The Official Feed and Food Controls (Wales) Regulations 2005

PART II E+W MAIN PROVISIONS

Competent authorities E+W

3.—(1) Subject to paragraphs (2) and (5), any body specified in Column 1 of Schedule 4 is designated as a competent authority for the purposes of the provisions of Regulation 882/2004 indicated in the corresponding entry in Column 2 of that Schedule in so far as those provisions apply in relation to relevant feed law.

(2) Where the feed authority is designated as a competent authority pursuant to paragraph (1) the designation extends to its area or district only, as the case may be.

(3) Subject to paragraphs (4) to (6), any body specified in column 1 of Schedule 5 is designated as a competent authority for the purposes of the provisions of Regulation 882/2004 indicated in the corresponding entry in column 2 of that Schedule in so far as those provisions apply in relation to relevant food law.

(4) Where the feed authority is designated as a competent authority pursuant to paragraph (3) the designation will extend to its area or district only as the case may be.

(5) Where the Agency is designated as a competent authority pursuant to paragraph (1) or (3) for the purposes of Article 31(1) of Regulation 882/2004, the designation extends in relation to primary production and the associated operations in respect of which the Agency executes and enforces the Food Hygiene (Wales) Regulations 2005 M1 by virtue of regulation 5(1)(a) of those Regulations.

(6) Where the Agency is designated as a competent authority pursuant to paragraph (3) for the purposes of Article 31(2) of Regulation 882/2004, the designation will extend, as regards Article 31(2)(a) to (e), to those establishments and activities in respect of which the Agency executes and enforces the Food Hygiene (Wales) Regulations 2005 by virtue of regulation 5(2) of those Regulations.

Commencement Information

I1 Reg. 3 in force at 1.1.2006, see reg. 1

Marginal Citations

M1 S.I. 2005/3292 (W.252).

Exchanging and providing information E+W

4.—(1) For the purposes of enabling competent authorities, other OFFC authorities and Member States to fulfil the obligations placed on them by Regulation 882/2004 competent authorities may exchange among themselves or provide to other OFFC authorities any information received by them in the execution or enforcement of relevant feed law or relevant food law.

(2) For the purpose of executing or enforcing relevant feed law or relevant food law, competent authorities may exchange among themselves any information received by them in the execution or enforcement of relevant feed law or relevant food law.

(3) Competent authorities may share information received by them in the execution or enforcement of relevant feed law or relevant food law with the bodies which execute and enforce relevant feed law or relevant food law in England, Northern Ireland and Scotland for the purposes of facilitating the execution or enforcement of relevant feed law or relevant food law in those countries.

(4) Paragraphs (1), (2) and (3) are without prejudice to any other power of competent authorities to disclose information by or under Community legislation.

(5) For the purposes of this regulation, “other OFFC authorities” means authorities designated in the United Kingdom as competent authorities for the purposes of Regulation 882/2004 other than the competent authorities designated under these Regulations.

Commencement Information

I2 Reg. 4 in force at 1.1.2006, see reg. 1

Obtaining information E+W

5.—(1) For the purpose of enabling competent authorities and Member States to fulfil the obligations placed on them by Regulation 882/2004 and for the purpose of executing or enforcing relevant feed law or relevant food law, a competent authority may require a control body—

(a) to provide the competent authority with any information which it has reasonable cause to believe the control body is able to give; or

(b) to make available to the competent authority for inspection by it any records which it has reasonable cause to believe are held by the control body or are otherwise within its control (and if they are kept in computerised form, to make them available in a legible form).

(2) The competent authority may copy any records made available to it under paragraph (1)(b).

(3) A person who —

(a) fails without reasonable excuse to comply with any requirement imposed under paragraph (1); or

(b) in purported compliance with such a requirement furnishes information which he or she knows to be false or misleading in any material particular or recklessly furnishes information which is false or misleading in any material particular,

is guilty of an offence.

(4) For the purposes of paragraph (1), the term “control body” (“corff rheoli”) includes any member, officer or employee of a control body.

