Scottish Statutory Instruments
2002 No. 267
FOOD
The Contaminants in Food (Scotland) Regulations 2002
Made 6th June 2002
Laid before the Scottish Parliament 7th June 2002
Coming into force 1st July 2002

The Scottish Ministers, in exercise of the powers conferred by sections 6(4), 16(1)(a) and (f), 17(2), 26(1)(a) and (3) and 48(1) of the Food Safety Act 1990, and of all other powers enabling them in that behalf, having had regard, in accordance with section 48(4A) of that Act, to relevant advice given by the Food Standards Agency, and after consultation in accordance with section 48(4) and (4B) of that Act, hereby make the following Regulations:
1990 c. 16; section 6(4) was amended by the Deregulation and Contracting Out Act 1994 (c. 40), Schedule 9, paragraph 6 and by the Food Standards Act 1999 (c. 28) (“the 1999 Act”), Schedule 5, paragraph 10(3); sections 16(1) and 48(1) were amended by the 1999 Act, Schedule 5, paragraph 8; section 17(2) was amended by the 1999 Act, Schedule 5, paragraphs 8 and 12; section 26(3) was amended by the 1999 Act, Schedule 6; amendments made by Schedule 5 to the 1999 Act shall be taken as pre-commencement enactments for the purposes of the Scotland Act 1998 (c. 46) by virtue of section 40(2) of the 1999 Act. The functions of the Secretary of State were transferred to the Scottish Ministers by virtue of section 53 of the Scotland Act 1998.
Section 48(4A) was inserted by paragraph 21 of Schedule 5 to the Food Standards Act 1999.
Section 48(4B) was inserted by paragraph 21 of Schedule 5 to the Food Standards Act 1999.

Citation, commencement and extent
1. (1) These Regulations may be cited as the Contaminants in Food (Scotland) Regulations 2002 and shall come into force on 1st July 2002.
(2) These Regulations shall extend to Scotland only.

Interpretation
2. (1) In these Regulations–
“the Act” means the Food Safety Act 1990;
“the Commission Regulation” means Commission Regulation (EC) No. 466/2001 setting maximum levels for certain contaminants in foodstuffs as amended by Council Regulation (EC) No. 2375/2001, Commission Regulation (EC) No. 221/2002, Commission Regulation (EC) No. 257/2002, Commission Regulation (EC) No. 472/2002 as corrected by a corrigendum published on 23rd March 2002 and Commission Regulation (EC) No. 563/2002;
O.J. No. L 77, 16.3.01, p.1.
O.J. No. L 321, 6.12.01, p.1.
O.J. No. L 37, 7.2.02, p.4.
O.J. No. L 41, 13.3.02, p.12.
O.J. No. L 75, 16.3.02, p.18.
O.J. No. L 80, 23.3.02, p.42.
O.J. No. L 86, 3.4.02, p.5.
“Directive 85/591/EEC” means Council Directive 85/591/EEC concerning the introduction of Community methods of sampling and analysis for the monitoring of foodstuffs intended for human consumption;
O.J. No. L 372, 31.12.85, p.50.
“Directive 93/99/EEC” means Council Directive 93/99/EEC on the subject of additional measures concerning the official control of foodstuffs;
O.J. No. L 290, 24.11.93, p.14.
“Directive 98/53/EC” means Commission Directive 98/53/EC laying down the sampling methods and the methods of analysis for the official control of the levels for certain contaminants in foodstuffs as amended by Commission Directive 2002/27/EC;
O.J. No. L 201, 17.7.98, p.93.
.J. No. L 75, 16.3.02, p.44.
“Directive 2001/22/EC” means Commission Directive 2001/22/EC laying down the sampling methods and the methods of analysis for the official control of the levels of lead, cadmium, mercury and 3–MCPD in foodstuffs, as corrected by Commission Decision 2001/873/EC;
O.J. No. L 77, 16.3.01, p.14.
O.J. No. L 325, 8.12.01, p.34.
“Directive 2002/26/EC” means Commission Directive 2002/26/EC laying down sampling methods and the methods of analysis for the official control of the levels of ochratoxin A in foodstuffs;
O.J. No. L 75, 16.3.02, p.38.
“EEA Agreement” means the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 as adjusted by the Protocol signed at Brussels on 17th March 1993; and
“EEA State” means a State which is a Contracting Party to the EEA Agreement.
(2) Other expressions used in these Regulations have the same meaning as in the Commission Regulation.

