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The Contaminants in Food (Scotland) Regulations 2004

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Application of various sections of the Act

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

(a)section 3 (presumptions 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 sub–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 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 food intended for human consumption which–

(a)has been placed on the market; or

(b)is in the possession of, or has been deposited with or consigned to, any person for the purpose of placing it on the market,

and subsections (2) to (8) 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(a)(i) or (b)(i) of the Contaminants in Food (Scotland) Regulations 2004 (“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(a)give notice to the person in charge of the food that, until the notice is withdrawn, the food or any specified portion of it–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 required by Directive 98/53/EC, Directive 2001/22/EC, Directive 2002/26/EC, Directive 2002/69/EC, Directive 2003/78/EC and Directive 2004/16/EC, as appropriate; or

(b)seize the food and remove it in order to have it dealt with by the sheriff.

(3) Where an authorised officer exercises the power conferred by subsection (2)(a), 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(a)(i) or (b)(i) of the Regulations, as appropriate and–

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

(b)if that officer is not so satisfied, shall seize the food and remove it in order to have it dealt with by the sheriff.

(4) Where an authorised officer exercises the powers conferred by subsection (2)(b) or (3)(b), that officer shall inform the person in charge of the food of the intention to have it dealt with by the sheriff and any person who under regulation 3(a)(i) or (b)(i) of the Regulations 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 the 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(a)(i) or (b)(i) of the Regulations 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) 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.

(8) Any person who knowingly contravenes the requirements of a notice under subsection (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 “placing on the market”, “Directive 98/53/EC”, “Directive 2001/22/EC”, “Directive 2002/26/EC”, “Directive 2002/69/EC”, “Directive 2003/78/EC” and “Directive 2004/16/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 meaning that those expressions respectively bear in these Regulations..

Re-export or destruction of food presented for import

8.(1) Subject to regulation 9, if it appears to an authorised officer of a food authority that any food presented for import would, if placed on the market, contravene regulation 3(a)(i) or (b)(i) that officer may after appropriate consultation with a person appearing to be the importer of the food serve on that person a notice requiring–

(a)before 1st January 2005–

(i)the re-export of the food to a country other than a member State within such reasonable period as shall be specified in the notice; or

(ii)where such re-export would in the opinion of that officer involve serious risks to human health the destruction of the food within such reasonable period as shall be so specified;

(b)on or after 1st January 2005–

(i)where the requirements of Article 12 of the Community Regulation are satisfied the re-export of the food to a country other than a member State within such reasonable period as shall be specified in the notice; or

(ii)where the requirements of Article 12 of the Community Regulation are not satisfied the destruction of the food within such reasonable period as shall be so specified.

(2) Any notice served under paragraph (1) shall state–

(a)the right of appeal to the sheriff under paragraph (4); and

(b)the period within which such an appeal may be brought.

(3) The person appearing to be the importer of the food in respect of which a notice has been served under paragraph (1) shall ensure that it is stored until re-export or destruction under the supervision of the authorised officer at such places and under such conditions as the authorised officer may in the notice direct.

(4) Any person who is aggrieved by the decision of an authorised officer to serve a notice under paragraph (1) may appeal to the sheriff who may confirm or cancel the notice.

(5) The period within which such an appeal as is mentioned in paragraph (4) may be brought shall be 6 days from the date on which the notice was served exclusive of Saturdays, Sundays and public holidays.

(6) Pending determination of an appeal under paragraph (4), paragraph (3) shall apply to the storage of the food concerned.

(7) If the sheriff allows an appeal brought under paragraph (4) the food authority shall compensate the owner of the food concerned for any depreciation in its 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 a single arbiter appointed, failing agreement between the parties, by the sheriff.

(9) Any person who breaches the terms of a notice served under paragraph (1) 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.

(10) The cost of re export, storage or destruction of the food under this regulation shall be borne by the importer.