Commencement Information

I3 Reg. 5 in force at 1.1.2006, see reg. 1

Power to issue codes of recommended practice E+W

6.—(1) For the guidance of feed authorities and food authorities, the Assembly may issue codes of recommended practice as regards—

(a) functions conferred upon those authorities in their capacity as competent authorities by or under Regulation 882/2004; or

(b) the execution and enforcement of Part III of these Regulations.

(2) The Agency may, after consulting the Assembly, give a feed authority or food authority a direction requiring them to take any specified steps in order to comply with a code issued under this regulation.

(3) In exercise of the functions conferred on them as competent authorities by or under Regulation 882/2004, every feed authority and food authority—

(a) must have regard to any relevant provision of any such code; and

(b) must comply with any direction which is given under this regulation and requires them to take any specified steps in order to comply with such a code.

(4) Any direction under paragraph (2) will, on the application of the Agency, be enforceable by mandatory order.

(5) The Agency must consult the Assembly before making an application under paragraph (4).

(6) Before issuing any code under this regulation, the Assembly will have regard to any relevant advice given by the Agency.

Commencement Information

I4 Reg. 6 in force at 1.1.2006, see reg. 1

Monitoring of enforcement action E+W

7.—(1) The Agency has the function of monitoring the performance of enforcement authorities in enforcing relevant audit legislation.

(2) That function includes, in particular, setting standards of performance (whether for enforcement authorities generally or for particular authorities) in relation to the enforcement of any relevant audit legislation.

(3) Each annual report of the Agency must contain a report on its activities during the year in enforcing any relevant audit legislation for which it is the enforcement authority and its performance in respect of —

(a) any standards under paragraph (2) that apply to those activities; and

(b) any objectives relating to those activities that are specified in the statement of objectives and practices under section 22 of the Food Standards Act 1999 M2 .

(4) The Agency may make a report to any other enforcement authority on their performance in enforcing any relevant audit legislation and such a report may include guidance as to action which the Agency considers would improve that performance.

(5) The Agency may direct an authority to which such a report has been made —

(a) to arrange for the publication in such manner as may be specified in the direction of, or of specified information relating to, the report; and

(b) within such period as may be so specified to notify the Agency of what action they have taken or propose to take in response to the report.

(6) Section 19 of the Food Standards Act 1999 applies in relation to information obtained through monitoring under this regulation as if it were information obtained through monitoring under section 12 of that Act.

Commencement Information

I5 Reg. 7 in force at 1.1.2006, see reg. 1

Marginal Citations

M2 1999 c. 28.

Power to request information relating to enforcement action E+W

8.—(1) For the purpose of carrying out its function under regulation 7 in relation to any enforcement authority the Agency may require a person mentioned in paragraph (2) —

(a) to provide the Agency with any information which it has reasonable cause to believe that person is able to give; or

(b) to make available to the Agency for inspection any records which it has reasonable cause to believe are held by that person or otherwise within that person's control (and, if they are kept in computerised form, to make them available in a legible form).

(2) A requirement under paragraph (1) may be imposed on —

(a) the enforcement authority or any member, officer or employee of the authority; or

(b) a person subject to any duty under relevant audit legislation (being a duty enforceable by an enforcement authority) or any officer or employee of such a person.

(3) The Agency may copy any records made available to it in pursuance of a requirement under paragraph (1)(b).

Commencement Information

I6 Reg. 8 in force at 1.1.2006, see reg. 1

Power of entry for persons monitoring enforcement action E+W

9.—(1) The Agency may authorise any individual (whether a member of its staff or otherwise) to exercise the powers specified in paragraph (4) for the purpose of carrying out its function under regulation 7 in relation to any enforcement authority.

(2) No authorisation under this regulation may be issued except in pursuance of a decision taken by the Agency itself or by a committee, sub-committee or member of the Agency acting on behalf of the Agency.

(3) An authorisation under this regulation must be in writing and may be given subject to any limitations or conditions specified in the authorisation (including conditions relating to hygienic precautions to be taken while exercising powers in pursuance of the authorisation).

(4) An authorised person may —

(a) enter any premises mentioned in paragraph (5) at any reasonable hour in order to inspect the premises or anything which may be found on them;

(b) take samples of any articles or substances found on such premises;

(c) inspect and copy any records found on such premises (and, if they are kept in computerised form, require them to be made available in a legible form);

(d) require any person present on such premises to provide him or her with such facilities, such records or information and such other assistance as he or she may reasonably request.

