The Food Additives, Flavourings, Enzymes and Extraction Solvents (England) Regulations 2013

PART 1 Introductory

Title, application and commencement

1.  These Regulations may be cited as the Food Additives, Flavourings, Enzymes and Extraction Solvents (England) Regulations 2013, apply in relation to England only and come into force on 31st October 2013.

Interpretation

2.—(1) In these Regulations —

“the Act” means the Food Safety Act 1990;

“Directive 2009/32” means Directive 2009/32/EC of the European Parliament and of the Council on the approximation of the laws of the Member States on extraction solvents used in the production of foodstuffs and food ingredients(1);

“Regulation 2065/2003” means Regulation (EC) No 2065/2003 of the European Parliament and of the Council on smoke flavourings used or intended for use in or on foods(2);

“Regulation 1332/2008” means Regulation (EC) No 1332/2008 of the European Parliament and of the Council on food enzymes(3);

“Regulation 1333/2008” means Regulation (EC) No 1333/2008 of the European Parliament and of the Council on food additives(4), as read with —

(a)

Commission Regulation (EU) No 1129/2011 amending Annex II to Regulation (EC) No 1333/2008 of the European Parliament and of the Council by establishing a Union list of food additives(5),

(b)

Commission Regulation (EU) No 1130/2011 amending Annex III to Regulation (EC) No 1333/2008 of the European Parliament and of the Council on food additives by establishing a Union list of food additives for use in food additives, food enzymes, food flavourings and nutrients(6), and

(c)

Commission Regulation (EU) No 231/2012 laying down specifications for food additives listed in Annexes II and III to Regulation (EC) No 1333/2008 of the European Parliament and of the Council(7);

“Regulation 1334/2008” means Regulation (EC) No 1334/2008 of the European Parliament and of the Council on flavourings and certain food ingredients with flavouring properties for use in and on foods(8), as read with Commission Regulation (EU) No 873/2012 on transitional measures concerning the Union list of flavourings and source materials set out in Annex I to Regulation (EC) 1334/2008 of the European Parliament and of the Council(9);

“authorised officer” means any person who is authorised in writing, either generally or specially, by a food authority to act in matters arising under these Regulations;

“food authority” has the meaning given by section 5 of the Act except that it does not include the appropriate Treasurer of the Inner Temple and Middle Temple;

“the EU Regulations” means Regulation 2065/2003, Regulation 1332/2008, Regulation 1333/2008 and Regulation 1334/2008.

(2) Other expressions used in these Regulations and in the EU instruments listed in paragraph (4) have the same meaning in these Regulations as they do in those instruments.

(3) Any reference in these Regulations to an Article of or Annex to any of the EU instruments listed in paragraph (4) is a reference to that Article or Annex as amended from time to time.

(4) The EU instruments are Directive 2009/32, Regulation 2065/2003, Regulation (EC) No 1331/2008 of the European Parliament and of the Council establishing a common authorisation procedure for food additives, food enzymes and food flavourings(10), Regulation 1332/2008, Regulation 1333/2008 and Regulation 1334/2008.

(5) Where any functions under the Act are assigned —

(a) by an order under section 2 or 7 of the Public Health (Control of Disease) Act 1984(11), to a port health authority;

(b) by an order under section 6 of the Public Health Act 1936(12), to a joint board for a united district; or

(c) by an order under paragraph 15(6) of Schedule 8 to the Local Government Act 1985(13), to a single authority for a metropolitan county,

any reference in these Regulations to a food authority is to be construed, so far as relating to those functions, as a reference to the authority to which they are so assigned.

PART 2 Food additives, flavourings and enzymes

Offence of contravening EU requirements on food additives

3.  Any person who contravenes, or who uses or places on the market a product that fails to comply with, any of the provisions of Regulation 1333/2008 specified in the first column of Table 1 of Schedule 1, as read with transitional measures contained in or to be read with that Regulation, commits an offence.

