The Food (Figs, Hazelnuts and Pistachios from Turkey) (Emergency Control) (Scotland) Regulations 2002

Application of various provisions of the Act

5.  (1)  The following provisions of the Act shall apply for the purposes of these Regulations and any reference in those provisions to the Act or any Part thereof, shall be construed for the purposes of these Regulations as a reference to these Regulations:–

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

(b)section 33(1) (obstruction etc. of officers);

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

(d)section 35(1) (punishment of offences) in so far as it relates to offences under section 33(1) as applied by sub-paragraph (b);

(e)section 35(2) and (3) in so far as it relates to offences under section 33(2) as applied by sub-paragraph (c);

(f)section 36 (offences by bodies corporate);

(g)section 36A (offences by Scottish partnerships); and

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

(2) Subject to paragraph (3), section 9 of the Act (inspection and seizure of suspected food) shall apply for the purposes of these Regulations as if it read as follows:–

9.  (1)  An authorised officer of a food authority may at all reasonable times inspect any Turkish figs, hazelnuts or pistachios 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) Subsections (3) to (8) shall apply where, whether or not on an inspection carried out under subsection (1), it appears to an authorised officer that any Turkish figs, hazelnuts or pistachios have been imported into Scotland in contravention of regulation 3(1) and (2) of the Food (Figs, Hazelnuts and Pistachios from Turkey) (Emergency Control) (Scotland) Regulations 2002.

(3) The authorised officer may either–

(a)give notice to the person in charge of the Turkish figs, hazelnuts or pistachios that, until the notice is withdrawn, the Turkish figs, hazelnuts or pistachios or any specified quantity of them–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 Turkish figs, hazelnuts or pistachios and remove them in order to have them dealt with by a sheriff,

and any person who knowingly contravenes the requirements of a notice under paragraph (a) above 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 exercises the powers conferred by subsection (3)(a) above, the authorised officer shall, as soon as is reasonably practicable and in any event within 21 days, determine whether or not he or she is satisfied that the Turkish figs, hazelnuts or pistachios have not been imported in contravention of regulation 3(1) or (2) of the Food (Figs, Hazelnuts and Pistachios from Turkey) (Emergency Control) (Scotland) Regulations 2002 and–

(a)if the authorised officer is so satisfied, shall forthwith withdraw the notice; or

(b)if the authorised officer is not so satisfied, shall seize the Turkish figs, hazelnuts or pistachios and remove them in order to have them dealt with by a sheriff.

(5) Where an authorised officer exercises the powers conferred by subsection (3)(b) or (4)(b) above, the authorised officer shall inform the person in charge of the Turkish figs, hazelnuts or pistachios of the intention to have them dealt with by a sheriff and any person who under regulation 3(4) of the Food (Figs, Hazelnuts and Pistachios from Turkey) (Emergency Control) (Scotland) Regulations 2002 might be liable to a prosecution in respect of the Turkish figs, hazelnuts or pistachios shall, if that person attends before the sheriff by whom the Turkish figs, hazelnuts or pistachios fall to be dealt with, be entitled to be heard and to call witnesses.

(6) If it appears to the sheriff, on the basis of such evidence as the sheriff considers appropriate in the circumstances, that any Turkish figs, hazelnuts or pistachios falling to be dealt with under this section have been imported in contravention of regulation 3(1) or (2) of the Food (Figs, Hazelnuts and Pistachios from Turkey) (Emergency Control) Regulations 2002, the sheriff shall condemn the Turkish figs, hazelnuts or pistachios and order–

(a)the Turkish figs, hazelnuts or pistachios 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 Turkish figs, hazelnuts or pistachios.

(7) If a notice under subsection (3)(a) above is withdrawn, or the sheriff by whom any Turkish figs, hazelnuts or pistachios fall to be dealt with under this section refuses to condemn them, the food authority shall compensate the owner of the Turkish figs, hazelnuts or pistachios 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 subsection (7) above shall be determined by a single arbiter appointed, failing agreement between the parties, by the sheriff..

(3) The words “Turkish figs, hazelnuts and pistachios” used in the application of section 9 of the Act for the purposes of these Regulations which is effected by paragraph (2) shall, for those purposes, bear the meanings that those words respectively bear in these Regulations.

(4) Section 2 of the Act (extended meaning of “sale” etc.) shall apply in relation to section 9 of the Act so far as it applies for the purposes of these Regulations by virtue of paragraph (2).

(5) Section 29 of the Act (procurement of samples) shall apply for the purposes of these Regulations with the modifications that–

(a)for “an enforcement authority” there shall be substituted “a food authority”;

(b)for subsection (b)(ii) there shall be substituted the following subsection:–

(ii)is found by the authorised officer on or in any premises which the authorised officer may enter by virtue of regulation 4(2) of the Food (Figs, Hazelnuts and Pistachios from Turkey) (Emergency Control (Scotland) Regulations 2002;;

(c)the power to take samples under subsections (b) and (d) shall be limited to the taking of samples in accordance with the methods of taking samples described or referred to in Annex I to Directive 98/53/EC;

(d)subsection (c) shall be omitted; and

(e)for “any of the provisions of this Act or of regulations or orders made under it” in subsection (d) there shall be substituted “the Food (Figs, Hazelnuts and Pistachios from Turkey) (Emergency Control) (Scotland) Regulations 2002”.

(6) Where, pursuant to section 29(b) of the Act as applied by paragraph (5), an authorised officer has taken a sample of any Turkish figs, hazelnuts and pistachios it must be ensured that–

(a)the sample is prepared in accordance with–

(i)paragraphs 1.1, 2 and 3 of Annex II to Directive 98/53/EC; and

(ii)in the case of whole nuts, paragraph 1.2 of Annex II to Directive 98/53/EC;

(b)an analysis of the sample is carried out in accordance with methods of analysis which–

(i)so far as practicable, comply with paragraphs 1 and 2 of the Annex to Council Directive 85/591/EEC concerning the introduction of Community methods of sampling and analysis for the monitoring of foodstuffs intended for human consumption(1); and

(ii)meet the criteria specified in paragraph 4.3 of Annex II to Directive 98/53/EC as read with the notes thereto;

(c)an analysis of the sample is carried out by a laboratory which complies with Council Directive 93/99/EEC on the subject of additional measures concerning the official control of foodstuffs(2); and

(d)the reporting of the result of the analysis of that sample–

(i)makes use of the definitions in paragraph 4.1 of Annex II to Directive 98/53/EC; and

(ii)is in accordance with paragraph 4.4 of Annex II to Directive 98/53/EC.

(1)

O.J. L 372, 31.12.85, p.90.

(2)

O.J. L 290, 24.11.93, p.14.