The Official Feed and Food Controls (Scotland) Regulations 2007

Explanatory Note

(This note is not part of the Regulations)

These Regulations revoke and re-enact with changes the Official Feed and Food Controls (Scotland) Regulations (S.S.I. 2005/616). They extend to Scotland only. The Regulations provide for the execution and enforcement of Regulation (EC) No. 882/2004 of the European Parliament and of the Council on official controls performed to ensure the verification of compliance with feed and food law, animal health and animal welfare rules (O.J. No. L 165, 30.4.04, p.1), as last amended by Council Regulation (EC) No.

1791/2006 (O.J. No. L 363, 20.12.06, p.1) in relation to “relevant feed law” and “relevant food law”, which terms are defined in Schedules 2 and 3 respectively. The revised text of Regulation (EC) No. 882/2004 is now set out in a Corrigendum (O.J. No. L 191, 28.5.04, p.1), which should be read with a further Corrigendum (O.J. No. L 204, 4.8.07, p.29).

The Regulations also impose prohibitions on the introduction of certain feed and food into Scotland in so far as non compliant with Article 11 of Regulation (EC) No. 178/2002 of the European Parliament and of the Council laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety (O.J. No. L 31, 1.2.02, p.1), as last amended by Commission Regulation (EC) No. 575/2006 (O.J. No. L 100, 8.4.06, p.3) and as read with Article 10 of Regulation (EC) No. 852/2004 of the European Parliament and of the Council on the hygiene of foodstuffs (O.J. No. L 139, 30.4.04, p.1; the revised text of that Regulation is now set out in a Corrigendum, O.J. No. L 226, 25.6.04, p.3, which should be read with a further Corrigendum, O.J. No. L 204, 4.8.07, p.26).

The principal changes introduced by the Regulations are that–

(a) it is provided that where an approval for a food business is refused or withdrawn, the food business operator using the establishment, may continue to use it, pending any appeal against the decision to refuse or withdraw approval, subject to conditions imposed by the competent authority for the protection of public health (regulation 13(5));

(b) it is provided that the introduction into Scotland of certain feed and food products is prohibited and that a person who contravenes such a prohibition is guilty of an offence (regulation 27 and regulation 39(1)(b));

(c) it is provided that an authorised officer of an enforcement authority must serve a notice when that officer proposes to place a consignment of feed or food under official detention–

(i) in case of suspicion of non compliance or because there is doubt as to the identity or the destination of the consignments, or

(ii) because the feed or food does not comply with feed or food law (regulation 30);

(d) it is provided that a person who contravenes or fails to comply with certain obligations relating to the checking of products that are introduced into Scotland is guilty of an offence (regulation 39(1)(c));

(e) it is provided that expenses may be charged by competent authorities where they arise from additional official controls or arise in respect of co-ordinated assistance and follow-up by the European Commission (regulations 41 and 42); and

(f) the definitions of “relevant feed law” and “relevant food law” in Schedules 2 and 3 respectively are revised.

These Regulations–

(a) provide for the designation of specified bodies as competent authorities for the purposes of the provisions of Regulation (EC) No. 882/2004 (regulation 4) and for the appointment of authorised officers of such bodies (regulation 3);

(b) provide for the exchange and provision of information by competent authorities (regulation 5);

(c) enable a competent authority to require a control body to provide information and make records available and provide that a person who–

(i) fails to comply with a requirement to provide information or make records available, or

(ii) in purported compliance with such a requirement furnishes false or misleading information,

is guilty of an offence (regulation 6);

(d) enable the Scottish Ministers to issue codes of recommended practice to feed authorities and food authorities in relation to their competent authority functions and the execution and enforcement of Part 3 of these Regulations relating to imports of feed and food of non-animal origin (regulation 7);

(e) give the Food Standards Agency the function of monitoring the performance of enforcement authorities in enforcing certain legislation (regulation 8);

(f) give the Food Standards Agency the power, for the purpose of carrying out the function referred to in sub-paragraph (e) of this paragraph–

(i) to require information to be provided and records to be made available (regulation 9), and

(ii) to authorise individuals (who may thereby exercise certain powers, including a power of entry) (regulation 10);

(g) define certain terms used in regulations 8 to 10 (regulation 11);

(h) provide that a person who–

(i) obstructs a person exercising a power to enter premises, take samples or inspect and copy records,

(ii) fails to comply with a requirement to provide information, make records available or provide facilities, records, information or other assistance, or

(iii) in purported compliance with such a requirement furnishes false or misleading information,

is guilty of an offence (regulation 11);

(i) provide a right of appeal to the sheriff and then to the Court of Session in respect of a decision of the competent authority concerning the approval of certain establishments taken under Article 31 of Regulation 882/2004 (regulations 13 and 14);

(j) provide that an authorised officer of a competent authority may be accompanied by 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 (regulation 15);

(k) provide that when an “enforcing officer”, defined in regulation 16(2), enters premises for the purpose of executing and enforcing official controls that officer may be accompanied by a Commission expert to enable that expert to carry out functions under Article 45 of Regulation 882/2004 (regulation 16);

