Statutory Instruments
FOOD, ENGLAND
Made
22nd May 2002
Laid before Parliament
22nd May 2002
Coming into force
18th June 2002
The Secretary of State, in exercise of the powers conferred on him by sections 16(1)(a) and (f), 17(2), 26(1)(a) and 26(3) and 48(1) of the Food Safety Act 1990(1), and now vested in him(2), having had regard, in accordance with section 48(4A) of that Act, to relevant advice given by the Food Standards Agency, and after 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(3), and in accordance with section 48(4) and (4B) of that Act, makes the following Regulations:
1. These Regulations may be cited as the Contaminants in Food (England) Regulations 2002, shall come into force on 18th June 2002 and shall extend to England only.
2.—(1) In these Regulations—
“the Act” means the Food Safety Act 1990;
“the Commission Regulation” means Commission Regulation (EC) No. 466/2001 setting maximum levels for certain contaminants in foodstuffs(4) as amended by Commission Regulation (EC) No. 221/2002(5), Commission Regulation (EC) No. 257/2002(6), Commission Regulation (EC) No. 472/2002(7) as corrected by a corrigendum published on 23rd March 2002(8) and Commission Regulation (EC) No. 563/2002(9);
“Directive 85/591/EEC” means Council Directive 85/591/EEC concerning the introduction of Community methods of sampling and analysis for the monitoring of foodstuffs intended for human consumption(10);
“Directive 93/99/EEC” means Council Directive 93/99/EEC on the subject of additional measures concerning the official control of foodstuffs(11);
“Directive 98/53/EC” means Commission Directive 98/53/EC laying down the sampling methods and the methods of analysis for the official control of the levels for certain contaminants in foodstuffs(12) as amended by Commission Directive 2002/27/EC(13);
“Directive 2001/22/EC” means Commission Directive 2001/22/EC laying down the sampling methods and the methods of analysis for the official control of the levels of lead, cadmium, mercury and 3–MCPD in foodstuffs(14), as corrected by Commission Decision 2001/873/EC(15);
“Directive 2002/26/EC” means Commission Directive 2002/26/EC laying down the sampling methods and the methods of analysis for the official control of the levels of Ochratoxin A in foodstuffs(16);
“EEA Agreement” means the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 as adjusted by the Protocol signed at Brussels on 17th March 1993;
“EEA State” means a State which is a Contracting Party to the EEA Agreement;
“food authority” includes neither the appropriate Treasurer referred to in section 5(1)(c) of the Act (which deals with the Inner Temple and the Middle Temple) nor a port health authority;
“port health authority” means a port health authority for a port health district constituted under section 2(4) of the Public Health (Control of Disease) Act 1984(17) and, in relation to a port health authority, “authorised officer” means any person (whether or not an officer of the authority) who is authorised by the authority in writing to act in matters arising under these Regulations; and
“Regulation 2375/2001/EC” means Council Regulation (EC) No. 2375/2001 amending Commission Regulation (EC) No. 466/2001 setting maximum levels for certain contaminants in foodstuffs(18).
(2) Other expressions used in these Regulations and in the Commission Regulation have the same meaning as in the Commission Regulation.
3.—(1) Subject to regulations 8 and 9, a person shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale if—
(a)before 1st July 2002—
(i)he places on the market any food (other than authorised spinach or authorised lettuce) which is covered by, but fails to meet the requirements of, Article 1.1, 2.1, 2.2 or 4.1 of the Commission Regulation, as read with Articles 1.2 and 4.3 of that Regulation, or
(ii)he contravenes Article 2.3 or 4.2 of that Regulation;
(b)on or after 1st July 2002, but before 1st January 2005—
(i)he places on the market any food (other than authorised spinach or authorised lettuce) which is covered by, but fails to meet the requirements of, Article 1.1, 2.1, 2.2 or 4.1 of the Commission Regulation as amended by Regulation 2375/2001/EC, as read with Articles 1.2 and 4.3 of the Commission Regulation as so amended, or
(ii)he contravenes Article 2.3, 4.2 or 4a of the Commission Regulation as so amended;
(c)on or after 1st January 2005—
(i)he places on the market any food (other than authorised spinach) which is covered by, but fails to meet the requirements of, Article 1.1, 2.1, 2.2 or 4.1 of the Commission Regulation as amended by Regulation 2375/2001/EC, as read with Articles 1.2 and 4.3 of the Commission Regulation as so amended, or
(ii)he contravenes Article 2.3, 4.2 or 4a of the Commission Regulation as so amended; or
(d)he knowingly contravenes or fails to comply with the requirements of a notice given under section 9(2)(a) of the Act as applied for the purposes of these Regulations by regulation 7.