(5) The premises which may be entered by an authorised person are —

(a) any premises occupied by the enforcement authority;

(b) any laboratory or similar premises at which work related to the enforcement of any relevant legislation has been carried out for the enforcement authority; and

(c) any other premises (not being a private dwelling-house) which the authorised person has reasonable cause to believe are premises in respect of which the enforcement powers of the enforcement authority are (or have been) exercisable.

(6) The power to enter premises conferred on an authorised person includes power to take with him or her any other person he or she may consider appropriate.

(7) An authorised person must on request —

(a) produce his or her authorisation before exercising any powers under paragraph (4); and

(b) provide a document identifying any sample taken, or documents copied, under those powers.

(8) If a person who enters any premises by virtue of this section discloses to any person any information obtained on the premises with regard to any trade secret that person is, unless the disclosure is made in the performance of his or her duty, guilty of an offence.

(9) Where the Agency is the enforcement authority in relation to relevant audit legislation this regulation applies in relation to the Agency (in relation to its performance in enforcing those provisions) with the omission of paragraph (5)(a).

(10) In this regulation “authorised person” means a person authorised under this regulation.

Commencement Information

I7 Reg. 9 in force at 1.1.2006, see reg. 1

Meaning of “enforcement authority” and related expressions E+W

10.—(1) In regulations 7 to 9 “ relevant audit legislation” means relevant feed law and relevant food law in respect of which the Agency is designated as a competent authority pursuant to paragraphs (1) and (3) of regulation 3 respectively but does not include relevant legislation as defined in section 15 of the Food Standards Act 1999.

(2) In regulations 7 to 9 “enforcement authority” means the authority by whom relevant audit legislation is to be enforced and includes the Agency itself if by virtue of that legislation it is the enforcement authority in relation to it but does not include the European Commission; and “enforcement” in relation to relevant audit legislation includes the execution of any provisions of that legislation.

(3) Any reference in regulations 7 to 9 (however expressed) to the performance of an enforcement authority in enforcing any relevant audit legislation includes a reference to the capacity of that authority to enforce it.

Commencement Information

I8 Reg. 10 in force at 1.1.2006, see reg. 1

Offences relating to regulations 8 and 9 E+W

11.  A person who —

(a) intentionally obstructs a person exercising powers under paragraph (4)(a), (b) or (c) of regulation 9;

(b) fails without reasonable excuse to comply with any requirement imposed under paragraph (1) of regulation 8 or paragraph (4)(d) of regulation 9; or

(c) in purported compliance with such a requirement furnishes information which that person knows to be false or misleading in any material particular or recklessly furnishes information which is false or misleading in any material particular,

is guilty of an offence.

Commencement Information

I9 Reg. 11 in force at 1.1.2006, see reg. 1

Right of appeal E+W

12.—(1) Any person who is aggrieved by a decision of the competent authority taken in respect of an establishment subject to approval under Article 4(2) of Regulation 853/2004 pursuant to—

(a) Article 31(2)(c) of Regulation 882/2004 (approval);

(b) Article 31(2)(d) of Regulation 882/2004 (conditional approval and full approval); or

(c) Article 31(2)(e) of Regulation 882/2004 (withdrawal of approval and suspension of approval),

may appeal to a magistrates' court.

(2) The procedure on an appeal to a magistrates' court under paragraph (1) is by way of complaint for an order, and the Magistrates' Courts Act 1980M3 applies to the proceedings.

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

(4) Where on an appeal under paragraph (1) a magistrates' court determines that the decision of the competent authority is incorrect, the authority must give effect to the determination of the court.

(5) Where an approval is withdrawn, the food business operator who, immediately before such withdrawal, had been using the establishment concerned may continue to use it, subject to any conditions imposed by the competent authority for the protection of public health, unless—

(a) the time for appealing against the decision to withdraw the approval has expired without an appeal having been lodged; and

(b) where an appeal against that decision has been lodged, the appeal has been finally disposed of or abandoned.

