1990 No. 2488
FOOD
The Food Labelling (Amendment) Regulations 1990
Made 10th December 1990
Laid before Parliament 11th December 1990
Coming into force 1st January 1991

The Minister of Agriculture, Fisheries and Food, the Secretary of State for Health and the Secretary of State for Wales, acting jointly, in exercise of the powers conferred on them by sections 4(1), 6(4), 16(1)(e), 26(1)(a) and (3) and 48(1) of the Food Safety Act 1990 and of all other powers enabling them in that behalf, hereby make the following Regulations, after consultation in accordance with section 48 of the said Act with such organisations as appear to them to be representative of interests substantially affected by the Regulations:—
1990 c. 16.

1 Title, commencement, extent and interpretation
1 These Regulations may be cited as the Food Labelling (Amendment) Regulations 1990 and shall come into force on 1st January 1991.
2 These regulations extend to England and Wales.
3 In these Regulations—
“the Combined Nomenclature” means the codes given in Council Regulation (EEC) No. 2658/87 (as amended) on the tariff and statistical nomenclature and on the Common Customs Tariff; and
“the principal Regulations” means the Food Labelling Regulations 1984.
OJNo. L256, 7.9.87, p.1, as last amended by Commission Regulation (EEC) No. 3496/89, OJNo. L337, 21.11.89, p.5.
S.I.1984/1305, amended by S.I.1985/67, 71, 1987/1986, 1988/2112, 1989/768, 1990/607, amended by S.I.1990/2486 and 1990/2489.

Amendment of the principal Regulations
2 The principal Regulations shall be amended as specified in the following provisions of these Regulations and any reference in those provisions to any specified provision shall, unless the context requires otherwise, be taken to be a reference to the provision so specified in the principal Regulations.
3 For regulation 3(1) there shall be substituted the following paragraph—

“1 Subject to paragraph (2) of this regulation, these Regulations shall apply to cream and to food containing milk, but except as aforesaid they shall not apply to cows' milk.”

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4 For regulation 6(c) there shall be substituted the following paragraph—

“(c) the appropriate durability indication, that is to say—
(i) in the case of a food other than one specified in sub-paragraph (ii) of this paragraph, an indication of minimum durability;
(ii) in the case of a food which, from the microbiological point of view, is highly perishable and in consequence likely after a short period to constitute an immediate danger to human health, a “use by” date;”

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5 1 To the heading “Indication of minimum durability” preceding the heading to regulation 21 there shall be added the words “or “use by” date”.
2 At the end of regulation 21(2)(a) the word “and” shall be deleted.
3 In regulation 21(2)(b) there shall be inserted immediately after the words “three months” the words “but not more than 18 months” and at the end there shall be inserted the word “, and”.
4 Immediately following regulation 21(2)(b) there shall be inserted the following sub-paragraph—

“(c) in the case of a food which can reasonably be expected to retain its specific properties for more than 18 months it may be expressed either in terms of a month and year only or in terms of a year only, if (in either case) the words “best before” are replaced by the words “best before end”.”

5 Regulation 21(4) and (5) shall be deleted.
6 Immediately following regulation 21 there shall be inserted the following regulation—

“21A Form of indication of “use by” date
1 Where a “use by” date is required in respect of a food it shall be indicated by—
(a) the words “use by” followed by the date up to and including which the food, if properly stored, is recommended for use, and
(b) any storage conditions which need to be observed.
2 The “use by” date shall be expressed in terms either of a day and a month (in that order) or of a day, a month and a year (in that order).
3 The date up to and including which a food required to bear a “use by” date is recommended for use may appear separately from the words “use by”, provided that those words are followed by a reference to the place where the date appears.”

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7 For regulation 22 there shall be substituted the following regulation—

“22 Foods which need not bear an indication of minimum durability or a “use by” date
The following foods need not be marked or labelled with an indication of minimum durability or a “use by” date—
(a) fresh fruit and vegetables (including potatoes but not including sprouting seeds, legume sprouts and similar products) which have not been peeled or cut into pieces;
(b) wine, liqueur wine, sparkling wine, aromatized wine and any similar drink obtained from fruit other than grapes and any drink made from grapes or grape musts and coming within codes 2206 00 91, 2206 00 93 and 2206 00 99 of the Combined Nomenclature;
(c) any drink with an alcoholic strength by volume of 10 per cent or more;
(d) any soft drink, fruit juice or fruit nectar or alcoholic drink, sold in a container containing more than 5 litres and intended for supply to catering establishments;
(e) flour confectionery and bread which are normally consumed within 24 hours of their preparation;
(f) vinegar; (g) cooking and table salt;
(h) solid sugar and products consisting almost solely of flavoured or coloured sugars;
(i) chewing gums and similar products;
(j) edible ices in individual portions;
(k) until 20th June 1992—
(i) deep-frozen food,
(ii) cheese which is intended to ripen completely or partially in its packaging,
(iii) any food which, if properly stored, can be expected to retain its specific properties for more than eighteen months.”

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8 For regulation 27 there shall be substituted the following regulation—

“27 Small packages and certain indelibly marked bottles
1 Subject to paragraphs (2) and (3) of this regulation, any prepacked food, either contained in an indelibly marked glass bottle intended for re-use and having no label, ring or collar, or the largest surface of whose packaging has an area of less than ten square centimetres, need not by virtue of these Regulations be marked or labelled with any of the particulars specified in regulation 6 except the name of the food and, unless the food is not required to be marked or labelled with such an indication, an indication of minimum durability or, as the case may be, a “use by” date.
2 This regulation does not apply to any food to which regulation 24, 25, 28, 29 or 31A applies.
3 Until 1st January 1997 any bottle referred to in paragraph (1) of this regulation need not be marked or labelled with an indication of minimum durability or, as the case may be, a “use by” date.”

