The Specified Products from China (Restriction on First Placing on the Market) (Scotland) Regulations 2008

Scottish Statutory Instruments

2008 No. 148

AGRICULTURE

FOOD

The Specified Products from China (Restriction on First Placing on the Market) (Scotland) Regulations 2008

Made

14th April 2008

Laid before the Scottish Parliament

14th April 2008

Coming into force

15th April 2008

The Scottish Ministers make the following Regulations in exercise of the powers conferred by section 2(2) of the European Communities Act 1972 M1 and all other powers enabling them to do so.

There has been a consultation 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 safety M2 .

Marginal Citations

M1 1972 c. 68 (“the 1972 Act”). Section 2(2) was amended by the Scotland Act 1998 (c. 46) (“the 1998 Act”), Schedule 8, paragraph 15(3), and by the Legislative and Regulatory Reform Act 2006 (c. 51), section 27. The functions conferred on the Minister of the Crown under section 2(2) of the 1972 Act, so far as within devolved competence, were transferred to the Scottish Ministers by virtue of section 53 of the 1998 Act. Insofar as not so transferred and insofar as relating to food (including drink) including the primary production of food, those functions were transferred to the Scottish Ministers by the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 2005 (S.I. 2005/849), and insofar as relating to feed, those functions were transferred to the Scottish Ministers by the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 2006 (S.I. 2006/304)

M2 O.J. No. L 31, 1.2.02, p.1. The Regulation was amended by Regulation (EC) No. 1642/2003 of the European Parliament and of the Council (O.J. No. L 245, 29.9.03, p.4) and Commission Regulation (EC) No. 575/2006 (O.J. No. L 100, 8.4.06, p.3).

Citation, commencement and extent S

1.—(1) These Regulations may be cited as the Specified Products from China (Restriction on First Placing on the Market) (Scotland) Regulations 2008, and come into force on 15th April 2008.

(2) These Regulations extend to Scotland only.

Interpretation S

2.—(1) In these Regulations–

“authorised officer”, means a person authorised in accordance with regulation 5;

[F1 “the Commission Decision” means Commission Implementing Decision 2011/884/EU on emergency measures regarding unauthorised genetically modified rice in rice products originating from China and repealing Decision 2008/289/EC] [F2 , as amended by Commission Implementing Decision 2013/287/EU];

“local authority” means a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 M3 ; F3 ...

[F4 “placing on the market” has the meaning given to it in Article 3.8 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 safety; and]

“rice product” means any rice product listed in [F5 Annex I] to the Commission Decision that originates from China or has been consigned from China.

(2) For the purposes of these Regulations any expression used in both these Regulations and in the Commission Decision has the meaning it bears in the Commission Decision.

Textual Amendments

F1 Words in reg. 2(1) substituted (12.1.2012) by The Specified Products from China (Restriction on First Placing on the Market) (Scotland) Amendment Regulations 2012 (S.S.I. 2012/3), regs. 1, 2(2)(a)

F2 Words in reg. 2(1) inserted (4.7.2013) by The Specified Products from China (Restriction on First Placing on the Market) (Scotland) Amendment Regulations 2013 (S.S.I. 2013/221), regs. 1, 2(2)

F3 Words in reg. 2(1) omitted (12.1.2012) by virtue of The Specified Products from China (Restriction on First Placing on the Market) (Scotland) Amendment Regulations 2012 (S.S.I. 2012/3), regs. 1, 2(2)(b)(i)

F4 Words in reg. 2(1) inserted (12.1.2012) by The Specified Products from China (Restriction on First Placing on the Market) (Scotland) Amendment Regulations 2012 (S.S.I. 2012/3), regs. 1, 2(2)(b)(ii)

F5 Words in reg. 2(1) substituted (12.1.2012) by The Specified Products from China (Restriction on First Placing on the Market) (Scotland) Amendment Regulations 2012 (S.S.I. 2012/3), regs. 1, 2(2)(c)

Marginal Citations

M3 1994 c. 39.

[F6 Restriction on placing on the market of rice products] S

3.— [F7 (1) The placing on the market of any rice product is prohibited unless—

(a) the conditions specified in [F8 Article 3 and] Article 4 of the Commission Decision have been complied with in relation to that product; and

(b) where the consignment of the rice product has been split following official control, an authenticated copy of the health certificate and the analytical report accompanies each part of the split consignment.]

