2013 No. 2493 (W. 242)

Food, Wales

The Contaminants in Food (Wales) Regulations 2013

Made27 September 2013

Laid before the National Assembly for Wales1 October 2013

Coming into force31 October 2013

The Welsh Ministers make the following Regulations in exercise of the powers conferred by sections 16(1), 17(1) and (2), 26(1)(a) and (3), and 48(1) of the Food Safety Act 19901, and now vested in them2, as read with paragraph 1A of Schedule 2 to the European Communities Act 19723.

These Regulations make provision for a purpose mentioned in section 2(2) of the European Communities Act 1972 and it appears to the Welsh Ministers that it is expedient for references to an Article of or Annex to the EU instruments specified in regulation 2(3) to be construed as references to that Article or Annex as it may be amended from time to time.

In accordance with section 48(4A) of the Food Safety Act 1990, they have had regard to relevant advice given by the Food Standards Agency.

As required by Article 9 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 safety4, there has been open and transparent public consultation during the preparation and evaluation of these Regulations.

PART 1Introductory

Title, application and commencementI21

1

The title of these Regulations is the Contaminants in Food (Wales) Regulations 2013.

2

These Regulations apply in relation to Wales and they come into force on 31 October 2013.

InterpretationI52

1

In these Regulations —

“the Act” (“y Ddeddf”)_means the Food Safety Act 1990;
F1...
F1...
“Regulation 1881/2006” (“Rheoliad 1881/2006”) means Commission
Regulation (EC) No. 1881/2006 setting maximum levels for certain contaminants in foodstuffs7;
F1...
“Regulation 124/2009” (“Rheoliad 124/2009”) means Commission Regulation (EC) No. 124/2009 setting maximum levels for the presence of coccidiostats or histomonstats in food resulting from the unavoidable carry-over of these substances in non-target feed9;
F1...
“authorised officer” (“swyddog awdurdodedig”) means any person who is authorised in writing, either generally or specially, by a food authority to act in matters arising under these Regulations;
“food authority” (“awdurdod bwyd”) has the meaning given by section 5(1A) of the Act.

2

Any other expression used in these Regulations and in F2... Regulation 1881/2006 or Regulation 124/2009 has the same meaning in these Regulations as it bears in the F3... Regulation concerned.

3

Any reference to an Article of or Annex to F4... Regulation 1881/2006 or Regulation 124/2009 is a reference to that Article or Annex as it may be amended from time to time, and any reference to any of those F5... Regulations is to be construed accordingly.

4

Where any functions under the Act are assigned —

a

by an order under section 2 F6... of the Public Health (Control of Disease) Act 198411, to a port health authority; or

b

by an order under section 6 of the Public Health Act 193612, to a joint board for a united district;

any reference in these Regulations to a food authority is to be construed, so far as relating to those functions, as a reference to the authority to which they are so assigned.

PART 2Erucic acid in food

ScopeF73

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Controls on erucic acidF84

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

PART 3Contaminants in food

Controls on contaminants in foodI65

F91

A person who contravenes or fails to comply with any of the F14retained EU law provisions specified in paragraph (2) is guilty of an offence.

2

The F15retained EU law provisions are —

a

Article 1(1) of Regulation 1881/2006 (prohibition on the placing on the market of foodstuffs containing contaminants in excess of prescribed limits contained in the Annex), as read with —

i

Article 1(2) (maximum levels applying to edible part of food unless otherwise specified in the Annex),

ii

Article 2 (provisions relating to the application of maximum levels to dried, diluted, processed and compound foodstuffs),

iii

Article 4 (specific provisions for groundnuts, other oilseeds, tree nuts, dried fruit, rice and maize),

iv

Article 6 (specific provisions for lettuce), and

v

the Annex (maximum levels for certain contaminants in foodstuffs);

b

Article 3 of Regulation 1881/2006 (prohibitions on use, mixing and detoxification);

c

Article 5 of Regulation 1881/2006 (specific labelling requirements for groundnuts, other oilseeds, derived products thereof and cereals); and

d

Article 1(1) of Regulation 124/2009 (prohibitions on marketing or mixing foods containing coccidiostats or histomonstats at levels in excess of prescribed limits), as read with Article 1(2).

F103

The level of erucic acid in a food must be determined according to sampling methods, and methods of analysis that meet the performance criteria, set out in the Annex to Commission Regulation (EU) 2015/705 laying down methods of sampling and performance criteria for the methods of analysis for the official control of the levels of erucic acid in foodstuffs and repealing Commission Directive 80/891/EEC.

PART 4Administration and enforcement

PenaltiesI76

Anyone convicted of an offence under F11... regulation 5(1) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

Enforcement and competent authoritiesI87

1

It is the duty of each food authority within its county or county borough to execute and enforce these Regulations, Regulation 1881/2006 and Regulation 124/2009.

