The Milk (Special Designation) Regulations 1988

PART I title, commencement and interpretation

Title and commencement

1.  These Regulations may be cited as the Milk (Special Designation) Regulations 1988, and shall come into force on 1st January 1989.

Interpretation

2.—(1) In these Regulations unless the context otherwise requires–

“accredited herd” means a herd which to the satisfaction of the Minister either–

(a)

has been found to be free from brucellosis by means of a series of diagnostic tests carried out by him or on his behalf and has been, since the date of commencement of such tests, the subject of adequate precautions against the introduction or re-introduction and consequent spreading of brucellosis; or

(b)

has been wholly constituted by the transfer of animals from other accredited herds in Great Britain or from such similar herds outside Great Britain as the Minister may either generally or in any special case allow, and has been, since being so constituted, the subject of such precautions as aforesaid;

“the Act” means the Food Act 1984;

“atmospheric shade box” means a well ventilated box or cupboard so situated on the outside of a wall on the north side of a building or in a comparable position that it is at all times in the shade, such box or cupboard being not less than 90 cm. above the ground at its lowest point and having inside it a maximum thermometer and a minimum thermometer of the meteorological type, accurate to within 0.5°C.;

“atmospheric shade temperature” means the temperature inside an atmospheric shade box;

“brucellosis” means the disease caused by brucella abortus;

“bulk milk” means milk which is not pre-packed;

“business” includes the business of a hospital, school or other institution whose selling of milk is incidental only to the rendering of the health, education or other services rendered by the institution;

“consumer” means any person to whom milk is supplied and who neither sells it nor uses it in the manufacture of milk products for sale;

“dealer’s licence” means a licence granted to any person to use the special designation “Pasteurised”, “Sterilised” or “Ultra Heat Treated” in relation to milk sold by him and “licensed dealer” means a person to whom a dealer’s licence has been granted;

“farm bottled milk” means untreated milk which has been produced from a herd owned or controlled by a licensed producer and bottled, or placed in cartons or other containers, at the place of production;

“herd” means the milch cows in respect of whose milk any licence is applied for or granted, as the case may be, and includes any other bovine animals for the time being kept in contact with such cows;

“licence” means a licence granted by or under these Regulations;

“licence held by a retailer for a specified area” means a licence authorising the use of a special designation held by a person carrying on a business which includes any sales which are sales for the purpose of which the use of a special designation is obligatory by virtue of Part II of the Act and are of milk in relation to which that licence authorises the use of a special designation;

“licensing authority” means, in relation to a grant of a licence, the authority having power to grant the licence by virtue of these Regulations, and, in relation to a licence which has been granted, the authority who would for the time being have power by virtue of these Regulations to grant a licence by way of renewal thereof if it had expired; and “licensing area” means the area of such licensing authority;

“milch cow” means a cow kept for milking purposes;

“milk” means cows' milk, but does not include cream, or separated, skimmed, dried, condensed or evaporated milk, or butter milk;

“the Minister” means the Minister of Agriculture, Fisheries and Food and the Secretary of State acting jointly;

“pre-packed” means packed or made up in advance in the bottle or other container in which it is to be supplied to the consumer;

“presentation”, in relation to milk, includes the appearance or packaging of the milk, the way in which the milk is arranged when it is exposed for sale and the setting in which the milk is displayed with a view to sale, but does not include any form of labelling or advertising;

“producer’s licence” means a licence granted to any person owning or having control of a herd to use the special designation “Untreated” in relation to milk produced from that herd and sold by him at or from the premises where the herd is maintained; and “licensed producer” means any person to whom such a licence has been granted;

“raw milk” means milk which has not been treated by heat;

“sample” means a sample taken by a person duly authorised in that behalf by the licensing authority or the Minister;

“sell” includes offer or agree to sell or expose for sale; and “sale” shall be construed accordingly;

“selling” means selling in the course of a business, and includes, in relation to milk, supplying it under arrangements for free supply or in the course of any business otherwise than under such arrangements; and references to sales and contracts of sale shall be construed accordingly;

“selling milk by retail” means selling it–

(a)

to any person other than a milk dealer (that is to say, a person who carries on a business which consists in or comprises the selling of milk that has been pasteurised, sterilised or ultra heat treated), an untreated milk distributor (that is to say, a person who carries on a business which consists in or comprises the selling of untreated milk) or a manufacturer of milk products (that is to say, a person who carries on a business which consists in or comprises the making of things made from milk or of which milk is an ingredient); or