(2) Any person who knowingly contravenes the prohibition in paragraph (1) is guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale, or to imprisonment for a term not exceeding three months or to both.

Textual Amendments

F6 Regulation 3 heading substituted (12.1.2012) by The Specified Products from China (Restriction on First Placing on the Market) (Scotland) Amendment Regulations 2012 (S.S.I. 2012/3), regs. 1, 2(3)

F7 Reg. 3(1) substituted (12.1.2012) by The Specified Products from China (Restriction on First Placing on the Market) (Scotland) Amendment Regulations 2012 (S.S.I. 2012/3), regs. 1, 2(3)

F8 Words in reg. 3(1)(a) inserted (4.7.2013) by The Specified Products from China (Restriction on First Placing on the Market) (Scotland) Amendment Regulations 2013 (S.S.I. 2013/221), regs. 1, 2(3)

Notification of positive results S

F9 4.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F9 Reg. 4 omitted (12.1.2012) by virtue of The Specified Products from China (Restriction on First Placing on the Market) (Scotland) Amendment Regulations 2012 (S.S.I. 2012/3), regs. 1, 2(4)

Enforcement S

5.—(1) Each local authority shall execute and enforce these Regulations within its area.

(2) A local authority may authorise in writing any person (whether or not an officer of that authority) to act in matters arising under these Regulations.

(3) An authorised officer shall have the same powers as an authorised officer of an enforcement authority under section 32 (powers of entry) of the Food Safety Act 1990 M4 .

(4) Each local authority shall give such assistance and information to the Scottish Ministers and the [F10 Food Standards Scotland] as they may reasonably request in connection with the execution and enforcement of these Regulations.

[F11 (5) Each local authority within its area shall ensure that the requirements in the following provisions are adhered to:—

(a) Article 5 of the Commission Decision (which is concerned with the conditions under which rice products may be placed on the market, the official controls to be carried out and the measures to be taken with regard to non-compliant consignments); and

(b) the first sentence of Article 7 of that Decision (which is concerned with the control of splitting of consignments).]

Textual Amendments

F10 Words in reg. 5(4) substituted (1.4.2015) by The Food (Scotland) Act 2015 (Consequential and Transitional Provisions) Order 2015 (S.S.I. 2015/100), arts. 1(2), 2, sch. para. 20

F11 Reg. 5(5) inserted (12.1.2012) by The Specified Products from China (Restriction on First Placing on the Market) (Scotland) Amendment Regulations 2012 (S.S.I. 2012/3), regs. 1, 2(5)

Marginal Citations

M4 1990 c. 16. Section 1(1) and 2 (regarding the meaning of “food” and other basic expressions) was substituted by the Food Safety Act 1990 (Amendment) Regulations 2004 (S.I. 2004/2990).

Recovery of costs S

6.  The costs mentioned in [F12 Article 8] of the Commission Decision shall be payable by the the food business operator [F13 or feed business operator] to the local authority and shall be recoverable by the local authority as a debt from the food business operator concerned.

Textual Amendments

F12 Words in reg. 6 substituted (12.1.2012) by The Specified Products from China (Restriction on First Placing on the Market) (Scotland) Amendment Regulations 2012 (S.S.I. 2012/3), regs. 1, 2(6)(a)

F13 Words in reg. 6 inserted (12.1.2012) by The Specified Products from China (Restriction on First Placing on the Market) (Scotland) Amendment Regulations 2012 (S.S.I. 2012/3), regs. 1, 2(6)(b)

Application of various provisions of the Food Safety Act 1990 S

7.—(1) The following provisions of the Food Safety Act 1990 shall apply for the purposes of these Regulations with the modification that any reference in those provisions to that 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 21 (defence of due diligence) M5 , with the modification that subsections (2) to (4) shall apply in relation to an offence under regulation 3(2) as they apply in relation to an offence under section 14 or 15, that in subsections (2)(a) and (3)(b) the references to “food” shall be deemed to be references to feed or food and that in subsection (4)(b) the references to “sale or intended sale” shall be deemed to be references to “[F14 placing on the market]”;

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

(d) section 35(1) to (3) (punishment of offences) M6 , in so far as it relates to offences under section 33 as applied by sub paragraph (c);

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

(f) section 36A (offences by Scottish partnerships) M7 ; and

(g) section 44 (protection of officers acting in good faith), with the modification that the references to “food authority” shall be deemed to be references to “local authority”.