(l) provide that a person who enters premises under the powers referred to in sub-paragraph (j) or (k) above and discloses any information obtained on the premises with regard to any trade secret is guilty of an offence unless the disclosure is made in the performance of that person’s duty (regulation 17);

(m) specify the authorities that are responsible for executing and enforcing regulations 6(3), 10(8), 12, 17, 19(8) and 20 (regulation 18);

(n) give powers of entry to authorised officers of the authorities referred to in sub-paragraph (m) above (regulation 19);

(o) create the offence of obstructing an officer acting in the execution of regulation 15, 16 or 19 (regulation 20);

(p) provide penalties for offences under Part 2 of these Regulations (regulation 21);

(q) provide a time limit for bringing prosecutions for offences under Part 2 (regulation 22);

(r) make provision for the execution and enforcement of Part 3 of these Regulations and Articles 15 to 24 of Regulation 882/2004, together defined in regulation 23 as “the Import Provisions” (regulations 23 and 24);

(s) make provision for the execution and enforcement of the Import Provisions to be deferred until a product reaches its destination in the United Kingdom (regulation 26);

(t) in the light of Article 11 of Regulation 178/2002 as read with Article 10 of Regulation 852/2004 (as described above) prohibit the introduction into Scotland of certain feed and food unless specified conditions are met (regulation 27);

(u) provide for the checking of products that are introduced into Scotland (regulation 28);

(v) provide that an enforcement authority, first, has the power to do anything that a competent authority may do under Articles 18 to 21 and 24(3) of Regulation 882/2004 and, second, is the competent authority for the purposes of Article 22 of that Regulation (regulation 29);

(w) provide for the service of notices by an authorised officer of an enforcement authority when that officer wishes to take certain measures or exercise certain powers under Articles 18 and 19 of Regulation 882/2004 (imports of feed and food from third countries) (regulation 30);

(x) provide a right of appeal to the sheriff and then to the Court of Session in respect of the service of notices under regulation 30 (regulations 31 and 32);

(y) enable the Scottish Ministers or the Agency by written declaration to suspend, or impose conditions on, the introduction into Scotland of any product from a third country where they learn or reasonably suspect that any food or feed that has been or may be so introduced is likely to constitute a serious risk to animal or public health (regulation 33);

(z) provide for the payment by feed and food business operators of the costs incurred by the enforcement authority for which they are liable under Article 22 of Regulation 882/2004 (costs incurred by competent authorities for the activities referred to in Articles 18, 19, 20 and 21 of that Regulation) are payable by the feed or food business operator or its representative on demand of the enforcement authority (regulation 34);

(aa) provide for the procurement and analysis of samples of food for the purposes of the execution and enforcement of the Import Provisions (regulations 35 and 36);

(bb) provide powers of entry for authorised officers of food authorities in relation to the execution and enforcement of the Import Provisions (regulation 37);

(cc) create the offence of obstructing an officer acting in the execution of the Import Provisions (regulation 38);

(dd) create offences consisting of contravening or failing to comply with specified regulations and failing to comply with a notice served under the Import Provisions and provide penalties for offences under Part 3 of these Regulations (regulation 39);

(ee) provide a time limit for bringing prosecutions for offences under Part 3 of these Regulations (regulation 40);

(ff) provide that expenses charged by a competent authority pursuant to Article 28 of Regulation 882/2004 (expenses arising from additional official controls) are payable by the operator (regulation 41);

(gg) provide that expenses charged by a competent authority pursuant to Article 40(4) of Regulation (EC) No. 882/2004 (expenses arising from co-ordinated assistance and follow-up by the Commission) are payable by the feed or food business (regulation 42);

(hh) provide that where the commission of an offence under these Regulations is due to the act or default of some other person that other person is guilty of the offence (regulation 43);

(ii) provide that in proceedings for an offence under these Regulations it is a defence to prove that the accused took all reasonable precautions and exercised all due diligence to avoid the commission of the offence (regulation 44);

(jj) provide that where an offence under these Regulations committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, an officer of the body corporate or a person purporting to act as such that officer or person as the case may be as well as the body corporate is to be deemed to be guilty of that offence and may be proceeded against and punished accordingly (regulation 45);

(kk) provide that where an offence under these Regulations which has been committed by a Scottish partnership is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, a partner he as well as the partnership is deemed to be guilty of that offence and may be proceeded against and punished accordingly (regulation 46);

(ll) provide for the protection of officers acting in good faith (regulation 47);

(mm) provide for the service of documents (regulation 48); and

(nn) revoke the Official Feed and Food Controls (Scotland) Regulations 2005 (S.I. 2005/616) (regulation 49) and references to them.

A full regulatory impact assessment of the effect that this instrument will have on the costs of business and the voluntary sector has been prepared and placed in the Scottish Parliament Information Centre. Copies may be obtained from the Food Standards Agency (Scotland), 6th Floor, St Magnus House, 25 Guild Street, Aberdeen, AB11 6NJ.