(2) For the purposes of this regulation—
(a)“authorised spinach” means spinach of the kind specified in point 1.1 of section 1 of Annex I to the Commission Regulation, which is grown in the United Kingdom in accordance with the proviso to Article 3.1 of that Regulation and is intended for human consumption there; and
(b)“authorised lettuce” means lettuce of the kind specified in point 1.3 or in point 1.4 of section 1 of Annex I to the Commission Regulation, which is grown in the United Kingdom in accordance with the proviso to Article 3.1 of that Regulation and is intended for human consumption there.
4.—(1) Subject to paragraph (2), it shall be the duty of each port health authority to execute and enforce these Regulations within its district.
(2) In relation to any place which is not situated in the district of a port health authority, these Regulations shall be executed and enforced by the food authority for the area in which that place is situated.
5.—(1) In its application to the taking of a sample of any food specified in sections 1 to 4 of Annex I to the Commission Regulation, section 29 of the Act shall be modified so as to limit the power to take samples under subsection (b) and (d) of that section to the taking of samples in accordance with the methods of taking samples described or referred to—
(a)(subject to the requirement specified in paragraph (2)) in the Annex to Commission Directive 79/700/EEC establishing Community methods of sampling for the official control of pesticide residues in and on fruit and vegetables(19), where the food concerned is of a description specified in section 1 of Annex I to the Commission Regulation to the sampling of which that Directive applies pursuant to Article 1.3 of that Regulation;
(b)in Annex I to Directive 98/53/EC, where the food concerned is of a description specified in section 2 of Annex I to the Commission Regulation to the sampling of which that Directive applies pursuant to that Article;
(c)in Annex I to Directive 2002/26/EC, where the food concerned is of a description specified in that section to the sampling of which that Directive applies pursuant to that Article; and
(d)in Annex I to Directive 2001/22/EC, where the food concerned is of a description specified in section 3 or 4 of Annex I to the Commission Regulation to the sampling of which that Directive applies pursuant to that Article.
(2) The requirement referred to in sub-paragraph (a) of paragraph (1) is that, in the case of lettuce of the kind specified in point 1.3 or 1.4 of Section 1 of Annex I to the Commission Regulation, the minimum number of units required for each laboratory sample shall be ten.
(3) Where, pursuant to section 29(b) or (d) of the Act as modified by paragraph (1), an authorised officer has taken a sample of any food of a description to which sub-paragraph (b) of that paragraph applies, he shall ensure that—
(a)the sample is prepared in accordance with—
(i)paragraphs 1.1, 2 and 3 of Annex II to Directive 98/53/EC, and
(ii)in the case of whole nuts, paragraph 1.2 of that Annex;
(b)any analysis of the sample is carried out in accordance with methods of analysis which—
(i)so far as practicable, comply with paragraphs 1 and 2 of the Annex to Directive 85/591/EEC, and
(ii)meet the criteria specified in paragraph 4.3 of Annex II to Directive 98/53/EC as read with the notes to that paragraph;
(c)any analysis is carried out by a laboratory which complies with Directive 93/99/EEC; and
(d)the reporting of the results of the analysis of that sample—
(i)makes use of the definitions in paragraph 4.1 of Annex II to Directive 98/53/EC, and
(ii)is in accordance with paragraph 4.4 of that Annex.
(4) Where, pursuant to section 29(b) or (d) of the Act as modified by paragraph (1), an authorised officer has taken a sample of food of a description to which sub-paragraph (c) of that paragraph applies, he shall ensure that—
(a)the sample is prepared in accordance with paragraphs 1 to 3 of Annex II to Directive 2002/26/EC;
(b)any analysis of the sample is carried out in accordance with methods of analysis which—
(i)comply with paragraphs 1 and 2 of the Annex to Council Directive 85/591/EEC, and
(ii)meet the criteria specified in paragraph 4.3 of Annex II to Directive 2002/26/EC as read with the notes to that paragraph;
(c)any analysis is carried out by a laboratory which complies with Directive 93/99/EEC; and
(d)the reporting of the results of the analysis of that sample—
(i)makes use of the definitions in paragraph 4.1 of Annex II to Directive 2002/26/EC, and
(ii)is in accordance with paragraph 4.4 of that Annex.