(b)

to such a dealer, untreated milk distributor, or manufacturer otherwise than for the purpose of his business as such;

“selling milk by wholesale” means selling milk otherwise than by retail;

“specified area” means an area in which section 40 of the Act is in operation;

“untreated milk distributor’s licence” means a licence granted to any person to use the special designation “Untreated” in relation to farm bottled milk sold by him, not being milk sold, or appropriate to be sold, by him in accordance with the terms of a producer’s licence; and “licensed untreated milk distributor” means a person to whom an untreated milk distributor’s licence has been granted.

(2) Any reference in these Regulations to a numbered regulation or to a Schedule shall, unless the reference is to a regulation of, or a Schedule to, specified Regulations, be construed as a reference to the regulation or Schedule so numbered in these Regulations.

PART II general provisions as to licences

Special designations

3.  The special designations which may be used in accordance with these Regulations in relation to milk are “Untreated”, “Pasteurised”, “Sterilised”, and “Ultra Heat Treated”.

Application for licence

4.  Subject to the provisions of these Regulations, any person who intends to use in relation to milk a special designation authorised by these Regulations shall, unless he already holds an appropriate licence currently in force, apply in writing in accordance with the provisions of these Regulations to the licensing authority for a licence to use such special designation.

Refusal of licence

5.  Subject to the provisions of these Regulations, the licensing authority may refuse to grant a licence (whether in renewal of an existing licence or not) if they are not satisfied that the applicant’s arrangements and processes for the production, handling, treatment, storage and distribution of milk, as the case may be, are such as to comply with all relevant provisions contained in any Milk and Dairies Regulations and Milk (Special Designation) Regulations, including these Regulations.

Conditions of licences

6.—(1) Every licence to use the special designation “Untreated” shall be subject to such of the following conditions as are applicable:–

(a) the general conditions set out in Schedule 1;

(b) the special conditions set out in Schedule 2;

(c) the detailed conditions as to sampling set out in Part I of Schedule 5, and as to testing set out in Part II of that Schedule;

(d) the detailed conditions as to labelling set out in Schedule 6.

(2) Every licence to use the special designation “Pasteurised” shall be subject to such of the following conditions as are applicable:–

(a) the general conditions set out in Schedules 1 and 3;

(b) the special conditions set out in Part I of Schedule 4;

(c) the detailed conditions as to sampling set out in Part I of Schedule 5, and as to testing set out in Parts II, III, IV and V of that Schedule;

(d) the detailed conditions as to labelling set out in Schedule 6.

(3) Every licence to use the special designation “Sterilised” shall be subject to such of the following conditions as are applicable:–

(a) the general conditions set out in Schedules 1 and 3;

(b) the special conditions set out in Part II of Schedule 4;

(c) the detailed conditions as to sampling set out in Part I of Schedule 5, and as to testing set out in Parts IV and VI of that Schedule;

(d) the detailed conditions as to labelling set out in Schedule 6.

(4) Every licence to use the special designation “Ultra Heat Treated” shall be subject to such of the following conditions as are applicable:–

(a) the general conditions set out in Schedules 1 and 3;

(b) the special conditions set out in Part III of Schedule 4;

(c) the detailed conditions as to sampling set out in Part I of Schedule 5, and as to testing set out in Part IV of that Schedule;

(d) the detailed conditions as to labelling set out in Schedule 6.

Form of licence

7.—(1) Every licence granted under these Regulations shall be in the appropriate form contained in Schedule 7 with such modifications, if any, as the circumstances may require, that is to say–

(a) a producer’s licence authorising the use of the special designation “Untreated” shall be in form A;

(b) an untreated milk distributor’s licence authorising the use of the special designation “Untreated” for untreated farm bottled milk shall be in form B;

(c) a dealer’s licence authorising the use of the special designation “Pasteurised” (where pasteurisation has been carried out by the dealer) shall be in form C;

(d) a dealer’s licence authorising the use of the special designation “Sterilised” (where sterilisation has been carried out by the dealer) shall be in form D;

(e) a dealer’s licence authorising the use of the special designation “Ultra Heat Treated” (where ultra heat treatment has been carried out by the dealer) shall be in form E;

(f) a dealer’s licence authorising the use of the special designations “Pasteurised”, “Sterilised”, “Ultra Heat Treated”, in respect of pre-packed milk, shall be in form F.