Offences and penalties
3. (1) Subject to regulations 8 and 9, a person shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale if–
(a) before 1st January 2005–
(i) that person places on the market any food (other than authorised spinach or authorised lettuce) which is covered by, but fails to meet the requirements of, Article 1.1, 2.1, 2.2 or 4.1 of the Commission Regulation, as read with Articles 1.2 and 4.3 of the Commission Regulation; or
(ii) that person contravenes Article 2.3, 4.2 or 4a of the Commission Regulation;
(b) on or after 1st January 2005–
(i) that person places on the market any food (other than authorised spinach) which is covered by, but fails to meet the requirements of, Article 1.1, 2.1, 2.2 or 4.1 of the Commission Regulation, as read with Articles 1.2 and 4.3 of the Commission Regulation; or
(ii) that person contravenes Article 2.3, 4.2 or 4a of the Commission Regulation; or
(c) that person knowingly contravenes or fails to comply with the requirements of a notice given under section 9(2)(a) of the Act as applied for the purposes of these Regulations by regulation 7.
(2) For the purposes of this regulation–
(a) “authorised spinach” means spinach of the kind specified in point 1.1 of Section 1 of Annex I to the Commission Regulation, which is grown in the United Kingdom in accordance with the proviso to Article 3.1 of the Commission Regulation and is intended for consumption in the United Kingdom; and
(b) “authorised lettuce” means lettuce of the kind specified in point 1.3 or in point 1.4 of Section 1 of Annex I to the Commission Regulation, which is grown in the United Kingdom in accordance with the proviso to Article 3.1 of the Commission Regulation and is intended for human consumption in the United Kingdom.

Enforcement
4. Each food authority shall enforce and execute the provisions of these Regulations within its area.

Sampling, analysis and modification of section 29 of the Act
5. (1) In its application to the taking of a sample of any food specified in Section 1, 2, 3 or 4 of Annex I to the Commission Regulation, section 29 of the Act shall be modified so as to limit the power to take samples under subsections (b) and (d) of that section to the taking of samples in accordance with the methods of taking samples described or referred to–
(a) (subject to the requirement specified in paragraph (2)) in the Annex to Commission Directive 79/700/EEC establishing Community methods of sampling for the official control of pesticide residues in and on fruit and vegetables where the food concerned is of a description specified in Section 1 of Annex I to the Commission Regulation and to the sampling of which food that Directive applies pursuant to Article 1.3 of the Commission Regulation;
O.J. No. L 207, 15.8.79, p.26.
(b) in Annex I to Directive 98/53/EC where the food concerned is of a description specified in Section 2 of Annex I to the Commission Regulation and to the sampling of which food that Directive applies pursuant to Article 1.3 of the Commission Regulation;
(c) in Annex I to Directive 2002/26/EC where the food concerned is of a description specified in Section 2 of Annex I to the Commission Regulation and to the sampling of which food that Directive applies pursuant to Article 1.3 of the Commission Regulation; and
(d) in Annex I to Directive 2001/22/EC where the food concerned is of a description specified in Section 3 or 4 of Annex I to the Commission Regulation and to the sampling of which food that Directive applies pursuant to Article 1.3 of the Commission Regulation.
(2) The requirement referred to in paragraph (1)(a) is that, in the case of lettuce of the kind specified in point 1.3 or 1.4 of Section 1 of Annex I to the Commission Regulation, the minimum number of units required for each laboratory sample shall be ten.
(3) Where, pursuant to section 29(b) or (d) of the Act as modified by paragraph (1), an authorised officer has taken a sample of any food to which paragraph (1)(b) applies, the authorised officer 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) any 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 Directive 85/591; and
(ii) meet the criteria specified in paragraph 4.3 of Annex II to Directive 98/53/EC as read with the notes to that paragraph;
(c) any analysis is carried out by a laboratory which complies with Directive 93/99/EEC; and
(d) the reporting of the results 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.
(4) Where, pursuant to section 29(b) or (d) of the Act as modified by paragraph (1), an authorised officer has taken a sample of food to which paragraph (1)(c) applies, the authorised officer shall ensure that–
(a) the sample is prepared in accordance with paragraphs 1 to 3 of Annex II to Directive 2002/26/EC;
(b) any analysis of the sample is carried out in accordance with methods of analysis which–
(i) comply with paragraphs 1 and 2 of the Annex to Directive 85/591/EEC; and
(ii) meet the criteria specified in paragraph 4.3 of Annex II to Directive 2002/26/EC as read with the notes to that paragraph;
(c) any analysis is carried out by a laboratory which complies with Directive 93/99/EEC; and
(d) the reporting of the results of the analysis of that sample–
(i) makes use of the definitions in paragraph 4.1 of Annex II to Directive 2002/26/EC; and
(ii) is in accordance with paragraph 4.4 of that Annex.
(5) Where, pursuant to section 29(b) or (d) of the Act as modified by paragraph (1), an authorised officer has taken a sample of food to which paragraph (1)(d) applies, the authorised officer shall ensure that–
(a) the sample is prepared in accordance with paragraphs 1 and 2 of Annex II to Directive 2001/22/EC, as read, in the case of paragraph 2, with the note to that paragraph;
(b) any analysis of the sample is carried out in accordance with methods of analysis which–
(i) in so far as practicable, comply with paragraphs 1 and 2 of the Annex to Directive 85/591/EEC;
(ii) in the case of analysis for lead (other than in wine), mercury or cadmium, meet the criteria specified in paragraph 3.3.1 of Annex II to Directive 2001/22/EC;
(iii) in the case of analysis for lead in wine, comply with the second sub-paragraph of paragraph 3.2 of Annex II to Directive 2001/22/EC; and
(iv) in the case of analysis for 3–MCPD, meet the criteria specified in paragraph 3.3.2 of Annex II to Directive 2001/22/EEC as read with the note to that paragraph;
(c) any analysis of the sample is carried out by a laboratory which complies with Directive 93/99/EEC;
(d) any analysis is carried out in such a way as to comply with the first and second sub-paragraphs of paragraph 3.4 of Annex II to Directive 2001/22/EC, as read in the case of the second sub-paragraph with the note to that sub-paragraph; and
(e) the reporting of the results of the analysis of that sample–
(i) makes use of the definitions in paragraph 3.1 of Annex II to Directive 2001/22/EC as read with the note to that paragraph; and
(ii) is in accordance with the third sub-paragraph of paragraph 3.4 and paragraph 3.6 of Annex II to Directive 2001/22/EC.

