The Organic Products Regulations 2004

Title and commencement

1.  These Regulations may be cited as the Organic Products Regulations 2004 and shall come into force on 19th July 2004.

Interpretation

2.—(1) In these Regulations—

“authorised officer” means any person (whether or not an officer of a local authority) who is authorised by a local authority in writing, either generally or specially, to act in matters arising under these Regulations;

“business” includes the undertaking of a canteen, club, school, hospital or institution, whether carried out for profit or not and any undertaking or activity carried on by a public or local authority;

“the Commission Regulations” means the Commission Regulations listed in Schedule 1;

“Commission Regulation 1452/2003” means Commission Regulation (EC) No. 1452/2003 maintaining the derogation provided for in Article 6(3)(a) of the Council Regulation with regard to certain species of seed and vegetative propagating material and laying down procedural rules and criteria relating to that derogation(1);

“the Council Regulation” means Council Regulation (EEC) No. 2092/91(2) on organic production of agricultural products and indications referring thereto on agricultural products and foodstuffs, as last amended by Council Regulation (EC) No 392/2004(3);

“the database” means the computerised database, established under Article 6(1) of Commission Regulation 1452/2003, listing varieties of seed and seed potatoes obtained by the organic production method prescribed in Article 6(2) of the Council Regulation which are available in the United Kingdom;

“holding” has the meaning given in Article 2(b) of Council Regulation (EC) No. 1782/2003(4) establishing common rules for direct support schemes;

“importer” means any person who imports from a third country any products referred to in Article 1 of the Council Regulation with a view to the subsequent marketing of such products;

“justice of the peace”, in relation to Scotland, means a full justice as defined by section 9 of the District Courts (Scotland) Act 1975(5);

“local authority” means—

(a)

in relation to England—

(i)

for each non-metropolitan county, metropolitan district, and London borough, the council of that county, district or borough, and

(ii)

for the City of London and the Inner Temple and the Middle Temple, the Common Council of the City of London;

(b)

in relation to Wales, as respects each county or county borough, the council of that county or county borough;

(c)

in relation to Scotland, as respects each local authority area, the council for that area constituted under section 2 of the Local Government etc. Scotland Act 1994(6); and

(d)

in relation to Northern Ireland, each district council, and for this purpose, “district council” has the meaning given to it in section 44 of the Interpretation Act (Northern Ireland) 1954(7);

“notification” means a notification of the information specified in Annex IV to the Council Regulation made by an operator under Article 8(1)(a) of that Regulation;

“organic product” means a product referred to in Article 1(1) of the Council Regulation;

“private inspection body” means an inspection body holding a current approval from the Secretary of State under Article 9 of the Council Regulation;

“public analyst”, except in relation to Northern Ireland, has the same meaning as in the Food Safety Act 1990(8) and, in relation to Northern Ireland, has the same meaning as in the Food Safety (Northern Ireland) Order 1991(9);

“the Soil Association” means the Soil Association Limited, a company limited by guarantee and registered charity No. 206862 of Bristol House, 40-56 Victoria Street, Bristol BS1 6BY;

“specified Community provisions” means those provisions of the Council Regulation which are specified in column 1 of Schedule 2, as read with—

(a)

any supplementary provisions specified in column 2 of that Schedule;

(b)

Article 3 of Council Regulation (EEC) No. 1804/1999(10) supplementing Council Regulation (EEC) No. 2092/91 to include livestock production; and

(c)

any additional provisions thereto contained in the livestock standards set out in the Compendium of UK Organic Standards, May 2004 Edition, published by the Department for Environment, Food and Rural Affairs.

(2) Other expressions used in these Regulations have the same meaning as in the Council Regulation, the Commission Regulations or Commission Regulation 1452/2003.

Designation of authority for the receipt of notifications, operation of inspection system, establishment of database and information to local authorities

3.—(1) The Secretary of State is designated as—

(a) the inspection authority responsible for the operation of the inspection system referred to in Article 9(1) of the Council Regulation;

(b) the authority responsible for the approval and supervision of private inspection bodies, in accordance with Articles 9(4) to (9) and (12) and 10(3) of the Council Regulation; and

(c) the competent authority for the purposes of—

(i) Articles 8, 9, 10(3)(b) and 11(6) of, and Annex I to, the Council Regulation, and

(ii) Articles 5(4), 8(2),11, 12 and 13 of Commission Regulation 1452/2003.