(5) Where, pursuant to section 29(b) or (d) of the Act as modified by paragraph (1), an authorised officer has taken a sample of food of a description to which sub-paragraph (d) of that paragraph applies, he shall ensure that—
(a)the sample is prepared in accordance with paragraphs 1 and 2 of Annex II to Directive 2001/22/EC, as read, in the case of paragraph 2, with the note thereto;
(b)any analysis of the sample is carried out in accordance with methods of analysis which—
(i)so far as practicable, comply with paragraphs 1 and 2 of the Annex to Directive 85/591/EEC,
(ii)in the case of analysis for lead (other than in wine), mercury or cadmium, meet the criteria specified in paragraph 3.3.1 of Annex II to Directive 2001/22/EC,
(iii)in the case of analysis for lead in wine, comply with the second sub-paragraph of paragraph 3.2 of that Annex, and
(iv)in the case of analysis for 3–MCPD, meet the criteria specified in paragraph 3.3.2 of that Annex as read with the note to that paragraph;
(c)any analysis of the sample is carried out by a laboratory which complies with Directive 93/99/EEC;
(d)any analysis of the sample is carried out in such a way as to comply with the first and second sub-paragraphs of paragraph 3.4 of Annex II to Directive 2001/22/EC as read in the case of the second sub-paragraph with the note thereto; and
(e)the reporting of the results of the analysis of that sample—
(i)makes use of the definitions in paragraph 3.1 of Annex II to Directive 2001/22/EC as read with the note thereto, and
(ii)is in accordance with the third sub-paragraph of paragraph 3.4 and with paragraph 3.6 of that Annex.
6. In any proceedings for an offence consisting of a contravention of regulation 3 it shall be a defence for the accused to prove—
(a)that the food in respect of which the offence is alleged to have been committed was intended for export to a country which has legislation analogous to these Regulations and that it complies with that legislation; and
(b)in the case of export to an EEA State, that the legislation complies with the Commission Regulation or, if the matter constituting the alleged offence occurred on or after 1st July 2002, with the Commission Regulation as amended by Regulation 2375/2001/EC.
7.—(1) The following provisions of the Act shall apply for the purposes of these Regulations with the modification that any reference in those provisions to the Act or Part thereof shall be construed as a reference to these Regulations—
(a)section 3 (presumption that food is intended for human consumption);
(b)section 20 (offences due to fault of another person);
(c)section 21 (defence of due diligence), as it applies for the purposes of section 8, 14 or 15;
(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), in so far as it relates to offences under section 33(1) as applied by sub-paragraph (e);
(h)section 35(2) and (3), insofar as it relates to offences under section 33(2) as applied by sub-paragraph (f);
(i)section 36 (offences by bodies corporate); and
(j)section 44 (protection of officers acting in good faith).
(2) Subject to paragraphs (3) and (4), 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 or a port health authority may at all reasonable times inspect any food intended for human consumption 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,
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 (other than authorised spinach or authorised lettuce) contravenes regulation 3(1)(a)(i), (b)(i) or (c)(i) of the Contaminants in Food (England) Regulations 2002.
(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 the sampling required by Directive 98/53/EC, Directive 2001/22/EC or Directive 2002/26/EC, as appropriate, or
(b)seize the food and remove it in order to have it dealt with by a justice of the peace;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.
(3) Where the authorised officer exercises the powers conferred by subsection (2)(a) above, he shall, as soon as is reasonably practicable and in any event within 21 days, determine whether or not he is satisfied that the food complies with the requirements of regulation 3(1)(a)(i), (b)(i) or (c)(i) of the above Regulations, as appropriate and—
(a)if he is so satisfied, shall forthwith withdraw the notice;
(b)if he is 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, he shall inform the person in charge of the food of his intention to have it dealt with by a justice of the peace and—
(a)any person who under regulation 3(1)(a)(i), (b)(i) or (c)(i) of the above Regulations might be liable to a prosecution in respect of the food shall, if he 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 consisting of a contravention of regulation 3(1)(a)(i), (b)(i) or (c)(i) of the above Regulations in relation to that food.
