the purpose of sale or of preparation for sale.

(2) Paragraphs (3) to (8) apply where, whether or not on an inspection carried out under paragraph (1), it appears to an authorised officer that—

(a)any person has carried out commercial operations with respect to controlled jelly mini-cups, in contravention of regulation 3(1) of the Food (Jelly Mini-Cups) (Emergency Control) Regulations (Northern Ireland) 2009; or

(b)any person has used any of the relevant food additives in the manufacture of any jelly mini-cups which are intended for human consumption, in contravention of regulation 3(3) of those Regulations.

(3) The authorised officer may either—

(a)give notice to the person in charge of the jelly mini-cups that, until the notice is withdrawn, the jelly mini-cups or any specified quantity of them—

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

(ii)either are not to be removed or are not to be removed except to some place specified in the notice; or

(b)seize the jelly mini-cups and remove them in order to have them dealt with by a justice of the peace or lay magistrate;

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

(4) Where the authorised officer gives notice under paragraph (3)(a) that officer shall, as soon as is reasonably practicable and in any event before the expiration of 21 days from the date of the notice, determine whether or not he or she is satisfied that there has been no contravention of regulation 3(1) or (3) of the Food (Jelly Mini-Cups) (Emergency Control) Regulations (Northern Ireland) 2009 in relation to the jelly mini-cups and—

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

(b)if he or she is not so satisfied, shall seize the jelly mini-cups and remove them in order to have them dealt with by a justice of the peace or lay magistrate.

(5) Where an authorised officer exercises the powers conferred by paragraph (3)(b) or (4)(b), that officer shall inform the person in charge of the jelly mini-cups of the intention to have them dealt with by a justice of the peace or lay magistrate and—

(a)any person who under regulation 3(5) of the Food (Jelly Mini-Cups) (Emergency Control) Regulations (Northern Ireland) 2009 might be liable to a prosecution in respect of the jelly mini-cups shall, if that person attends before the justice of the peace or lay magistrate by whom the jelly mini-cups fall to be dealt with, be entitled to be heard and to call witnesses; and

(b)that lay magistrate 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) or (3) of the Food (Jelly Mini-Cups) (Emergency Control) Regulations (Northern Ireland) 2009 in relation to those jelly mini-cups.

(6) If it appears to a justice of the peace or lay magistrate as the case may be, on the basis of such evidence as the justice of the peace or lay magistrate considers appropriate in the circumstances, that any person has contravened regulation 3(1) or (3) of the Food (Jelly Mini-Cups) (Emergency Control) Regulations (Northern Ireland) 2009 in relation to any jelly mini-cups falling to be dealt with by the justice of peace or lay magistrate under this Article, the justice of peace or lay magistrate shall condemn the jelly mini-cups and order—

(a)the jelly mini-cups to be destroyed or to be so disposed of as to prevent them 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 jelly mini-cups.

(7) If a notice under paragraph (3)(a) is withdrawn, or the justice of the peace or lay magistrate by whom any jelly mini-cups fall to be dealt with under this Article refuses to condemn them, the district council shall compensate the owner of the jelly mini-cups for any depreciation in their value resulting from the action taken by the authorised officer.

(8) Any disputed question as to the right to or the amount of any compensation payable under paragraph (7) shall be determined by arbitration.

(9) For the purposes of—

(a)paragraph (2)(a), any jelly mini-cups which contain any of the relevant food additives shall be presumed until the contrary is proved to be controlled jelly mini-cups; and

(b)paragraph (2)(b), any jelly mini-cups shall be presumed until the contrary is proved to be intended for human consumption..

(3) The expressions “jelly mini-cups”, “controlled jelly mini-cups”, “the relevant food additives” and “for human consumption”, which are used in Article 8 of the Order in 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.

(4) Articles 2(4) (extended meaning of “sale” etc) and 3 (application of food offered as prizes etc.) of the Order shall apply in relation to Article 8 of the Order so far as it applies for the purposes of these Regulations by virtue of paragraph (2).

(5) Article 29 of the Order (procurement of samples) shall apply for the purposes of these Regulations with the modifications that—

(a)for paragraph (b)(ii) there shall be substituted—

(ii)is found by that authorised officer on or in any premises which that authorised officer is authorised to enter by virtue of Article 33 as applied for the purposes of the Food (Jelly Mini-Cups) (Emergency Control) Regulations (Northern Ireland) 2009 by regulation 5(1)(e) of those regulations;;

(b)paragraph (c) shall be omitted; and

(c)for the words “any of the provisions of this Order or of regulations or orders made under it” in paragraph (d) there shall be substituted the words “the Food (Jelly Mini-Cups) (Emergency Control) Regulations (Northern Ireland) 2009”.

(6) Regulation 9(1) of the 1991 Regulations shall apply for the purposes of these Regulations as if it read as follows—

(1) Where a sample procured under Article 29 of the Order as applied by regulation 5(5) of the Food (Jelly Mini-Cups) (Emergency Control) Regulations (Northern Ireland) 2009 has been analysed or examined pursuant to regulation 4(2) of those Regulations, the owner shall be entitled on request to be supplied with a copy of the certificate of analysis or examination by the district council.

Revocation

6.  The Food (Jelly Confectionery) (Emergency Control) Regulations (Northern Ireland) 2002(11) and the Food (Jelly Confectionery) (Emergency Control) (Amendment) Regulations (Northern Ireland) 2004(12) are revoked.

Sealed with the official seal of the Department of Health, Social Services and Public Safety on 11th December 2009.

Legal seal

Sean Donaghy

A senior officer of the Department of Health, Social Services and Public Safety

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations implement Commission Decision 2004/374/EC suspending the placing on the market and import of jelly mini-cups containing the food additives E400, E401, E402, E403, E404, E405, E406, E407, E407a, E410, E412, E413, E414, E415, E417 and/or E418 (OJ No. L118, 23.4.2004, p.70).

These Regulations—

(a)prohibit—

(i)the carrying out of commercial operations with regard to jelly mini-cups which contain any of the food additives E400, E401, E402, E403, E404, E405, E406, E407, E407a, E410, E412, E413, E414, E415, E417 or E418 and which are intended for human consumption, and

(ii)the use of any such additive in the manufacture of any jelly mini-cups which are intended for human consumption (regulation 3);

(b)provide for their enforcement (regulation 4);

(c)apply, with modifications, certain provisions of the Food Safety (Northern Ireland) Order 1991 (regulation 5); and

(d)revoke the Food (Jelly Confectionery) (Emergency Control) Regulations (Northern Ireland) 2002 (S.R. 2002 No.141) and the Food (Jelly Confectionery) (Emergency Control) (Amendment) Regulations (Northern Ireland) 2004 (S.R. 2004 No.182) (regulation 6).

(1)

Formerly the Department of Health and Social Services; see S.I. 1999/283 (N.I.1) Article 3(6)

(4)

OJ No. L31, 1.2.2002, as last amended by Regulation (EC) No. 596/2009 of the European Parliament and of the Council adapting a number of instruments subject to the procedure referred to in Article 251 of the Treaty to Council Decision 1999/468/EC with regard to the regulatory procedure with scrutiny: Adaptation to the regulatory procedure with scrutiny – Part Four (OJ No. L188, 18.7.2009, p.14)

(5)

OJ No. L118, 23.4.2004, p.70

(6)

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, S.R. 2004 No. 482 and S.R. 2004 No. 505

(8)

S.R 1991 No.198, to which there are amendments not relevant to these Regulations

(9)

Article 20 was amended by S.R 2004 No.505

(10)

Article 36(3) was amended by S.R. 2004 No. 505

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