Offence of contravening EU requirements on flavourings, including smoke flavourings

4.  Any person who contravenes, or who uses or places on the market a product which fails to comply with, any of the provisions of Regulation 1334/2008 specified in the first column of Table 1 of Schedule 2, as read with Article 4 (flavouring substances under evaluation) of Commission Implementing Regulation (EU) No 872/2012 adopting the list of flavouring substances provided for by Regulation (EC) No 2232/96 of the European Parliament and of the Council(14) and with transitional measures contained in or to be read with Regulation 1334/2008, commits an offence.

5.  Any person who contravenes, or who uses or places on the market a product which fails to comply with, any of the provisions of Regulation 2065/2003 specified in the first column of Table 1 of Schedule 3, as read with Article 20 (transitional measures), commits an offence.

Offence of contravening EU requirements on food enzymes

6.  Any person who contravenes, or who uses or places on the market a product which fails to comply with, any of the provisions of Regulation 1332/2008 specified in the first column of Table 1 of Schedule 4, as read with Articles 18 and 24 (transitional measures), commits an offence.

Compliance notices

7.—(1) If an authorised officer has reasonable grounds for believing that any person has not complied with, is not complying with, or is not likely to comply with —

(a) any EU provision specified in the first column of Table 2 of Schedule 1, 2, 3 or 4; or

(b) regulation 13(2),

the officer may serve a compliance notice on that person.

(2) A compliance notice must state —

(a) the steps the person must take;

(b) the date and, if appropriate, the time by which each step must be taken;

(c) the reason for the service of the notice and for the steps required to be taken;

(d) that a failure to comply with the notice is an offence; and

(e) the details of the right to appeal against the notice under regulation 8.

(3) An authorised officer may serve a notice on a person withdrawing, varying or suspending a compliance notice.

(4) Any person who fails to comply with a compliance notice served on them commits an offence.

Appeal against a compliance notice

8.—(1) Any person served with a compliance notice may appeal against that notice to a magistrates’ court.

(2) The procedure on appeal to a magistrates’ court under paragraph (1) shall be by way of complaint for an order, and the Magistrates’ Courts Act 1980(15) shall apply to the proceedings.

(3) The period within which an appeal under paragraph (1) may be brought shall be one month from the date on which the compliance notice was served on the person wishing to appeal and the making of a complaint for an order shall be deemed for the purposes of this paragraph to be the bringing of the appeal.

(4) A compliance notice is not suspended pending an appeal unless —

(a) an authorised officer suspends it under regulation 7(3); or

(b) the court directs that it be suspended.

(5) The court may —

(a) confirm the notice or any requirement contained in it;

(b) vary the notice or any requirement contained in it; or

(c) revoke the notice or any requirement contained in it.

PART 3 Extraction solvents

Controls on extraction solvents

9.  In this Part any reference to a numbered Article or Annex is a reference to that Article of or Annex to Directive 2009/32.

10.  The provisions of this Part do not apply to any extraction solvent —

(a) used in the production of any food additives, vitamins or any other nutritional additives, unless such food additives, vitamins or other nutritional additives are listed in Annex I; or

(b) intended for export outside the European Union.

11.  In this Part “permitted extraction solvent” means —

(a) an extraction solvent that —

(i) is listed in Annex I,

(ii) is used in accordance with the conditions of use and within any maximum residue limits specified in that Annex,

(iii) does not contain a toxicologically dangerous amount of any element or substance,

(iv) subject to any exceptions deriving from specific purity criteria, does not contain more than 1 mg/kg of arsenic or more than 1 mg/kg lead, and

(v) meets the requirements of Article 3(c) as regards purity criteria; or

(b) water to which substances regulating acidity or alkalinity may have been added; or

(c) food substances which possess solvent properties.

12.  No person may use as an extraction solvent in the production of food any extraction solvent that is not a permitted extraction solvent.

13.—(1) No person may place on the market —

(a) an extraction solvent that is not a permitted extraction solvent; or

(b) any food having in it or on it an added extraction solvent that is not a permitted extraction solvent.

(2) No person may place on the market an extraction solvent that does not meet the requirements of regulation 14.