(2) For the purposes of these Regulations the provisions mentioned in paragraph (1) shall apply to feed as they apply to food.

Textual Amendments

F14 Words in reg. 7(1)(b) substituted (12.1.2012) by The Specified Products from China (Restriction on First Placing on the Market) (Scotland) Amendment Regulations 2012 (S.S.I. 2012/3), regs. 1, 2(7)

Marginal Citations

M5 Section 21 was amended by S.I. 2004/3279.

M6 Section 35(1) is read with the Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), s45. Section 35(3) was amended by S.I. 2004/3279.

M7 Section 36A was inserted by the Food Standards Act 1999 (1999 c. 28), Schedule 5, paragraph 16.

[F15 Transitional provision S

8.— (1) Until 5th August 2013, the prohibition in regulation 3(1) does not apply in relation to any rice product, other than a rice product which corresponds to CN Codes 1905 90 60, 1905 90 90 or 2103 90 90, provided that—

(a) the product arrived in the Union before 4th July 2013; and

(b) the placing on the market of the product would not have constituted an offence under these Regulations as they stood immediately before the coming into force of the Specified Products from China (Restriction on First Placing on the Market) (Scotland) Amendment Regulations 2013.

(2) Until 5th October 2013, the prohibition in regulation 3(1) does not apply in relation to a rice product which corresponds to CN Codes 1905 90 60, 1905 90 90 or 2103 90 90.]

Textual Amendments

F15 Reg. 8 substituted (4.7.2013) by The Specified Products from China (Restriction on First Placing on the Market) (Scotland) Amendment Regulations 2013 (S.S.I. 2013/221), regs. 1, 2(4)

S ROBISON

Authorised to sign by the Scottish Ministers

St Andrew's House,

Edinburgh

Explanatory Note

(This note is not part of the Regulations)

These Regulations which extend to Scotland only, implement Commission Decision 2008/289/EC on emergency measures regarding the unauthorised genetically modified organism “Bt 63” in rice products.

These Regulations–

(a)

prohibit the first placing on the market of any specified “rice product” (defined in regulation 2(1)), except where–

(i)

it is accompanied by–

(aa)

an original analytical report based on a particular construct-specific method for detection of the genetically modified rice “Bt 63”, issued by an official or accredited laboratory, demonstrating that the product does not contain or consist of or is not produced from the genetically modified rice “Bt 63”, or

(bb)

if it does not contain or consist of rice or is not produced from rice, a statement from the operator responsible for the consignment indicating that the food does not contain or consist of rice or is not produced from rice; or

(ii)

the operator established in the Community who is responsible for the first placing on the market of the product has had the product tested and the analytical report in respect of that test demonstrates that it does not contain the genetically modified rice “Bt 63”; (regulation 3(1)(a)) and

(iii)

specified requirements for split consignments are complied with (regulation 3(1)(b));

(b)

provide that a person who knowingly contravenes that prohibition is guilty of an offence and prescribe penalties for that offence (regulation 3(2));

(c)

require an operator who becomes aware of a positive result of a test for the presence of the genetically modified rice “Bt 63” in a specified rice product to inform the Food Standards Agency of that result immediately (regulation 4(1));

(d)

provide that a person who without reasonable excuse fails to comply with that requirement is guilty of an offence and prescribe penalties for that offence (regulation 4(2));

(e)

provide for their enforcement (regulation 5);

(f)

provide that the costs incurred in relation to Articles 2 and 4 of the Commission Decision are borne by the operators responsible for the first placing on the market (regulation 6); and

(g)

apply with modifications certain provisions of the Food Safety Act 1990 for the purposes of the Regulations (regulation 7).

A full regulatory impact assessment of the effect that these Regulations would have on business costs has been prepared and placed in the Scottish Parliament Information Centre. Copies can be obtained from The Food Standards Agency, 6th Floor, 88 St. Magnus House, 25 Guild Street, Aberdeen, AB11 6NJ.