The Food and Animal Feedingstuffs (Products of Animal Origin from China) (Emergency Control) (Scotland) Regulations 2002

Application of various provisions of the Act

5.—(1) The following provisions of the Act shall apply for the purposes of these Regulations and any reference in those provisions to the Act or Part thereof shall be construed as a reference to these Regulations:–

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

(b) section 30 (analysis etc. of samples), with the further modifications that–

(i) the reference to “section 29 above” in subsection (1) shall be deemed to be a reference to that section as applied by regulation 5(5); and

(ii) in the definition of “sample” in subsection (9), the reference to “regulations under section 31 below” shall be deemed to be a reference to regulation 4(2)(b)(ii);

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

(d) section 35(1) to (3) (punishment of offences) in so far as it relates to offences under section 33 as applied by this paragraph;

(e) section 36 (offences by bodies corporate);

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

(g) 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) shall apply 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 relevant product of animal origin which–

(a) has been sold or is offered or exposed for sale; or

(b) is in the possession of, or has been deposited with or consigned to, any person for the purpose of sale or of preparation for sale.

(2) Subsections (3) to (8) shall apply where, whether or not on an inspection carried out under subsection (1), it appears to an authorised officer that any relevant product of animal origin has been imported into Scotland in contravention of regulation 3(1) of the Food and Animal Feedingstuffs (Products of Animal Origin from China) (Emergency Control) (Scotland) Regulations 2002.

(3) The authorised officer may either–

(a) give notice to the person in charge of the product that, until the notice is withdrawn, the product or any specified portion of it–

(i) is not to be used for human consumption or, as the case may be, put to animal feed use; and

(ii) either is not to be removed or is not to be removed except to some place specified in the notice; or

(b) seize the product and remove it in order to have it dealt with by a sheriff,

and any person who knowingly contravenes the requirements of a notice under paragraph (a) above shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(4) Where the authorised officer exercises the powers conferred by subsection (3)(a) above, that officer shall, as soon as is reasonably practicable and in any event within 21 days, determine whether or not that officer is satisfied that the product has not been imported in contravention of regulation 3(1) of the Food and Animal Feedingstuffs (Products of Animal Origin from China) (Emergency Control) (Scotland) Regulations 2002 and–

(a) if the authorised officer is so satisfied, shall forthwith withdraw the notice; or

(b) if the authorised officer is not so satisfied, shall seize the product and remove it in order to have it dealt with by a sheriff.

(5) Where an authorised officer exercises the powers conferred by subsection (3)(b) or (4)(b) above, the authorised officer shall inform the person in charge of the product of the intention to have it dealt with by a sheriff and any person who under regulation 3(3) of the Food and Animal Feedingstuffs (Products of Animal Origin from China) (Emergency Control) (Scotland) Regulations 2002 might be liable to a prosecution in respect of the product shall, if that person attends before the sheriff by whom the product falls to be dealt with, be entitled to be heard and to call witnesses.

(6) If it appears to the sheriff, on the basis of such evidence as the sheriff considers appropriate in the circumstances, that any product falling to be dealt with under this section has been imported in contravention of regulation 3(1) of the Food and Animal Feedingstuffs (Products of Animal Origin from China) (Emergency Control) (Scotland) Regulations 2002, the sheriff shall condemn the product and order–

(a) the product to be destroyed or to be so disposed of as to prevent it from being used for human consumption or, as the case may be, put to animal feed use; and

(b) any expenses reasonably incurred in connection with the destruction or disposal to be charged to the consigner, consignee or agent of the product under Article 4 of the Commission Decision.

(7) If a notice under subsection (3)(a) above is withdrawn, or the sheriff by whom any product falls to be dealt with under this section refuses to condemn it, the food authority shall compensate the owner of the product for any depreciation in its value resulting from the action taken by the authorised officer.

(8) Any disputed question as to the right to or the amount of any compensation payable under subsection (7) above shall be determined by a single arbiter appointed, failing agreement between the parties, by the sheriff.”.

(3) The expression “relevant product of animal origin” used in the application of section 9 of the Act for the purposes of these Regulations which is effected by paragraph (2), shall, for those purposes, bear the meaning that that expression bears in these Regulations.

(4) Section 2 of the Act (extended meaning of “sale” etc.) shall apply in relation to section 9 of the Act in so far as the latter section applies for the purpose of these Regulations by virtue of paragraph (2).

(5) Section 29 of the Act (procurement of samples) shall apply for the purposes of these Regulations with the modifications that–

(a) for “an enforcement authority” there shall be substituted “a food authority”;

(b) for subsection (b)(ii) there shall be substituted–

“(ii) is found by the authorised officer on or in any premises which the authorised officer is authorised to enter in pursuance of regulation 4(2)(b)(iii) of the Food and Animal Feedingstuffs (Products of Animal Origin from China) (Emergency Control) (Scotland) Regulations 2002;”;

(c) subsection (c) shall be omitted; and

(d) in subsection (d) for “any of the provisions of this Act or of regulations or orders made under it” there shall be substituted “the Food and Animal Feedingstuffs) (Products of Animal Origin from China) (Emergency Control) (Scotland) Regulations 2002”.

(6) Regulation 9(1) of the Food Safety (Sampling and Qualifications) Regulations 1990 shall apply for the purposes of these Regulations as if it read as follows:–

“(1) Where a sample procured under section 29 of the Act as applied by regulation 5(5) of the Food and Animal Feedingstuffs (Products of Animal Origin from China) (Emergency Control) (Scotland) Regulations 2002 has been analysed or examined pursuant to regulation 4(2)(b) of those Regulations, the owner shall be entitled on request to be supplied with a copy of the certificate of analysis or examination by the authority which, by virtue of regulation 4(1) of those Regulations, has the duty of enforcing them.”.