The Contaminants in Food (Scotland) Regulations 2013

PART 1 S Introductory

Citation, extent and commencement S

1.  These Regulations may be cited as the Contaminants in Food (Scotland) Regulations 2013, extend to Scotland only and come into force on 1st October 2013.

Commencement Information

I1 Reg. 1 in force at 1.10.2013, see reg. 1

Interpretation S

2.—(1) In these Regulations —

“the Act” means the Food Safety Act 1990;

“Directive 76/621” means Council Directive 76/621/EEC relating to the fixing of the maximum level of erucic acid in oils and fats intended as such for human consumption and in foodstuffs containing added oils or fats(1);

“Directive 80/891” means Commission Directive 80/891/EEC relating to the Community method of analysis for determining the erucic acid content in oils and fats intended to be used as such for human consumption and in foodstuffs containing added oils or fats(2);

“Regulation 1881/2006” means Commission Regulation (EC) No 1881/2006 setting maximum levels for certain contaminants in foodstuffs(3);

“Regulation 629/2008” means Commission Regulation (EC) No 629/2008 amending Regulation (EC) No 1881/2006 setting maximum levels for certain contaminants in foodstuffs(4);

“Regulation 124/2009” means Commission Regulation (EC) No 124/2009 setting maximum levels for the presence of coccidiostats or histomonostats in food resulting from the unavoidable carry-over of these substances in non-target feed(5);

“Regulation 165/2010” means Commission Regulation (EU) No 165/2010 amending Regulation (EC) No. 1881/2006 setting maximum levels for certain contaminants in foodstuffs as regards aflatoxins(6);

“authorised officer” means any person who is authorised in writing, either generally or specifically, by a food authority to act in matters arising under these Regulations;

“food authority” has the meaning given by section 5(2) of the Act;

(2) Any other expression used in these Regulations and in Directive 76/621, Directive 80/891, Regulation 1881/2006 or Regulation 124/2009 has the same meaning in these Regulations as it has in the Directive or Regulation concerned.

(3) Any reference to an Article of or Annex to Directive 76/621, Directive 80/891, 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 Directives or Regulations is to be construed accordingly.

Commencement Information

I2 Reg. 2 in force at 1.10.2013, see reg. 1

PART 2 S Erucic acid in food

Scope S

3.—(1) This Part applies to—

(a) oils, fats and mixtures of the two which are intended as such for human consumption;

(b) compound foodstuffs described directly or by implication as specially prepared for infants and young children, to which oils, fats or mixtures of the two have been added; and

(c) compound foodstuffs other than those described directly or by implication as specially prepared for infants and young children, to which oils, fats or mixtures of the two have been added and the overall fat content of which exceeds 5%.

(2) In paragraph (1) the expressions “infants” and “young children” have the meanings given to them in Article 2 of Commission Directive 2006/141/EC on infant formulae and follow-on formulae and amending Directive 1999/21/EC(7).

Commencement Information

I3 Reg. 3 in force at 1.10.2013, see reg. 1

Controls on erucic acid S

4.—(1) No person may place on the market, for consumption by the final consumer, a product to which this Part applies in which the level of erucic acid exceeds 5%, calculated on the total level of fatty acids in the fat component.

(2) The level of erucic acid in a food is to be determined according to the methods of screening and analysis prescribed in Article 2 of and the Annex to Directive 80/891.

(3) Any person who contravenes paragraph (1) is guilty of an offence.

Commencement Information

I4 Reg. 4 in force at 1.10.2013, see reg. 1

PART 3 S Contaminants in food

Controls on contaminants in food S

5.—(1) Subject to the transitional arrangements contained in—

(a) Article 11 of Regulation 1881/2006;

(b) Article 2 of Regulation 629/2008; or

(c) Article 2 of Regulation 165/2010,

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

(2) The EU provisions are—

(a) Article 1(1) of Regulation 1881/2006 (prohibition on the placing on the market of certain foodstuffs containing contaminants in excess of prescribed limits), 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); and

(iv) the Annex;

(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, derived products thereof and cereals); and

(d) Article 1(1) of Regulation 124/2009 (prohibitions on marketing or mixing foods containing coccidiostats or histomonostats at levels in excess of prescribed limits), as read with Article 1(2) (provisions relating to the application of maximum levels to dried, diluted, processed and compound foodstuffs).

Commencement Information

I5 Reg. 5 in force at 1.10.2013, see reg. 1

PART 4 S Administration and enforcement

Penalties S

6.  Anyone convicted of an offence under regulation 4(3) or regulation 5(1) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

Commencement Information

I6 Reg. 6 in force at 1.10.2013, see reg. 1

Enforcement and competent authorities S

7.—(1) It is the duty of each food authority within its area to execute and enforce these Regulations, Regulation 1881/2006 and Regulation 124/2009.

(2) Each food authority within its area is 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).

Commencement Information

I7 Reg. 7 in force at 1.10.2013, see reg. 1

Application of various sections of the Food Safety Act 1990 S

8.—(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)(8) with the modification that—

(i) subsections (2) to (4) shall apply in relation to an offence under regulation 4(3) or regulation 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 33(3), with the modification that the reference to “subsection (1)(b) above” shall be deemed to be a reference to section 33(1)(b) as applied by sub-paragraph (e);

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

(i) section 35(2) and (3)(9), in so far as it relates to offences under section 33(2) as applied by sub-paragraph (f);

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

(k) section 36A (offences by Scottish partnerships)(10); and

(l) 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 shall 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 4(1) or 5(2) of the Contaminants in Food (Scotland) Regulations 2013 (“the EU 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 sheriff.

(3) Where the authorised officer exercises the power conferred by subsection (2)(a) above, that officer shall, as soon as is reasonably practicable and in any event within 21 days, determine whether or not the food complies with the EU 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 sheriff.

(4) Where an authorised officer exercises the powers conferred by subsection (2)(b) or (3)(b) above, the officer shall inform the person in charge of the food of the intention to have it dealt with by a sheriff and any person who in connection with any of the EU requirements might be liable to a prosecution in respect of the food shall, if that person attends before the sheriff by whom the food falls to be dealt with, be entitled to be heard and to call witnesses.

(5) If it appears to a sheriff, on the basis of such evidence as the sheriff considers appropriate in the circumstances, that any food falling to be dealt with under this section fails to comply with any of the EU requirements the sheriff shall 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 sheriff by whom any food falls to be dealt with under this section refuses to condemn it, the food authority shall 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 shall be determined by a single arbiter appointed, failing agreement between the parties, by the sheriff.

(8) Any person who knowingly contravenes the requirements of a notice under subsection (2)(a) above shall be 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, have the meanings that those expressions have in these Regulations.

Commencement Information

I8 Reg. 8 in force at 1.10.2013, see reg. 1

Consequential amendment S

9.  In Schedule 1 to the Food Safety (Sampling and Qualifications) (Scotland) Regulations 2013(11) (provisions to which those Regulations do not apply), for columns 1 and 2 of the entry relating to the Contaminants in Food (Scotland) Regulations 2010(12) substitute—

“The Contaminants in Food (Scotland) Regulations 2013 (to the extent that a sample falls to be prepared and analysed in accordance with Regulation 1881/2006 as that expression is defined in those Regulations)

S.S.I. 2013/217.”

Commencement Information

I9 Reg. 9 in force at 1.10.2013, see reg. 1

Revocations S

10.  The Regulations specified in the Schedule are revoked.

Commencement Information

I10 Reg. 10 in force at 1.10.2013, see reg. 1

MICHAEL MATHESON

Authorised to sign by the Scottish Ministers

St Andrew’s House,

Edinburgh