(2) Where the Secretary of State or a private inspection body has reason to believe that any person is using, in any local authority area, any indication which the Secretary of State and the private inspection body are required by Article 9(9) or 10(3) of the Council Regulation to prevent him from using—

(a) the Secretary of State or the private inspection body, as appropriate, shall notify in writing that use to the local authority of that area;

(b) where such notification is given by a private inspection body, it shall also notify in writing that use to the Secretary of State; and

(c) the Secretary of State or the private inspection body, as the case may be, giving such notification shall give the local authority any information which the local authority may reasonably require for the purpose of enforcement under regulation 10 of these Regulations in relation to the use of that indication.

Additional requirement relating to the labelling of organic products

4.  For the purposes of Article 5(1)(d),(3)(g),(5)(e) and (5a)(h) of the Council Regulation, the operator shall include on the labelling a reference to the code number of the inspection authority or private inspection body to which he is subject.

Manager of the database

5.  The Soil Association is designated pursuant to Article 6(2) of Commission Regulation 1452/2003 as manager of the database.

Registration fees

6.—(1) The Soil Association shall, subject to paragraph (2), charge a supplier a fee in respect of any expenses reasonably incurred by it in registering and maintaining in the database information given to it by a supplier for the purposes of Articles 7(1) and 9(1) of Commission Regulation 1452/2003.

(2) The Soil Association may waive, in whole or in part, a fee payable under paragraph (1).

(3) The fee payable under paragraph (1) shall be specified in an invoice given to the supplier by the Soil Association, and any amount not paid in accordance with the invoice shall be payable on demand.

(4) In any proceedings for recovery of an amount under this regulation a certificate of the Soil Association stating the amount recoverable shall be evidence of the amount in question.

Fees for ingredient authorisations and import authorisations

7.—(1) The Secretary of State may charge an operator a fee in respect of any expenses reasonably incurred by her in—

(a) issuing, pursuant to Article 5(3)(b) and (5a)(b) of the Council Regulation, a provisional authorisation for an ingredient of agricultural origin not obtained by organic production to be included in an organic product; or

(b) renewing any such authorisation.

(2) The Secretary of State may charge an importer a fee in respect of any expenses reasonably incurred by her in—

(a) issuing, pursuant to Article 11(6)(a) of the Council Regulation, an authorisation to market products imported from a third country that is not included in the list referred to in Article 11(1)(a) of that Regulation; or

(b) varying or renewing any such authorisation.

(3) Any fee payable under paragraph (1) or (2) shall be notified to the operator or, as the case may be, the importer by the Secretary of State, and any amount not paid in accordance with such notification shall be payable on demand.

(4) In any proceedings for recovery of an amount under this regulation a certificate of the Secretary of State stating the amount recoverable shall be evidence of the amount in question.

Inspection system

8.—(1) Each private inspection body shall charge an operator a fee in respect of any expenses reasonably incurred by it in carrying out an inspection of the holding, premises or facilities of the operator.

(2) The fee payable under paragraph (1) shall be specified in an invoice given to the operator by the private inspection body and any amount not paid in accordance with the invoice shall be payable on demand.

(3) In any proceedings for recovery of an amount under this regulation a certificate of the private inspection body stating the amount recoverable shall be evidence of the amount in question.

(4) Where an operator has been unable to reach agreement with a private inspection body for the carrying out of an inspection, the Secretary of State shall, if so requested by the operator, take such steps as are necessary to procure that an inspection is carried out by such other private inspection body as may agree to do so.

(5) In this regulation, “inspection” means a precautionary or inspection measure described in Annex III to the Council Regulation.

Fees for approvals etc. of inspection bodies

9.—(1) Where an inspection body has applied to the Secretary of State for approval under Article 9 of the Council Regulation, the Secretary of State may charge that body a fee in respect of any expenses reasonably incurred by her in—

(a) inspecting the offices and facilities of the inspection body;

(b) considering the application, including ascertaining whether the requirements laid down in the conditions of European Standard 45011 (setting out general requirements for bodies operating product certification systems) are satisfied in respect of the inspection body and whether the training and competence of inspectors employed by that body is adequate; and

(c) where appropriate, issuing a certificate of approval.

(2) Where an inspection body has been approved under Article 9 of the Council Regulation, the Secretary of State may charge that body a fee in respect of any expenses reasonably incurred by her in carrying out, for the purposes of Article 9(6) of that Regulation—

(a) any further inspection of the offices and facilities of the inspection body;

(b) any inspection of the premises and facilities and, where appropriate, any holding of an operator; and

(c) any associated administrative work (including verification of the competence of the inspectors employed by that body).

(3) Any fee payable under paragraph (1) or (2) shall be specified in an invoice given by the Secretary of State to the inspection body concerned and any amount not paid in accordance with the invoice shall be payable on demand.

(4) In any proceedings for recovery of an amount under this regulation a certificate of the Secretary of State stating the amount recoverable shall be evidence of the amount in question.