(6) Nothing in paragraph (5) permits an establishment to be used for a food business if—

(a) a hygiene prohibition order, a hygiene emergency prohibition notice or a hygiene emergency prohibition order has been imposed in relation to the establishment;

(b) a prohibition order, an emergency prohibition notice, an emergency prohibition order or an emergency control order has been imposed in relation to the establishment pursuant to section 11, 12 or 13 of the Act;

(c) the approval of the establishment has been suspended pursuant to Article 31(2)(e) of Regulation 882/2004; or

(d) the establishment is prevented from operating following the service of a remedial action notice.

(7) In this Regulation each of the terms “hygiene prohibition order”, “hygiene emergency prohibition notice”, “hygiene emergency prohibition order” and “remedial action notice” has the same meaning as it has in the Food Hygiene (Wales) Regulations 2005.

Commencement Information

I10 Reg. 12 in force at 1.1.2006, see reg. 1

Marginal Citations

M3 1980 c. 43.

Appeals to Crown Court against dismissal under regulation 12(1) E+W

13.  A person who is aggrieved by the dismissal by a magistrates' court of an appeal to it under regulation 12(1) may appeal to the Crown Court.

Commencement Information

I11 Reg. 13 in force at 1.1.2006, see reg. 1

Staff of competent authority of another Member State E+W

14.  An authorised officer of a competent authority may take with him or her the staff of the competent authority of another Member State for the purpose of conducting an administrative enquiry under Article 36 of Regulation 882/2004.

Commencement Information

I12 Reg. 14 in force at 1.1.2006, see reg. 1

Commission experts E+W

15.—(1) When an enforcing officer enters premises for the purposes of executing and enforcing official controls the officer may take with him or her a Commission expert to enable that expert to carry out functions under Article 45 of Regulation 882/2004.

(2) In this Regulation “enforcing officer” means an authorised officer of any authority which is responsible for executing and enforcing official controls for the verification of compliance with relevant feed law and relevant food law.

Commencement Information

I13 Reg. 15 in force at 1.1.2006, see reg. 1

Prohibition on disclosure of trade secrets E+W

16.  If a person enters any premises by virtue of regulation 14 or 15 and discloses to any person any information obtained on the premises with regard to any trade secret he or she will be, unless the disclosure is made in the performance of his or her duty, guilty of an offence.

Commencement Information

I14 Reg. 16 in force at 1.1.2006, see reg. 1

Execution and enforcement E+W

17.—(1) The authority responsible for executing and enforcing paragraph (3) of regulation 5 is the competent authority who imposed the requirement on the control body concerned under paragraph (1) of that regulation.

(2) The authority responsible for executing and enforcing paragraph (8) of regulation 9 and regulation 11 is the Agency.

(3) The authority responsible for executing and enforcing regulation 16 is the authority whose officer took the person who made the disclosure on to the premises concerned.

Commencement Information

I15 Reg. 17 in force at 1.1.2006, see reg. 1

Powers of entry E+W

18.—(1) An authorised officer of a relevant enforcement authority other than the Agency will, on producing, if so required, some duly authenticated document showing his or her authority, have a right at all reasonable hours—

(a) to enter any premises within the authority's area or as the case may be district, for the purpose of ascertaining whether there is or has been on the premises any contravention of paragraph (3) of regulation 5 or regulation 16 for which that authority has enforcement responsibility pursuant to paragraph (1) or as the case may be (3) of regulation 17; and

(b) to enter any premises, whether within or outside the authority's area or as the case may be district, for the purpose of ascertaining whether there is on the premises any evidence of any such contravention within that area or district,

but admission to any premises used only as a private dwelling-house may not be demanded as of right unless 24 hours' notice of the intended entry has been given to the occupier.

(2) An authorised officer of the Agency will, on producing if so required some duly authenticated document showing that officer's authority, have a right at all reasonable hours to enter any premises for the purpose of—

(a) ascertaining whether there is or has been on the premises any contravention of paragraph (8) of regulation 9 or regulation 11, or any contravention of paragraph (3) of regulation 5 or regulation 16 for which the Agency has enforcement responsibility pursuant to paragraph (1) or as the case may be (3) of regulation 17; and

(b) ascertaining whether there is on the premises any evidence of any such contravention,

but admission to any premises used only as a private dwelling-house may not be demanded as of right unless 24 hours' notice of the intended entry has been given to the occupier.

