The Marketing of Horticultural Produce (Scotland) Regulations 2009

Explanatory Note

(This note is not part of the Regulations)

These Regulations provide a new statutory framework for the enforcement of the Community marketing rules in the fresh fruit and vegetable sector provided for in Articles 113 and 113a of Council Regulation (EC) No 1234/2007 (O.J. No. L 299, 16.11.2007, p.1) establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation), and contained in Title II of Commission Regulation (EC) No. 1580/2007 (O.J. No. L 350, 31.12.2007, p.1) laying down implementing rules of Council Regulations (EC) No. 2200/96, (EC) No. 2201/96 and (EC) No. 1182/2007 in the fruit and vegetable sector. In particular, they implement the revisions made to the Community marketing rules introduced by Commission Regulation (EC) No. 1221/2008 (O.J. No. L 336, 13.12.2008, p.1) amending Regulation (EC) No. 1580/2007 laying down implementing rules of Council Regulations (EC) No. 2200/96, (EC) No. 2201/96 and (EC) No. 1182/2007 in the fruit and vegetable sector as regards marketing standards.

These Regulations revoke the Grading of Horticultural Produce (Amendment) Regulations 1973 (S.I. 1973/22), the Grading of Horticultural Produce (Forms of Labels) Regulations 1982 (S.I. 1982/387) and the Grading of Horticultural Produce (Amendment) Regulations 1983 (S.I. 1983/1053).

They disapply the Agriculture and Horticulture Act 1964 (c. 28) and the Horticultural Produce Act 1986 (c. 20) which modifies the 1964 Act. They also disapply the Agricultural Produce (Grading and Marking) Acts 1928 and 1931 (c. 19 and c.40 respectively) and the Agricultural Marketing Act 1958 (c. 47) from the Community marketing rules in the fresh fruit and vegetable sector.

These Regulations make the failure to comply with Article 113a(3) of Council Regulation (EC) No. 1234/2007, and the provisions of Commission Regulation (EC) No. 1580/2007 mentioned in the Schedule, an offence. They contain some additional offences necessary for the effective enforcement of the Community marketing rules (Regulation 16 and Schedule 2).

They exercise the derogation in Article 3(3) of Commission Regulation (EC) No. 1580/2007 (Regulation 16(2)). This derogation exempts products presented for retail sale to consumers for their personal use from the specific marketing standards provided they are labelled “product intended for processing”, or with other equivalent wording.

Regulation 14 provides that powers in the Regulations cannot be exercised on premises used wholly as a dwellinghouse. The Regulations confer powers of entry (Regulation 4) and other powers (Regulation 5), including seizure powers which require authorised officers to fulfil certain duties in relation to any items seized. They contain powers to affix labels indicating non compliance with the Community marketing rules (regulations 6, 7 and 8) and at the same time to serve notice containing detailed reasons for the non compliance.

They confer power to control the movement of horticultural produce (regulation 10) and the power to affix a stop notice label warning of its exercise (regulation 12). There is provision for giving consent to the movement of controlled horticultural produce when certain conditions are met (regulation 13). There are provisions on offences relating to the unlawful movement of controlled horticultural produce, to unlawfully removing stop notice labels and relating to failure to comply with an undertaking given in relation to controlled horticultural produce (regulation 15).

These Regulations make obstruction an offence (regulation 18). They also contain provisions relating to the commission of an offence due to the fault of another person (regulation 19). They provide for defences of acting with lawful authority or exercising due diligence and taking reasonable precautions (regulation 20), and for the commission of offences by bodies corporate (regulation 21). They provide for penalties for offences (regulation 22).