Defence in relation to exports
6. In any proceedings for an offence consisting of a contravention of regulation 3 it shall be a defence for the accused to prove–
(a) that the food in respect of which the offence is alleged to have been committed was intended for export to a country which has legislation analogous to these Regulations and that it complies with that legislation; and
(b) in the case of export to an EEA State, that the legislation complies with the Commission Regulation.

Application of various sections of the Act
7. (1) The following provisions of the Act shall apply for the purposes of these Regulations and any reference in those provisions to the Act or Part thereof shall be construed as a reference to these Regulations:–
(a) section 3 (presumption that food intended for human consumption);
(b) section 20 (offences due to fault of another person);
(c) section 21 (defence of due diligence), as it applies for the purposes of section 8, 14 or 15 of the Act;
(d) section 30(8) (which relates to documentary evidence);
(e) section 33 (obstruction etc. of officers);
(f) section 35(1) to (3) (punishment of offences) in so far as it relates to offences under section 33(1) and (2) as applied by paragraph (e);
(g) section 36 (offences by bodies corporate);
(h) section 36A (offences by Scottish partnerships); and
(i) section 44 (protection of officers acting in good faith).
(2) Subject to paragraphs (3) and (4), 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 may at all reasonable times inspect any food intended for human consumption which–
(a) has been sold or is offered or exposed for sale; or
(b) is in the possession of, or has been deposited with or consigned to, any person for the purpose of sale or of preparation for sale,
and subsections (2) to (7) below shall apply where, on such an inspection, it appears to the authorised officer that the placing on the market of any food (other than authorised spinach or authorised lettuce) contravenes regulation 3(1)(a)(i) of the Contaminants in Food (Scotland) Regulations 2002 or that the placing on the market of any food (other than authorised spinach) contravenes regulation 3(1)(b)(i) of those Regulations.
(2) The authorised officer may either–
(a) give notice to the person in charge of the food that, until the notice is withdrawn, the food or any specified portion of it–
(i) is not to be used for human consumption; and
(ii) either is not to be removed or is to be removed to a place at which there are facilities to carry out the sampling required by Directive 98/53/EC, Directive 2001/22/EC or Directive 2002/26/EC, as appropriate; or
(b) seize the food and remove it in order to have it dealt with by a sheriff,
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.
(3) Where the authorised officer exercises the powers conferred by sub-section (2)(a) above, that officer shall, as soon as is reasonably practicable and in any event within 21 days, determine whether or not that officer is satisfied that the food complies with the requirements of regulation 3(1)(a)(i) or (b)(i) of the Contaminants in Food (Scotland) Regulations 2002, as appropriate and–
(a) if the authorised officer is so satisfied, shall forthwith withdraw the notice; or
(b) if the authorised officer is not so satisfied, shall seize the food and remove it in order to have it dealt with by a sheriff.
(4) Where an authorised officer exercises the powers conferred by subsection (2)(b) or (3)(b) above, the authorised officer shall inform the person in charge of the food of the intention to have it dealt with by a sheriff and any person who under regulation 3(1)(a)(i) or (b)(i) of the Contaminants in Food (Scotland) Regulations 2002 might be liable to a prosecution in respect of the food shall, if that person attends before the sheriff by whom the food falls to be dealt with, be entitled to be heard and to call witnesses.
(5) If it appears to a sheriff, on the basis of such evidence as the sheriff considers appropriate in the circumstances, that any food falling to be dealt with under this section fails to comply with the requirements of regulation 3(1)(a)(i) or (b)(i) of the Contaminants in Food (Scotland) Regulations 2002, the sheriff shall condemn the food and order–
(a) the food to be destroyed or to be so disposed of as to prevent it 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 food.
(6) If a notice under subsection (2)(a) above is withdrawn, or the sheriff by whom any food falls to be dealt with under this section refuses to condemn it, the food authority shall compensate the owner of the food for any depreciation in its value resulting from the action taken by the authorised officer.
(7) Any disputed question as to the right to or the amount of any compensation payable under subsection (6) above shall be determined by a single arbiter appointed, failing agreement between the parties, by the sheriff.”.

