The Food (Peanuts from China) (Emergency Control) (Wales) Regulations 2002

Application etc. of various provisions of the Act

5.—(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 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); and

(g) 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 or a port health authority may at all reasonable times inspect any controlled Chinese peanuts 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 controlled Chinese peanuts have been imported into Wales in contravention of regulation 3(1) or (2) of the Food (Peanuts from China) (Emergency Control) (Wales) Regulations 2002.

(3) The authorised officer may either—

(a) give notice to the person in charge of the peanuts that, until the notice is withdrawn, the peanuts or any specified quantity of them—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 peanuts and remove them in order to have them dealt with by a justice of the peace;

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, he shall, as soon as is reasonably practicable and in any event within 21 days, determine whether or not he is satisfied that the peanuts have not been imported in contravention of regulation 3(1) or (2) of the above Regulations and—

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

(b) if he is not so satisfied, shall seize the peanuts and remove them in order to have them dealt with by a justice of the peace.

(5) Where an authorised officer exercises the powers conferred by subsection (3)(b) or (4)(b) above, he shall inform the person in charge of the peanuts of his intention to have them dealt with by a justice of the peace and—

(a) any person who under regulation 3(5) of the above Regulations might be liable to a prosecution in respect of the peanuts shall, if he attends before the justice of the peace by whom the peanuts fall to be dealt with, be entitled to be heard and to call witnesses; and

(b) that justice of the peace 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 (2) of the above Regulations in relation to those peanuts.

(6) If it appears to a justice of the peace, on the basis of such evidence as he considers appropriate in the circumstances, that any peanuts falling to be dealt with by him under this section have been imported in contravention of regulation 3(1) or (2) of the above Regulations, he shall condemn the peanuts and order—

(a) the peanuts 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 peanuts.

(7) If a notice under subsection (3)(a) above is withdrawn, or the justice of the peace by whom any peanuts fall to be dealt with under this section refuses to condemn them, the food authority or, as the case may be, port health authority, shall compensate the owner of the peanuts 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 arbitration.

(9) For the purposes of this section, any Chinese peanuts shall be presumed until the contrary is proved to be controlled Chinese peanuts.”.

(3) The expressions “Chinese peanuts”, “controlled Chinese peanuts”, “food authority”, “for human consumption” and “port health authority”, 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).

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

(a) for the words “an enforcement authority” there shall be substituted the words “a food authority or as the case may be a port health authority”;

(b) for subsection b(ii) there shall be substituted the following provision—

“(ii) is found by him on or in any premises which he is authorised to enter by virtue of regulation 4(3) of the Food (Peanuts from China) (Emergency Control) (Wales) 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 the words “any of the provisions of this Act or of regulations or orders made under it” in subsection (d) there shall be substituted the words “the Food (Peanuts from China) (Emergency Control) (Wales) 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 peanuts he believes to be controlled Chinese peanuts, he shall ensure 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 that Annex;

(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 that Annex.

(1)

OJ No. L372, 31.12.85, p.90.

(2)

OJ No. L290, 24.11.93, p.14.