Application etc. of various provisions of the Act
5.—(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 thereof is construed for the purposes of these Regulations as a reference to these Regulations—
(a)section 2 (extended meaning of “sale” etc.);
(b)section 20 (offences due to fault of another person);
(c)section 21 (defence of due diligence(1)), with the further modifications that—
(i)subsections (2) to (4) apply in relation to an offence under regulation 3(1) and (3) as they apply to an offence under section 14 or 15, and
(ii)in relation to an offence under regulation 3(1), the references to “sale” in subsection (4)(b) are deemed to include references to the carrying out of any commercial operation;
(d)section 30 (analysis etc. of samples) with the further modifications that—
(i)the reference to “section 29 above” in subsection (1) is deemed to be a reference to that section as applied by regulation 5(5), and
(ii)in the definition of “sample” in subsection (9) the reference to “regulations under section 31 below” is deemed to be a reference to regulation 4(2);
(e)section 32 (powers of entry), with the further modification that in subsection (1) the reference to “an enforcement authority” is deemed to be a reference to a food authority;
(f)section 33(1) (obstruction etc. of officers);
(g)section 33(2), with the further 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 section 33(1)(b) as applied by sub–paragraph (f);
(h)section 35(1) (punishment of offences)(2), in so far as it relates to offences under section 33(1) as applied by sub–paragraph (f);
(i)section 35(2) and (3)(3), in so far as it relates to offences under section 33(2) as applied by sub–paragraph (g);
(j)section 36 (offences by bodies corporate);
(k)section 36A (offences by Scottish partnerships)(4); and
(l)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) applies 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 jelly mini-cups 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) apply where, whether or not on an inspection carried out under subsection (1), it appears to an authorised officer that—
(a)any person has carried out commercial operations with respect to controlled jelly mini-cups, in contravention of regulation 3(1) of the Food (Jelly Mini-Cups) (Emergency Control) (Wales) Regulations 2009; or
(b)any person has used any of the relevant food additives in the manufacture of any jelly mini-cups which are intended for human consumption, in contravention of regulation 3(3) of those Regulations.
(3) The authorised officer may either—
(a)give notice to the person in charge of the jelly mini-cups that, until the notice is withdrawn, the jelly mini-cups 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 jelly mini-cups 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 sub-paragraph (a) is 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) that officer must, as soon as is reasonably practicable and in any event within 21 days, determine whether or not he or she is satisfied that there has been no contravention of regulation 3(1) or (3) of the Food (Jelly Mini-Cups) (Emergency Control) (Wales) Regulations 2009 in relation to the jelly mini-cups and—
(a)if he or she is so satisfied, must forthwith withdraw the notice; and
(b)if he or she is not so satisfied, must seize the jelly mini-cups 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), that officer must inform the person in charge of the jelly mini-cups of his or her intention to have them dealt with by a justice of the peace and—
(a)any person who under regulation 3(5) of the Food (Jelly Mini-Cups) (Emergency Control) (Wales) Regulations 2009 might be liable to a prosecution in respect of the jelly mini-cups is, if he or she attends before the justice of the peace by whom the jelly mini-cups fall to be dealt with, 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 (3) of the Food (Jelly Mini-Cups) (Emergency Control) (Wales) Regulations 2009 in relation to those jelly mini-cups.
(6) If it appears to a justice of the peace, on the basis of such evidence as the justice of the peace considers appropriate in the circumstances, that any person has contravened regulation 3(1) or (3) of the Food (Jelly Mini-Cups) (Emergency Control) (Wales) Regulations 2009 in relation to any jelly mini-cups falling to be dealt with by the justice of the peace under this section, the justice of the peace must condemn the jelly mini-cups and order—
(a)the jelly mini-cups 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 jelly mini-cups.
(7) If a notice under subsection (3)(a) is withdrawn, or the justice of the peace by whom any jelly mini-cups fall to be dealt with under this section refuses to condemn them, the food authority must compensate the owner of the jelly mini-cups 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) is to be determined by arbitration.
(9) For the purposes of—
(a)subsection (2)(a), any jelly mini-cups which contain any of the relevant food additives are presumed until the contrary is proved to be controlled jelly mini-cups; and
(b)subsection (2)(b), any jelly mini-cups are presumed until the contrary is proved to be intended for human consumption.”.
(3) The expressions “food authority”, “jelly mini-cups”, “controlled jelly mini-cups”, “the relevant food additives” and “for human consumption”, which are used in section 9 of the Act in so far as it applies for the purposes of these Regulations by virtue of paragraph (2), will, 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.) applies in relation to section 9 of the Act in 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) applies for the purposes of these Regulations with the modifications that—
(a)for the words “an enforcement authority” there is substituted the words “a food authority”;
(b)for subsection (b)(ii) there is substituted the following provision—
“(ii)is found by that person on or in any premises which he or she is authorised to enter pursuant to section 32 as applied for the purposes of the Food (Jelly Mini-Cups) (Emergency Control) (Wales) Regulations 2009 by regulation 5(1)(e) of those Regulations;”;
(c)subsection (c) is omitted; and
(d)for the words “any of the provisions of this Act or of regulations or orders made under it” in subsection (d) there is substituted the words “the Food (Jelly Mini-Cups) (Emergency Control) (Wales) Regulations 2009”.
(6) Regulation 9(1) of the 1990 Regulations applies for the purposes of these Regulations as if it read as follows—
“(1) Where a sample procured under section 29 of the Act as applied by regulation5(5) of the Food (Jelly Mini-Cups) (Emergency Control) (Wales) Regulations 2009 has been analysed or examined pursuant to regulation 4(2) of those Regulations, the owner is entitled on request to be supplied with a copy of the certificate of analysis or examination by the authority which, by virtue of regulation 4(1) of those Regulations, has the duty of enforcing them.”.
Section 21 was amended by S.I. 2004/3279.
Section 35(1) is amended by the Criminal Justice Act 2003 (2003 c. 44), Schedule 26, paragraph 42, from a date to be appointed.
Section 35(3) was amended by S.I. 2004/3279.
Section 36A was inserted by the Food Standards Act 1999 (1999 c. 28), Schedule 5, paragraph 16.