(2) A licence other than a dealer’s licence granted by the Minister to the Milk Marketing Board shall authorise the use of a special designation only in relation to milk sold at or from the premises mentioned in the licence.

PART III grant of producers' licences

Producers' licences

8.—(1) Subject to the provisions of these Regulations–

(a) every producer’s licence shall be granted by the Minister;

(b) every producer’s licence shall continue in effect until the expiration of the period of three years in which it takes effect, being one of the periods of three years ending with 31st October 1991 or in any third succeeding year;

(c) notwithstanding sub-paragraph (b) hereof, a producer’s licence may be granted by the Minister for a temporary purpose for a period not exceeding one month.

(2) Unless previously revoked, any producer’s licence, other than a licence granted for a temporary purpose, may, on application by the licensed producer, be renewed from time to time by the Minister for a period calculated in the manner set out in this regulation.

PART IV refusal, suspension and revocation of producers' licences and appeals arising therefrom

Refusal, suspension and revocation of producers' licences

9.—(1) The Minister shall not revoke a producers' licence being a licence to which section 45 of the Act applies (that is to say, a licence held by a retailer for a specified area) or refuse a grant of a licence by way of renewal of any such licence on the ground of breach of a condition thereof, unless–

(a) the breach in question is of a condition to which section 45 as aforesaid applies,

(b) the holder of the licence has been convicted of an offence under that section by virtue of the breach in question, or has been convicted, within twelve months before the time of the breach in question or after the time of it, of an offence under section 39, 40 or 41 of the Act, or of an offence under Milk and Dairies Regulations for which a penalty is thereby imposed, and

(c) the decision of the licensing authority to revoke, or to refuse renewal, as the case may be, is made within twelve months from the date of the breach in question.

(2) The Minister shall not suspend a producer’s licence, being a licence held by a retailer for a specified area, on the ground of breach of a condition thereof, by virtue of any one decision by him, for a period of more than 3 months, but the period of suspension awarded by any such decision may be extended by a subsequent such decision made in accordance with regulation 10.

Procedure

10.—(1) Subject, as respects the suspension or revocation of a producer’s licence which is a licence held by a retailer for a specified area, to regulation 9 and to paragraph (2) below, the Minister may suspend or revoke a producer’s licence on the ground of any breach of a condition thereof, being a breach by virtue of which the producer has been convicted of an offence under section 45 of the Act, or which, not being such a breach as aforesaid, is proved (in a case referred to a tribunal by virtue of these Regulations) by the finding of the tribunal, or (in any other case) to the satisfaction of the Minister.

(2) No producer’s licence shall be suspended or revoked by reason only of the producer’s milk being found not to comply with the conditions of the licence after it has left his custody and control, if he shows to the satisfaction of the Minister that such non-compliance was not due to any act or default of himself or of his servants or agents.

(3) Where the Minister proposes to refuse to grant a producer’s licence, or proposes to suspend or revoke such a licence, he shall serve on the person affected a notice informing him of the proposal and the reasons therefor, and of his right under paragraph (4) below.

(4) The person affected may within 21 days after the receipt of such notice make representations in writing to the Minister in respect of all or any of the reasons stated therein, and where the issue is as to revocation or suspension of a producer’s licence, being a licence held by a retailer for a specified area, or refusal of a grant of a licence by way of renewal of such a licence, he may within the same period request the Minister to refer the matter to a tribunal constituted in accordance with these Regulations. If such request is made to the Minister as aforesaid, he shall forthwith refer the matter to a tribunal in accordance with the provisions of Schedule 8 and on receipt of the tribunal’s report the Minister shall send a copy thereof to the person affected.

(5) The decision of the Minister to refuse to grant, or to suspend, or to revoke, a producer’s licence shall be final, but before making his decision he shall consider any representations made under the preceding paragraph and where the matter has been referred to a tribunal, the report of the tribunal. The Minister shall serve on the person affected a notice informing him of the decision and the reasons therefor.