14.—(1) Subject to paragraph (2), the following information must appear on the packaging, container or label —

(a) the commercial name as indicated in Annex I;

(b) a clear indication that the material is of a quality suitable for use for the extraction of food or food ingredients;

(c) a reference by which the batch or lot may be identified;

(d) the name or business name and address of the manufacturer or packer or of a seller established in the territory of the EU;

(e) the net quantity given as units of volume; and

(f) if necessary, the special storage conditions or conditions of use.

(2) The particulars specified in subparagraphs (c), (d), (e) and (f) of paragraph (1) may alternatively appear on the trade documents relating to the batch or lot which are to be supplied with, or prior to, the delivery.

(3) The information specified in paragraph (1) must be easily visible, clearly legible and indelible.

(4) The information specified in paragraph (1) may be provided in more than one language, but at least one of those languages must be easily understood by the purchaser unless other measures have been taken to ensure that the purchaser is informed of the specified information.

PART 4 Administration and enforcement

Competent authorities

15.  The competent authority for the purpose of Article 7 of Regulation 2065/2003 is the Food Standards Agency.

Enforcement authorities

16.  It is the duty of each food authority within its area or district to execute and enforce these Regulations and the EU Regulations.

Offences and penalties

17.—(1) Any person who contravenes regulation 12 or 13(1) commits an offence.

(2) Any person guilty of an offence under regulation 3, 4, 5, 6, 7(4) or 17(1) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

Condemnation of food

18.  Where any food is certified by a food analyst as being food which it is an offence to place on the market, that food shall be treated for the purposes of section 9 of the Act (under which food may be seized and destroyed under an order of a justice of the peace) as failing to comply with food safety requirements.

Application of various provisions of the Food Safety Act 1990

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

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

(b) section 21 (defence of due diligence)(16) with the modification that —

(i) subsections (2) to (4) shall apply in relation to an offence under regulation 3, 4, 5, 6, 7(4) or 17(1) as they apply in relation to an offence under section 14 or 15, and

(ii) in subsection (4) the references to “sale” are deemed to include references to “placing on the market”;

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

(d) section 35(1) (punishment of offences)(17), in so far as it relates to offences under section 33(1) as applied by paragraph (2)(b);

(e) section 35(2) and (3)(18), in so far as it relates to offences under section 33(2) as applied by paragraph (2)(c);

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

(g) section 36A (offences by Scottish partnerships)(19).

(2) The following provisions of the Act apply for the purposes of these Regulations with the modification that any reference in those provisions to the Act is to be construed as including a reference to the EU Regulations and these Regulations —

(a) section 3 (presumption that food is intended for human consumption) with the modification that the references to “sold” and “sale” are deemed to include references to “placed on the market” and “placing on the market” respectively;

(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” is deemed to be a reference to any such requirement as is mentioned in that subsection as applied by sub-paragraph (b); and

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

(3) Section 34 of the Act (time limit for prosecutions) applies to offences under these Regulations as it applies to offences punishable under section 35(2) of the Act.

PART 5 General

Consequential and other amendments

20.  In regulation 2(1) (interpretation) of the Food Labelling Regulations 1996(20), in the definition of “the additives regulations” omit the expression “the Food Additives (England) Regulations 1999,”.

Revocations

21.  The instruments listed in the first column of Schedule 5 are revoked to the extent specified in the second column.

Review

22.—(1) The Food Standards Agency must from time to time —

(a) carry out a review of the operation and effect of regulations 2 to 19;

(b) set out the conclusions of the review in a report; and

(c) publish the report.

(2) In carrying out the review the Food Standards Agency must, so far as is reasonable, have regard to how Directive 2009/32 is implemented and the EU Regulations executed and enforced in other Member States.

(3) The report must in particular —

(a) set out the objectives intended to be achieved by the regulatory system established by these Regulations;

(b) assess the extent to which those objectives are achieved; and

(c) assess whether those objectives remain appropriate and, if they do, the extent to which they could be achieved with a system that imposes less regulation.

(4) The first report under this regulation must be published before the end of the period of five years beginning with the day on which these Regulations come into force.

(5) Reports under this regulation are afterwards to be published at intervals not exceeding 5 years.

Signed by authority of the Secretary of State for Health.

Anna Soubry

Parliamentary Under-Secretary of State,

Department of Health

4th September 2013