(3) The expressions “placing on the market”, “authorised spinach”, “authorised lettuce”, “Directive 98/53/EC”, “Directive 2001/22/EC” and “Directive 2002/26/EC”, 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).

Transitional provisions
8. Regulation 3(1)(a)(i), (b)(i) and (c)(i) shall not apply in relation to any food lawfully placed on the market in the European Community before 5th April 2002 which is covered by, but fails to meet the requirements of, Article 1.1, 2.1 or 2.2 of the Commission Regulation, as read with Article 1.2 of the Commission Regulation, to the extent that the failure consists in the food being placed on the market containing a contaminant specified in Section 3 or 4 of Annex I to the Commission Regulation at a level higher than that specified in the second column of the Section concerned.
9. Regulation 3(1)(a)(ii), (b)(ii) and (c)(ii) shall not apply in relation to any contravention of Article 2.3 of the Commission Regulation, to the extent that the contravention consists in the use as a food ingredient, for the production of a compound foodstuff, of food lawfully placed on the market in the European Community before 5th April 2002 and containing a contaminant specified in Section 3 or 4 of Annex I to the Commission Regulation at a level higher than that specified in the second column of the Section concerned.

Consequential Amendments
10. In Schedule 1 to the Food Safety (Sampling and Qualifications) Regulations 1990 (provisions to which these Regulations do not apply) for the entry relating to the Contaminants in Food Regulations 1997 there shall be substituted the following entry:–

“The Contaminants in Food (Scotland) Regulations 2002 (to the extent that a sample falls to be prepared and analysed in accordance with regulation 5 thereof)	S.S.I. 2002/”.

S.I. 1990/2463; the relevant amending instrument is S.I. 1999/1603.

Revocations
11. The instruments specified in columns 1 and 2 of the Schedule shall be revoked to the extent specified in column 3 of the Schedule.
MARY MULLIGAN
Authorised to sign by the Scottish Ministers
St Andrew’s House,
Edinburgh
6th June 2002