(3) If a justice of the peace, on sworn information in writing, is satisfied that there is reasonable ground for entry onto any premises for any such purpose as is mentioned in paragraph (1) or (2) and either—

(a) that admission to the premises has been refused, or a refusal is apprehended, and that notice of the intention to apply for a warrant has been given to the occupier; or

(b) that an application for admission, or the giving of such a notice, would defeat the object of the entry, or that the case is one of urgency, or that the premises are unoccupied or the occupier is temporarily absent,

the justice may by warrant signed by him or her authorise the authorised officer to enter the premises, if need be by reasonable force.

(4) Every warrant granted under this regulation will continue in force for a period of one month.

(5) An authorised officer entering any premises by virtue of this regulation, or of a warrant issued under it, may take with him or her such other persons as the officer considers necessary, and on leaving any unoccupied premises which he or she has entered by virtue of such a warrant must leave them as effectively secured against unauthorised entry as that in which they were found.

(6) An authorised officer entering premises by virtue of this regulation, or of a warrant issued under it, may inspect any records (in whatever form they are held) and, where any such records are stored in any electronic form—

(a) may have access to, and inspect and check the operation of, any computer and any associated apparatus or material which is or has been in use in connection with the records; and

(b) may require any person having charge of, or otherwise concerned with the operation of, the computer, apparatus or material to afford the officer such assistance as the officer may reasonably require.

(7) Any officer exercising any power conferred by paragraph (6) may—

(a) seize and detain any records which the officer has reason to believe may be required as evidence in proceedings under any of the provisions of this Part of the Regulations; and

(b) where the records are stored in any electronic form, require the records to be produced in a form in which they may be taken away.

(8) If any person who enters any premises by virtue of this regulation, or of a warrant issued under it, discloses to any other person any information obtained by him or her on the premises with regard to any trade secret, he or she will, unless the disclosure was made in the performance of his or her duty, be guilty of an offence.

(9) Nothing in this regulation authorises any person, except with the permission of the local authority under the Animal Health Act 1981 M4 , to enter any premises—

(a) on which an animal or bird affected with any disease to which that Act applies is kept; and

(b) which is situated in a place declared under that Act to be infected with such a disease.

Commencement Information

I16 Reg. 18 in force at 1.1.2006, see reg. 1

Marginal Citations

M4 1981 c. 22.

Obstruction etc. of officers E+W

19.—(1) Any person who—

(a) intentionally obstructs any person acting in the execution of this Part of the Regulations; or

(b) without reasonable cause, fails to give to any person acting in the execution of this Part of the Regulations any assistance or information which that person may reasonably require of him or her for the performance of that person's functions under this Part of the Regulations,

will be guilty of an offence.

(2) Any person who, in purported compliance with any such requirement as is mentioned in paragraph (1)(b)—

(a) furnishes information which that person knows to be false or misleading in a material particular; or

(b) recklessly furnishes information which is false or misleading in a material particular,

will be guilty of an offence.

(3) Nothing in paragraph (1)(b) may be construed as requiring any person to answer any question or give any information if to do so might incriminate that person.

Commencement Information

I17 Reg. 19 in force at 1.1.2006, see reg. 1

Penalties E+W

20.—(1) Subject to paragraph (2), a person guilty of an offence under this Part of the Regulations will be liable—

(a) on summary conviction to a fine not exceeding the statutory maximum; or

(b) on conviction on indictment to imprisonment for a term not exceeding two years, to a fine or to both.

(2) A person guilty of an offence under paragraph (3) of regulation 5, paragraph (8) of regulation 9, or regulation 11 or 16 will be liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(3) A person guilty of an offence under regulation 19 will be 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.

Commencement Information

I18 Reg. 20 in force at 1.1.2006, see reg. 1

Time limit for prosecutions E+W

21.  No prosecution for an offence under this Part of the Regulations which is punishable under paragraph (1) of regulation 20 may be begun after the expiry of—

(a) three years from the commission of the offence; or

(b) one year from its discovery by the prosecutor,

whichever is the earlier.

Commencement Information

I19 Reg. 21 in force at 1.1.2006, see reg. 1