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The Contaminants in Food (Scotland) Regulations 2002

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7.  (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 Part thereof shall be construed as a reference to these Regulations:–

(a)section 3 (presumption that food intended for human consumption);

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

(c)section 21 (defence of due diligence), as it applies for the purposes of section 8, 14 or 15 of the Act;

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

(e)section 33 (obstruction etc. of officers);

(f)section 35(1) to (3) (punishment of offences) in so far as it relates to offences under section 33(1) and (2) as applied by paragraph (e);

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

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

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

(2) Subject to paragraphs (3) and (4), 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 food intended for human consumption which–

(a)has been sold or is offered or exposed for sale; or

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

and subsections (2) to (7) below shall apply where, on such an inspection, it appears to the authorised officer that the placing on the market of any food (other than authorised spinach or authorised lettuce) contravenes regulation 3(1)(a)(i) of the Contaminants in Food (Scotland) Regulations 2002 or that the placing on the market of any food (other than authorised spinach) contravenes regulation 3(1)(b)(i) of those 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(a)give notice to the person in charge of the food that, until the notice is withdrawn, the food or any specified portion of it–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 required by Directive 98/53/EC, Directive 2001/22/EC or Directive 2002/26/EC, as appropriate; or

(b)seize the food and remove it in order to have it 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.

(3) Where the authorised officer exercises the powers conferred by sub-section (2)(a) above, that officer shall, as soon as is reasonably practicable and in any event within 21 days, determine whether or not that officer is satisfied that the food complies with the requirements of regulation 3(1)(a)(i) or (b)(i) of the Contaminants in Food (Scotland) Regulations 2002, as appropriate 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 food and remove it in order to have it dealt with by a sheriff.

(4) Where an authorised officer exercises the powers conferred by subsection (2)(b) or (3)(b) above, the authorised officer shall inform the person in charge of the food of the intention to have it dealt with by a sheriff and any person who under regulation 3(1)(a)(i) or (b)(i) of the Contaminants in Food (Scotland) Regulations 2002 might be liable to a prosecution in respect of the food shall, if that person attends before the sheriff by whom the food falls to be dealt with, be entitled to be heard and to call witnesses.

(5) If it appears to a sheriff, on the basis of such evidence as the sheriff considers appropriate in the circumstances, that any food falling to be dealt with under this section fails to comply with the requirements of regulation 3(1)(a)(i) or (b)(i) of the Contaminants in Food (Scotland) Regulations 2002, the sheriff 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 subsection (2)(a) above is withdrawn, or the sheriff by whom any food falls to be dealt with under this section refuses to condemn it, the food authority 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 subsection (6) above shall be determined by a single arbiter appointed, failing agreement between the parties, by the sheriff..

(3) The expressions “placing on the market”, “authorised spinach”, “authorised lettuce”, “Directive 98/53/EC”, “Directive 2001/22/EC” and “Directive 2002/26/EC”, which are used in section 9 of the Act 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) 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).

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