SCHEDULE REVOCATIONS
Regulation 11
Column 1	Column 2	Column 3
Instruments revoked	References	Extent of Revocation
The Lead in Food (Scotland) Regulations 1979	S.I.1979/1641	The whole Regulations
The Food Safety Act 1990 (Consequential Modifications) (Scotland) Order 1990	S.I.1990/2625	The reference to the Lead in Food (Scotland) Regulations 1979 in column 2 of Part I of Schedule 1 and the corresponding entries in columns 1 and 3 of that Part; The reference to the Lead in Food (Scotland) Regulations 1979 in column 2 of Schedule 2 and the corresponding entry in column 1 of that Schedule; The reference to the Lead in Food (Scotland) Regulations 1979 in column 2 of Part II of Schedule 3 and the corresponding entries in columns 1, 3 and 4 of that Part; The reference to the Lead in Food (Scotland) Regulations 1979 in column 2 of Schedule 4 and the corresponding entries in columns 1 and 3 of that Schedule; The reference to the Lead in Food (Scotland) Regulations 1979 in column 2 of Schedule 6 and the corresponding entries in columns 1 and 3 of that Schedule; The reference to the Lead in Food (Scotland) Regulations 1979 in column 2 of Schedule 8 and the corresponding entries in columns 1 and 3 of that Schedule.
The Food Safety (Exports) Regulations 1991	S.I.1991/1476	The reference to the Lead in Food (Scotland) Regulations 1979 in column 2 of Schedule 2 and the corresponding entries in columns 1 and 3 of that Part
The Flavourings in Food Regulations 1992	S.I.1992/1971	Regulation 11 in so far as it amends the Lead in Food (Scotland) Regulations 1979
The Colours in Food Regulations 1995	S.I.1995/3124	The reference to the Lead in Food (Scotland) Regulations 1979 in column 1 of Schedule 6 and the corresponding entries in columns 2 and 3 of that Schedule
The Food (Miscellaneous Revocations and Amendments) Regulations 1995	S.I.1995/3267	The reference to the Lead in Food (Scotland) Regulations 1979 in column 1 of the Schedule and the corresponding entries in columns 2 and 3 thereof
The Contaminants in Food Regulations 1997	S.I.1997/1499	The whole Regulations
The Contaminants in Food (Amendment) Regulations 1999	S.I.1999/1603	The whole Regulations
The Contaminants in Food Amendment (Scotland) Regulations 1999	S.S.I. 1999/171	The whole Regulations

(This note is not part of the Regulations)
These Regulations, which extend to Scotland only, revoke and re-enact with changes the Contaminants in Food Regulations 1997.
These Regulations–
(a) make provision for the enforcement and execution of Commission Regulation (EC) No. 466/2001 setting maximum levels for certain contaminants in foodstuffs (“the Commission Regulation”) as amended by Council Regulation (EC) No. 2375/2001, Commission Regulation (EC) No. 221/2002, Commission Regulation (EC) No. 257/2002, Commission Regulation (EC) No. 472/2002 (as corrected by corrigendum published on 23rd March 2002) and Commission Regulation (EC) No. 563/2002; and
(b) implement the following Commission Directives–
(i) Commission Directive 98/53/EC laying down the sampling methods and methods of analysis for the official control of the levels for certain contaminants in foodstuffs;
(ii) Commission Directive 2001/22/EC laying down the sampling methods and the methods of analysis for the official control of the levels of lead, cadmium, mercury and 3-MPCD in foodstuffs, as corrected by a Commission Decision of 4th December 2001;
(iii) Commission Directive 2002/26/EC laying down the sampling methods and the methods of analysis for the official control of the levels of ochratoxin A in foodstuffs; and
(iv) Commission Directive 2002/27/EC amending Directive 98/53/EC laying down the sampling methods and the methods of analysis for the official control of the levels for certain contaminants in foodstuffs.
These Regulations–
(a) subject to transitional provisions (in regulations 8 and 9), provide that it is an offence to–
(i) place on the market certain foods if they contain contaminants of any kind specified in the Commission Regulation at levels exceeding those specified (subject to derogation applicable to certain types of lettuce and spinach);
(ii) use foods containing such contaminants at such levels as ingredients in the production of certain foods;
(iii) mix foods which comply with the maximum levels referred to above with foods which do not;
(iv) mix foods to which the Commission Regulation relates and which are intended for direct consumption with foods to which the Commission Regulation relates and which are intended to be sorted or otherwise treated prior to consumption; or
(v) detoxify by chemical treatments food not complying with the limits specified in the Commission Regulation (regulation 3);
(b) specify the enforcement authorities (regulation 4);
(c) prescribe sampling and analysis requirements in relation to foods subject to the Commission Regulation, and in so doing modify section 29 of the Food Safety Act 1990 so far as it applies to the taking of samples of the foods concerned (regulation 5);
(d) provide a defence in relation to exports in implementation of Articles 2 and 3 of Council Directive 89/397/EEC on the official control of foodstuffs, as read with the ninth recital to that Directive (regulation 6);
(e) provide for the application of specified provisions of the Food Safety Act 1990 for the purposes thereof (regulation 7);
(f) make consequential amendments to the Food Safety (Sampling and Qualifications) Regulations 1990 (regulation 10); and
(g) revoke specified Instruments (including the Contaminants in Food Regulations 1997) (regulation 11 and the Schedule).
A Regulatory Impact Assessment, which includes a compliance cost assessment of the effects which these Regulations would have on business costs, has been prepared in respect of these Regulations and a copy of it has been placed in the Scottish Parliament Information Centre. Copies may be obtained from the Food Standards Agency, 6th Floor, St Magnus House, 25 Guild Street, Aberdeen AB11 6NJ.