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9 For regulation 32(2)(d) there shall be substituted the following sub-paragraph—

“(d) in relevant trade documents furnished on or before delivery of the food and, in respect of the particulars required by regulation 6(a), (c) and (e), on the external packaging in which that food is sold.”

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10 1 In regulation 35(1) and (2) there shall be inserted immediately after the words “of minimum durability”, on each occasion that these occur, the words “or, as the case may be, of a “use by” date”.
2 Immediately following regulation 35(2) there shall be inserted the following paragraph—

“3 Paragraphs (1) and (2) of this regulation shall not apply to any food sold in a bottle or packaging where such bottle or packaging is the subject of regulation 27.”

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11 At the end of regulation 40(e) the word “or” shall be inserted and immediately following regulation 40(e) there shall be inserted the following paragraphs—

“(f) sells any food after the date shown in a “use by” date relating to it, or
(g) being a person other than whichever of the manufacturer, packer or seller established within the European Economic Community was originally responsible for so marking the food, alters the indication of minimum durability or, as the case may be, the “use by” date relating to that food,”

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12 For regulation 41 there shall be substituted the following regulation—

“41 Enforcement
1 Subject to paragraph (2) below, each food authority shall enforce and execute these Regulations in its area.
2 Each port health authority shall enforce and execute these Regulations in its district in relation to imported food.
3 For the purposes of this regulation “food authority” shall mean—
(a) for each non-metropolitan county, metropolitan district and London borough, the council of that county, district or borough, and for the City of London and the Inner Temple and the Middle Temple, the Common Council of the City of London;
(b) as respects a non-metropolitan district, in relation to regulation 40(f) only, and in addition to any other food authority, severally, the council of that district.”

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13 Immediately after regulation 41 there shall be inserted the following regulation—

“41A Defence in cases of alteration of appropriate durability indication
In any proceedings for an offence under regulation 40(g) it shall be a defence for the person charged to prove that each alteration in respect of which the offence is alleged was effected under the written authorisation of a person capable of effecting that alteration without contravention of that provision.”

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14 In Schedule 7 there shall be inserted after the entry concerning the description “dealcoholised” and the conditions applying thereto the following entry:—

“In column 1(Words and descriptions)	In column 2(Conditions)
The description “low alcohol” or any other word or description which implies that the drink being described is low in alcohol	Shall not be applied to any alcoholic drink unless— (a) the drink has an alcoholic strength by volume of not more than 1.2 per cent, and (b) the drink is marked or labelled with an indication of its maximum alcoholic strength (in one of the forms specified in regulation 31(1) immediately preceded by the words “not more than”).”

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15 Transitional provision
1 It shall not be an offence under the principal Regulations to sell or advertise for sale any alcoholic drink described as “low alcohol” (or bearing any other word or description which implies that the drink being described is low in alcohol) in contravention of the provisions of regulation 38 of the principal Regulations and Schedule 7 thereto (as herein amended) where such drink was prepacked and labelled before the coming into force of these Regulations.
2 It shall not be an offence under the principal Regulations to sell before 1st April 1991 any food which is not marked or labelled with the appropriate durability indication referred to in regulation 6(c) in circumstances where that food is marked or labelled in accordance with what would have been the requirements of regulation 21 had these Regulations not come into force.
In witness whereof the official Seal of the Minister of Agriculture, Fisheries and food is hereunto affixed on 7th December 1990.
John Selwyn Gummer Minister of Agriculture, Fisheries and Food
Stephen Dorrell Parliamentary Under-Secretary of State for Health 10th December 1990
David Hunt Secretary of State for Wales 7th December 1990

(This note is not part of the Regulations)
These Regulations, which apply to England and Wales only, further amend the Food Labelling Regulations 1984 (“the principal Regulations”). They implement provisions of Council Directive No.79/112/EEC (OJNo. L33, 8.2.79, p.1) on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs as added or varied by Council Directive No.89/395/EEC (OJNo. L186, 30.6.89, p. 17).
The Regulations delete national provisions permitting the use of a “sell by” date and introduce provisions requiring a “use by” date for microbiologically highly perishable foodstuffs (regulations 3 to 10). New offences are introduced for selling foods bearing an expired “use by” date and for anyone other than the person originally responsible for applying the date mark to change it (regulations 11 and 13). Regulation 7 removes the exemption from date marking for deep frozen food, certain cheeses and long-life foods with effect from 20th June 1992. Regulation 8 extends the current limited labelling requirements for small packages to include indelibly marked glass bottles intended for re-use. Regulation 9 requires certain information to be given on the packaging of the food if trade documents are used to convey labelling information. The Regulations also restrict the use of the description “low alcohol” (or any other word or description implying a low alcoholic content) to alcoholic drinks having an alcoholic strength by volume of not more than 1.2 per cent (regulation 14). In addition the principal Regulations are applied to milk other than cows' milk (regulation 3).
The Regulations come into force on 1st January 1991 but there are transitional provisions establishing that no offence is committed in selling or advertising for sale alcoholic drinks described as “low alcohol” (or bearing any other word or description implying a low alcoholic content) but not meeting the new conditions where such drinks were prepacked and labelled before the coming into force of the Regulations and permitting continuation of the observance of previous labelling conditions on durability until the end of March 1991 following which “use by” will become compulsory for microbiologically highly perishable foods (regulation 15).