(6) Where before the end of the period for which a producer’s licence was granted, the holder of that licence applies for a licence in renewal thereof and his application is not finally determined before the end of the said period, the existing licence shall, subject to any suspension under these Regulations, remain in force until his application is so determined, and where notice of a proposal to refuse to grant such a licence is given by the Minister during the currency of a period when representations may be made against his proposed decision to suspend or revoke the existing licence, or in the case of a retailer for a specified area reference to a tribunal in respect of the matter may be requested, such representations or reference shall be deemed to include representations or reference in respect of such refusal.

Tribunals

11.  Where under this Part of these Regulations any issue is referred to a tribunal the constitution and procedure of the tribunal shall conform with the provisions of Schedule 8.

PART V provisions relating to the granting of untreated milk distributors' licences

Untreated milk distributors' licences

12.—(1) Subject to the provisions of these Regulations–

(a) every untreated milk distributor’s licence, other than a licence specified in sub-paragraph (b) below, shall be granted by the local authority for the area within which are situated the premises at or from which the milk is to be sold;

(b) every untreated milk distributor’s licence granted–

(i) to the Milk Marketing Board in relation to milk sold by the Board otherwise than at or from any of the Board’s premises where milk intended for sale or sold is handled by them,

(ii) to a county council, or

(iii) to a local authority,

shall be granted by the Minister;

(c) application may be made for an untreated milk distributor’s licence in relation to farm bottled milk obtained by the applicant pre-packed from a licensed producer to use the special designation “Untreated” for the purpose of re-selling such milk to the ultimate consumer (as defined in Schedule 6) only.

(2) In an application for an untreated milk distributor’s licence the applicant shall state the name and address of each licensed producer from whom he proposes to obtain the milk.

(3) In this regulation the expression “local authority” has the meaning assigned to it by section 72 of the Act.

Duration of untreated milk distributors' licences

13.—(1) Every untreated milk distributor’s licence shall, subject to the provisions of these Regulations, continue in effect until the expiration of the period of three years in which it takes effect, being one of the periods of three years ending with 31st October in 1991 or in any third succeeding year.

(2) Any untreated milk distributor’s licence, unless previously revoked, may, on application by the licensed untreated milk distributor, be renewed from time to time by the licensing authority for a period calculated in the manner set out in this regulation.

PART VI provisions relating to the granting of dealers' licences

Dealers' licences

14.—(1) Subject to the provisions of these Regulations–

(a) every dealer’s licence, other than a licence specified in sub-paragraph (b) below, shall be granted by the local authority for the area within which are situated the premises at or from which the milk is to be pasteurised, sterilised, treated by the ultra high temperature method or sold, as the case may be;

(b) every dealer’s licence granted–

(i) to the Milk Marketing Board in relation to milk sold by the Board otherwise than at or from any of the Board’s premises where milk intended for sale or sold is handled by them;

(ii) to a county council; or

(iii) to a local authority;

shall be granted by the Minister;

(c) application may be made for a dealer’s licence to use the special designation “Pasteurised”, “Sterilised” or “Ultra Heat Treated”, as the case may be, in relation to milk pasteurised by the applicant in accordance with the provisions of Schedule 3 and Part I of Schedule 4, sterilised by him in accordance with the provisions of Schedule 3 and Part II of Schedule 4, or treated by him by the ultra high temperature method in accordance with the provisions of Schedule 3 and Part III of Schedule 4;

(d) application may be made in relation to milk–

(i) obtained by the applicant pre-packed in respect of which any of the special designations “Pasteurised”, “Sterilised” or “Ultra Heat Treated” may be used by virtue of these Regulations;

(ii) pasteurised, sterilised or treated by the ultra high temperature method by the applicant in accordance with the provisions of a licence granted under sub-paragraph (c) above;

for a dealer’s licence to use a special designation for the purpose of selling such milk by wholesale or by retail and such a licence may authorise the use of one or more special designations.

(2) In an application for a dealer’s licence, other than an application made in accordance with paragraph (1)(c) above, the applicant shall state the name and address of each person from whom he proposes to obtain the milk.

(3) In this regulation, the expression “local authority” has the meaning assigned to it by section 72 of the Act.