2

The competent authority for the purposes of —

a

Article 2(2) of Regulation 1881/2006 (justification by food business operators of concentration or dilution factors); and

b

Article 1(1) of Regulation 124/2009 (relating to the duty to investigate the reasons for the contamination),

is the authority having the duty to execute and enforce under paragraph (1).

Application of various sections of the Food Safety Act 1990I18

1

The following provisions of the Act apply for the purposes of these Regulations with the modification that any reference in those provisions to the Act or Part of it is to be construed as a reference to these Regulations —

a

section 3 (presumptions that food intended for human consumption);

b

section 20 (offences due to fault of another person);

c

section 21 (defence of due diligence)14 with the modification that—

i

subsections (2) to (4) shall apply in relation to an offence under regulation F12... 5(1) as they apply in relation to an offence under section 14 or 15, and

ii

in subsection (4) the references to “sale” are deemed to include references to “placing on the market”;

d

section 30(8) (which relates to documentary evidence);

e

section 33(1) (obstruction etc. of officers);

f

section 33(2), with the modification that the reference to “any such requirement as is mentioned in subsection (1)(b) above” shall be deemed to be a reference to any such requirement as is mentioned in section 33(1)(b) as applied by sub–paragraph (e);

g

section 35(1) (punishment of offences)15, in so far as it relates to offences under section 33(1) as applied by sub–paragraph (e);

h

section 35(2) and (3)16, in so far as it relates to offences under section 33(2) as applied by sub–paragraph (f);

i

section 36 (offences by bodies corporate);

j

section 36A (offences by Scottish partnerships)17; and

k

section 44 (protection of officers acting in good faith).

2

Subject to paragraph (3), section 9 of the Act (inspection and seizure of suspected food) applies 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 has been placed on the market and subsections (2) to (7) below apply where, on such an inspection, it appears to the authorised officer that the placing on the market of any food fails to comply with any of the requirements specified in regulation F13... 5(2) of the Contaminants in Food (Wales) Regulations 2013, (“F16the retained EU law requirements”).
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 sampling in the manner required by law; or
b
seize the food and remove it in order to have it dealt with by a justice of the peace.
3
Where the authorised officer exercises the power conferred by subsection (2)(a) above, that officer must, as soon as is reasonably practicable and in any event within 21 days, determine whether or not the food complies with F16the retained EU law requirements and —
a
if satisfied that it does comply, shall forthwith withdraw the notice;
b
if not so satisfied, shall seize the food and remove it in order to have it dealt with by a justice of the peace.
4
Where an authorised officer exercises the powers conferred by subsection (2)(b) or (3)(b) above, the officer must inform the person in charge of the food of the intention to have it dealt with by a justice of the peace and —
a
any person who in connection with any of F16the retained EU law requirements might be liable to a prosecution in respect of the food shall, if that person attends before the justice of the peace by whom the food falls to be dealt with, be entitled to be heard and to call witnesses; and
b
that justice of the peace may, but need not, be a member of the court before which any person is proceeded against for an offence in connection with any of F16the retained EU law requirements in relation to that food.
5
If it appears to a justice of the peace, on the basis of such evidence as the justice considers appropriate in the circumstances, that any food falling to be dealt with under this section fails to comply with any of F16the retained EU law requirements the justice must 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 justice of the peace by whom any food falls to be dealt with under this section refuses to condemn it, the food authority must 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 must be determined by arbitration.
8
Any person who knowingly contravenes the requirements of a notice under subsection (2)(a) above is guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.

3

The expressions “authorised officer” and “food authority” 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), will, for those purposes, bear the meanings that those expressions respectively bear in these Regulations.

Consequential amendmentI39

In Schedule 1 to the Food Safety (Sampling and Qualifications) (Wales) Regulations 201318 (provisions to which those Regulations do not apply), for the entries relating to the Contaminants in Food (Wales) Regulations 201019 substitute the following entries in column 1 and 2 respectively —

The Contaminants in Food (Wales) Regulations 2013 (to the extent that a sample falls to be prepared and analysed in accordance with Commission Regulation (EC) No. 1881/2006 setting maximum levels for certain contaminants in foodstuffs)"
S.I. 2013/----.

RevocationsI410

The —

a

Mineral Hydrocarbons in Food Regulations 196620;

b

Erucic Acid in Food Regulations 197721;

c

Erucic Acid in Food (Amendment) Regulations 198222; and

d

Contaminants in Food (Wales) Regulations 2010,

are revoked.

The Welsh Ministers’ Code of Practice on the carrying out of Regulatory Impact Assessments was considered in relation to these Regulations. As a result, a regulatory assessment has been prepared as to the likely costs and benefits of complying with these Regulations. A copy can be obtained from the Food Standards Agency at Food Standards Agency Wales, 11th Floor, Southgate House, Wood Street, Cardiff, CF10 1EW.