Secondary treatment of food presented for import to which Article 4.3 applies

9.(1) In relation to any food that is of the type referred to in Article 4.3(b) of the Commission Regulation that is presented for import and which appears to an authorised officer of a food authority to contravene regulation 3(a)(i) or (b)(i) that authorised officer may, after appropriate consultation with a person appearing to be the importer of the food, serve on that person a notice requiring that person to–

(a)deal with the food only in compliance with Article 4.3(a), (c) and (d) of the Commission Regulation; and

(b)place the food on the market as soon as is reasonably practicable.

(2) The notice served under paragraph (1) shall state–

(a)the right of appeal to the sheriff under paragraph (3); and

(b)the period within which such an appeal may be brought.

(3) Any person who is aggrieved by the decision of an authorised officer to serve a notice under paragraph (1) may appeal to the sheriff, who may confirm or cancel the notice.

(4) The period within which such an appeal as is mentioned in paragraph (3) may be brought shall be 6 days from the date on which the notice was served exclusive of Saturdays, Sundays and Public Holidays.

(5) Pending determination of an appeal under paragraph (3), the person appearing to be the importer of the food concerned shall–

(a)ensure that it is stored under the supervision of the authorised officer at such places and under such conditions as the authorised officer may direct; and

(b)bear the costs of such storage.

(6) If the sheriff allows an appeal brought under paragraph (3) the food authority shall compensate the owner of the food concerned 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 arbiter appointed, failing agreement between the parties, by the sheriff.

(8) Any person who fails to comply with any of the requirements specified in a notice served under paragraph (1) 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.

Transitional provisions

10.  Regulation 3(a)(i) and (b)(i) shall not apply in relation to any food–

(a)lawfully placed on the market in the European Community before 5th April 2002 which is covered by, but fails to meet the requirements of, Article 1.1, 2.1 or 2.2 of the Commission Regulation, as read with Article 1.2 of the Commission Regulation, to the extent that the failure consists in the food being placed on the market containing a contaminant specified in Section 3 or 4 of Annex I to the Commission Regulation at a level higher than that specified in relation to that food in the second column of the section concerned; or

(b)lawfully placed on the market in the European Community before 1st November 2003 which is covered by, but fails to meet the requirements of Article 1.1, 2.1 or 2.2 of the Commission Regulation, as read with Article 1.2 of the Commission Regulation, to the extent that the failure consists in the food being placed on the market containing patulin at a level higher than that specified in relation to that food in the second column of Section 2.3 of Annex I to the Commission Regulation.

11.  Regulation 3(a)(ii) and (b)(ii) shall not apply in relation to any contravention of Article 2.3 of the Commission Regulation, to the extent that the contravention consists in the use as a food ingredient, for the production of a compound foodstuff, of

(a)food lawfully placed on the market in the European Community before 5th April 2002 and containing a contaminant specified in Section 3 or 4 of Annex I to the Commission Regulation at a level higher than that specified in relation to that food in the second column of the section concerned; or

(b)food lawfully placed on the market in the European Community before 1st November 2003 and containing patulin at a level higher than that specified in relation to that food in the second column of Section 2.3 of Annex I to the Commission Regulation.

Consequential amendment

12.  In Schedule 1 to the Food Safety (Sampling and Qualifications) Regulations 1990(1) (provisions to which those Regulations do not apply) for the entry relating to the Contaminants in Food (Scotland) Regulations 2003 substitute–

  • The Contaminants in Food (Scotland) Regulations 2004 (S.S.I. 2004/525) (to the extent that a sample falls to be prepared and analysed in accordance with regulation 5 of those Regulations).

Revocations

13.  The Tin in Food Regulations 1992(2) and the Contaminants in Food (Scotland) Regulations 2003(3) are revoked.

(1)

S.I. 1990/2463; relevant amending instruments are S.I. 1999/1603, S.S.I. 2002/269 and 2003/289.

(2)

S.I. 1992/496.

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