Duration of dealers' licences

15.—(1) Every dealer’s licence shall, subject to the provisions of these Regulations, continue in force until the expiration of the period of five years in which it comes into force, being one of the periods of five calendar years ending with 31 December in the year 1990 and in any fifth succeeding year.

(2) Any dealer’s licence, unless previously revoked, may on application by the licensed dealer be renewed from time to time by the licensing authority for a period calculated in the manner set out in paragraph (1) above.

PART VII refusal, suspension and revocation of untreated milk distributors' licences and dealers' licences and appeals arising therefrom

Refusal, suspension and revocation of untreated milk distributors' licences and dealers' licences

16.—(1) The licensing authority shall not revoke a licence being a licence to which section 45 of the Act applies (that is to say, a licence held by a retailer for a specified area) or refuse a grant of a licence by way of renewal of any such licence on the ground of breach of a condition thereof unless–

(a) the breach in question is of a condition to which section 45 as aforesaid applies,

(b) the holder of the licence has been convicted of an offence under that section by virtue of the breach in question, or has been convicted within twelve months before the time of the breach in question or after the time of it, of an offence under section 39, 40 or 41 of the Act, or of an offence under Milk and Dairies Regulations for which a penalty is thereby imposed, and

(c) the decision of the licensing authority to revoke, or to refuse renewal, as the case may be, is made within twelve months from the date of the breach in question.

(2) The licensing authority shall not suspend a licence, being a licence held by a retailer for a specified area, on the ground of breach of a condition thereof, by virtue of any one decision by the licensing authority, for a period of more than 3 months, but the period of suspension awarded by any such decision may be extended by a subsequent such decision made in accordance with the provisions of regulation 17.

Procedure

17.—(1) Subject, as respects suspension or revocation of a licence which is a licence held by a retailer for a specified area, to the provisions of the preceding regulation, the licensing authority may suspend or revoke a licence on the ground of any breach of a condition thereof being a breach by virtue of which the holder has been convicted of an offence under section 45 of the Act, or which, not being such a breach as aforesaid, is proved (in a case referred to a tribunal by virtue of the subsequent provisions of these Regulations) by the finding of the tribunal, or (in any other case) to the satisfaction of the licensing authority.

(2) The following provisions shall apply where a licensing authority, other than the Minister, propose to suspend or revoke a licence or to refuse to grant such a licence:–

(a) The authority shall serve on the person affected a notice informing him of the proposal and the reasons therefor, and of his right under sub-paragraph (b) below.

(b) The person affected may within 21 days after the receipt of such a notice require the authority to afford him an opportunity of being heard by the appropriate committee of the authority and the authority shall comply with any such requirement before making their decision.

(c) Any such hearing by a committee shall be in public and the person affected shall be entitled to be heard by himself or by counsel or a solicitor or other representative as he may elect, and he or his representative shall be entitled to call witnesses and to cross-examine witnesses called by another.

(d) Where the decision of the authority is adverse to the person affected, that person may within 21 days after being notified of that decision appeal to the Minister and the authority shall give notice of such right together with notice of their decision and the reasons for that decision.

(e) A decision of the licensing authority to suspend or revoke a licence shall not have effect until 21 days after the receipt by the person affected of notice thereof and, in the event of an appeal against the decision, until the end of the period in respect of which the licence was granted or until the determination of the appeal, whichever is the earlier.

(f) The Minister on any such appeal, before making his decision, shall, by notice, afford to the person affected an opportunity of making representations within a period of 21 days, and where the issue is as to revocation or suspension of a licence held by a retailer for a specified area or refusal of a grant of a licence by way of renewal of such a licence and the person affected so requests, the Minister shall refer the matter to a tribunal in accordance with the provisions of Schedule 8.

(g) On receipt of the tribunal’s report the Minister shall send a copy thereof to the person affected and before making his decision the Minister shall consider the report. The Minister shall give his decision in writing and shall give reasons for his decision.

(h) In any such appeal any reference in these Regulations to anything being done to the satisfaction of the licensing authority shall be treated as if the reference were to the satisfaction of the Minister who in determining any such appeal may, if he thinks fit, take into consideration any change of circumstances brought about since the date of the licensing authority’s decision.

(i) The decision of the Minister on any such appeal shall be final and the licensing authority shall comply therewith.