(5) Any fee payable by an inspection body pursuant to paragraph (2) shall remain payable by it notwithstanding that its approval under Article 9 of the Council Regulation has subsequently been withdrawn by the Secretary of State.

Enforcement, offences and penalties

10.—(1) Each local authority shall enforce and execute within its area the specified Community provisions and regulation 4.

(2) Any person who contravenes or fails to comply with any of the specified Community provisions or regulation 4 shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(3) For the purposes of the enforcement and execution of the specified Community provisions and regulation 4, the supply in the course of a business of organic products, otherwise than on a sale, shall be deemed to be a sale of such products, and for those purposes sale shall include possession for sale, or offer or exposure for sale.

(4) For the purposes of such enforcement and execution in respect of products intended for human consumption within the meaning of Article 1(1)(b) of the Council Regulation, any such product commonly used for human consumption shall, if sold or offered, exposed or kept for sale, be presumed, until the contrary is proved, to have been sold for human consumption or, as the case may be, to have been, or to be, intended for sale for human consumption.

Procurement of samples

11.  An authorised officer may, for the purposes of ascertaining whether any offence under these Regulations has been committed, purchase or take samples of any organic product.

Analysis, testing and examination

12.—(1) If an authorised officer who has procured a sample of any organic product considers that it should be analysed, examined or tested, he shall submit such sample to be analysed, examined or tested, as the case may be, by the public analyst for the area in which it was procured or, if the office of the public analyst for the area is vacant, to the public analyst for some other area.

(2) The public analyst shall analyse, examine or test (or have analysed, examined or tested) as soon as practicable, any sample submitted to him in pursuance of this regulation.

(3) A public analyst who has analysed, examined or tested a sample shall give the person by whom it was submitted a certificate specifying the result of the analysis, examination or test.

(4) In any proceedings under these Regulations, the production by one of the parties—

(a) of a document purporting to be a certificate under paragraph (3); or

(b) of a document supplied to him by the other party as being a copy of such a certificate,

shall be sufficient evidence of the facts stated in it unless, in a case falling within sub-paragraph (a), the other party requires that the analyst shall be called as a witness.

(5) In any such proceedings, if a person charged or summonsed intends to produce a certificate of a public analyst or require, under paragraph (4), the analyst to be called as a witness, notice of his intention together with a copy of the certificate (if appropriate) shall be given to the other party, in writing, at least three clear days before the hearing or trial, and, if this requirement is not complied with, the court may adjourn the hearing or trial on such terms as it thinks proper.

Powers of entry

13.—(1) An authorised officer may, at all reasonable hours and on producing, if so required, a duly authenticated document showing his authority, enter any premises for the purposes of ascertaining whether there is or has been any contravention of, or failure to comply with, any of the specified Community provisions or regulation 4.

(2) If a justice of the peace, or in Scotland a justice of the peace or sheriff, on sworn information in writing, is satisfied that there is a reasonable ground for entry into any premises for any such purpose as is mentioned in paragraph (1) and either—

(a) that admission to the premises has been refused, or a refusal is apprehended, and that notice of the intention to apply for a warrant has been given to the occupier; or

(b) that an application for admission, or the giving of such a notice, would defeat the object of the entry, or that the case is one of urgency, or that the premises are unoccupied or the occupier is temporarily absent,

the justice or sheriff may by warrant signed by him authorise the authorised officer to enter the premises, if need be by reasonable force.

(3) Every warrant granted under this regulation shall continue in force for a period of one month.

(4) An authorised officer entering any premises by virtue of this regulation, or of a warrant issued under it, may take with him such other persons as he considers necessary, and on leaving any unoccupied premises which he has entered by virtue of such a warrant shall leave them as effectively secured against unauthorised entry as he found them.

(5) An authorised officer entering any premises by virtue of this regulation, or of a warrant issued under it, may inspect any records (in whatever form they are held) relating to a business dealing with any organic product and, where such records are kept by means of a computer—

(a) may have access to, and inspect and check the operation of, any computer and any associated apparatus or material which is or has been in use in connection with the records; and

(b) may reasonably require any person having charge of, or otherwise concerned with the operation of, the computer, apparatus or material to afford him such assistance as he may reasonably require.

(6) Any officer exercising any power conferred by paragraph (5) may—

(a) seize and detain any records which he has reason to believe may be required as evidence in any proceedings under these Regulations;

(b) where the records are kept by means of a computer, may require them to be produced in a form in which they may be taken away.