(3) Where the Minister acting as a licensing authority proposes to revoke or suspend a licence or to refuse to grant such a licence he shall serve on the council or board affected a notice informing them of the proposal and the reasons therefor and shall by notice afford such council or board an opportunity of making representations within a period of 21 days, and where the issue is as to revocation or suspension of a licence held by a retailer for a specified area or refusal of a grant of a licence by way of renewal of such a licence and the council or board affected so requests, the Minister shall refer the matter to a tribunal in accordance with the provisions of Schedule 8.

(4) On the receipt of the tribunal’s report the Minister shall send a copy thereof to the council or board affected and before making his decision the Minister shall consider the report. The Minister shall give his decision in writing and shall give reasons for his decision.

(5) Where before the end of the period for which a licence was granted the holder of the licence applies for a grant of a licence in renewal thereof and his application is not finally determined before the end of the said period, the existing licence shall, subject to any suspension under these Regulations, remain in force until his application is so determined, and where notice of a proposal to refuse to grant the licence is given by the licensing authority–

(a) during the currency of a period when representations may be made against the licensing authority’s proposed decision to suspend or revoke the existing licence;

(b) during the currency of an appeal to the Minister against a decision by a licensing authority, other than the Minister, to suspend or revoke the existing licence; or

(c) in the case of a retailer for a specified area, after he has requested a reference to a tribunal and before the consideration of that reference by the tribunal;

such representations, appeal or reference, as the case may be, shall be deemed to include representations, an appeal or reference in respect of such refusal.

Tribunals

18.  Where under this part of these Regulations any issue is referred to a tribunal the constitution and procedure of the tribunal shall conform with the provisions of Schedule 8.

Interpretation of “licence”

19.  In this Part of these Regulations the word “licence” means an untreated milk distributor’s licence or a dealer’s licence.

PART VIII miscellaneous provisions including revocations

Internal trade

20.—(1) Where milk is brought into England and Wales from Scotland–

(a) a Scottish licence (that is to say a licence granted under legislation having effect for the time being in Scotland) authorising the use, in relation to that milk, of a designation corresponding to a special designation prescribed by these Regulations shall have effect as if it had been granted under these Regulations; and

(b) so far as any conditions prescribed in these Regulations for a licence authorising the use of that special designation would relate to anything to be done before that milk enters England and Wales, they shall be deemed to be satisfied if the corresponding conditions of that Scottish licence are complied with.

(2) Where milk is brought into England and Wales from Northern Ireland–

(a) a Northern Irish licence (that is to say a licence granted under legislation having effect for the time being in Northern Ireland) authorising the sale, offer or exposure for sale of that milk under a designation corresponding to a special designation prescribed by these Regulations shall have effect as if it had been granted under these Regulations; and

(b) so far as any conditions prescribed in these Regulations for a licence authorising the use of that special designation would relate to anything to be done before that milk enters England and Wales, they shall be deemed to be satisfied if the corresponding conditions attaching to that Northern Irish licence are complied with.

Enforcement

21.—(1) The provisions of section 45 of the Act (which relate to breaches of certain conditions of licences held by retailers for specified areas) shall, so far as they relate to licences under these Regulations, other than licences authorising the use of a special designation in relation to raw milk by the producer thereof, or authorising the use of a special designation by a local authority, be enforced by the licensing authority.

(2) In this regulation, the expression “local authority” means a local authority within the meaning of the Local Government Act 1972(1).

(3) Every licensing authority shall give such assistance and information to any other licensing authority as that other licensing authority may reasonably require for the purpose of carrying out their duties under these Regulations.

Revocation and savings

22.—(1) Any licence to use a special designation granted under the Milk (Special Designation) Regulations 1986(2) and in force immediately before the coming into force of these Regulations shall continue in force and have effect as if it had been granted under and subject to the provisions of these Regulations.

(2) The Milk (Special Designation) Regulations 1986 and the Milk (Special Designation) (Amendment) Regulations 1988(3) are revoked.

In Witness whereof the Official Seal of the Minister of Agriculture, Fisheries and Food is hereunto affixed on 13th December 1988.

L.S.

Trumpington

Parliamentary Secretary, Ministry of Agriculture, Fisheries and Food

Kenneth Clarke

Secretary of State for Health

15th December 1988

Peter Walker

Secretary of State for Wales

15th December 1988