(7) If any person who enters any premises by virtue of this regulation, or of a warrant issued under it, discloses to any person any information obtained by him in the premises with regard to any trade secret, he shall, unless the disclosure was made in the performance of his duty, be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(8) Nothing in this regulation authorises any person, except with the permission of the local authority under the Animal Health Act 1981(11) or, as the case may be, of the Department of Agriculture and Rural Development under the Diseases of Animals (Northern Ireland) Order 1981(12), to enter any premises—

(a) in which an animal or bird affected with any disease to which that Act or Order applies is kept; and

(b) which is situated in a place or area declared under that Act or Order to be infected with such a disease.

(9) In this regulation, “premises” includes any vehicle, stall or moveable structure but does not include any premises, or part of any premises, used only as a dwelling.

Offences due to fault of another person and defence of due diligence

14.—(1) Where the commission by any person of an offence under regulation 10(2) is due to the act or default of another person, that other person shall be guilty of the offence; and a person may be charged with and convicted of the offence by virtue of this paragraph whether or not proceedings are taken against the first-mentioned person.

(2) In any proceedings for an offence under regulation 10(2), it shall, subject to paragraph (3), be a defence for the person charged to prove that he took all reasonable precautions and exercised due diligence to avoid the commission of the offence by himself or by a person under his control.

(3) If in any case the defence provided by paragraph (2) involves the allegation that the commission of the offence was due to an act or default of another person, the person charged shall not, without leave of the court, be entitled to rely on that defence unless—

(a) at least seven clear days before the hearing (or in Scotland the trial diet); and

(b) where he has previously appeared before a court in connection with the alleged offence, within one month of his first such appearance,

he has served on the prosecutor a notice in writing giving such information identifying or assisting in the identification of that other person as was then in his possession.

Obstruction etc. of officers

15.—(1) Any person who—

(a) intentionally obstructs any person acting in the enforcement or execution of the Council Regulation or these Regulations; or

(b) without reasonable cause, fails to give any person acting in the enforcement or execution of the Council Regulation or these Regulations any assistance or information which that person may reasonably require of him in the performance of his functions under that Regulation or these Regulations, shall be guilty of an offence.

(2) Any person who, in purported compliance with any such requirement mentioned in paragraph (1)(b)—

(a) furnishes information which he knows to be false or misleading in a material particular; or

(b) recklessly furnishes information which is false or misleading in a material particular,

shall be guilty of an offence.

(3) Nothing in paragraph (1)(b) shall be construed as requiring any person to answer any question or give any information if to do so might incriminate him.

(4) A person guilty of an offence under this regulation shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.

Offences by bodies corporate

16.—(1) Where an offence under these Regulations which has been 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—

(a) any director, manager, secretary or other similar officer of the body corporate, or

(b) any person who was purporting to act in such capacity (or in the case of a partnership under Scots law, a partner or person who was purporting to act as such),

he, as well as the body corporate, shall be guilty of the offence and be liable to be proceeded against and punished accordingly.

(2) Where the affairs of a body corporate are managed by its members, the provisions of paragraph (1) shall apply in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.

Protection of officers acting in good faith

17.—(1) An officer or agent of the Secretary of State, a private inspection body or a local authority is not personally liable in respect of any act done by him—

(a) in the execution or purported execution of these Regulations or the Council Regulation; and

(b) within the scope of his employment,

if he did that act in the honest belief that his duty under these Regulations or the Council Regulation required or entitled him to do it.

(2) Nothing in paragraph (1) shall be construed as relieving the Secretary of State, a private inspection body or a local authority from liability in respect of the acts of their officers.

Extended time for bringing prosecutions

18.  No prosecution for an offence under regulation 10(2),13(7) or 15(2) shall be begun after the expiry of—

(a) one year from the commission of the offence; or

(b) six months from its discovery by the prosecutor,

whichever is the earlier.

Use of electronic communications

19.—(1) Any requirement imposed by or under these Regulations as to the giving by one person to another of a notice or other document may be met by means of an electronic communication if—

(a) the use of such a communication results in the information contained in that notice being available to the other person in all material respects as it would appear in a notice given in printed form; and

(b) the other person has consented to the information being made available to him by such means.

(2) In paragraph (1), “electronic communication” has the meaning given in section 15(1) of the Electronic Communications Act 2000(13).

(3) For the purposes of paragraph (1)(a), “in all material respects” means in all respects material to an exact reproduction of the content of the information as it would appear in a notice given in printed form.

Revocations

20.  The Regulations specified in Schedule 3 are hereby revoked.

Ben Bradshaw

Parliamentary Under Secretary of State,

Department for Environment, Food and Rural Affairs

14th June 2004

We consent,

Nick Ainger

Jim Murphy

Two of the Lords Commissioners of Her Majesty’s Treasury

23rd June 2004