(5) If it appears to a justice of the peace, on the basis of such evidence as he considers appropriate in the circumstances, that any food falling to be dealt with by him under this section fails to comply with the requirements of regulation 3(1)(a)(i), (b)(i) or (c)(i) of the above Regulations, he 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 justice of the peace by whom any food falls to be dealt with under this section refuses to condemn it, the food authority or, as the case may be, port health 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 arbitration.”.
(3) The expressions “authorised officer”, “food authority”, “port health authority”, “human consumption”, “placing on the market”, “authorised spinach”, “authorised lettuce”, “Directive 98/53/EC”, “Directive 2001/22/EC” and “Directive 2002/26/EC”, 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), shall, for those purposes, bear the meanings that those expressions respectively bear in these Regulations.
(4) Section 2 of the Act (extended meaning of “sale” etc.) shall apply in relation to section 9 of the Act so far as it applies for the purposes of these Regulations by virtue of paragraph (2).
8. Regulation 3(1)(a)(i), (b)(i) and (c)(i) shall not apply in relation to any food lawfully placed on the market in the European Community before 5th April 2002 which is covered by, but fails to meet the requirements of, Article 1.1, 2.1 or 2.2 of the Commission Regulation, as read with Article 1.2 of that Regulation, to the extent that the failure consists in the food being placed on the market containing a contaminant specified in section 3 or 4 of Annex I to that Regulation at a level higher than that specified in the second column of the section concerned.
9. Regulation 3(1)(a)(ii), (b)(ii) and (c)(ii) shall not apply in relation to any contravention of Article 2.3 of the Commission Regulation, to the extent that the contravention consists in the use as a food ingredient, for the production of a compound foodstuff, of food lawfully placed on the market in the European Community before 5th April 2002 and containing a contaminant specified in section 3 or 4 of Annex I to that Regulation at a level higher than that specified in the second column of the section concerned.
10. In Schedule 1 to the Food Safety (Sampling and Qualifications) Regulations 1990(20) so far as they extend to England (provisions to which those Regulations do not apply) for each entry relating to the Contaminants in Food Regulations 1997 there shall be substituted the following entry—
| “The Contaminants in Food (England) Regulations 2002 (to the extent that a sample falls to be prepared and analysed in accordance with regulation 5 thereof) | S.I. 2002/ ”. |
11. The instruments specified in column 1 of the Schedule shall, in so far as they extend to England, be revoked to the extent specified in column 2 of that Schedule.
Signed by authority of the Secretary of State for Health
Yvette Cooper
Parliamentary Under Secretary of State,
Department of Health
22nd May 2002
Regulation 11
| Column 1 | Column 2 | |
|---|---|---|
| Instruments revoked | Extent of Revocation | |
| The Lead in Food Regulations 1979 | (SI 1979/1254) | The whole Regulations |
| The Food (Revision of Penalties) Regulations 1982 | (SI 1982/1727) | The reference to the Lead in Food Regulations 1979 in column 2 of Schedule 1 and the corresponding entries in columns 1, 3 and 4 of that Schedule |
| The Food (Revision of Penalties) Regulations 1985 | (SI 1985/67) | The reference to the Lead in Food Regulations 1979 in column 2 of Part I of the Schedule and the corresponding entries in columns 1 and 3 of that Part |
| The Food Safety Act 1990 (Consequential Modifications) (England and Wales) Order 1990 | (SI 1990/2486) | Article 19(8); The reference to the Lead in Food Regulations 1979 in column 2 of Part I of Schedule 1 and the corresponding entries in columns 1 and 3 of that Part; The reference to the Lead in Food Regulations 1979 in column 2 of Schedule 2 and the corresponding entry in column 1 of that Schedule; The reference to the Lead in Food Regulations 1979 in column 2 of Part I of Schedule 3 and the corresponding entry in column 1 of that Part; The reference to the Lead in Food Regulations 1979 in column 2 of Schedule 5 and the corresponding entries in columns 1 and 3 of that Schedule; The reference to the Lead in Food Regulations 1979 in column 2 of Schedule 7 and the corresponding entries in columns 1 and 3 of that Schedule |
| The Food Safety (Exports) Regulations 1991 | (SI 1991/1476) | The reference to the Lead in Food Regulations 1979 in column 2 of Part I of Schedule 1 and the corresponding entries in columns 1 and 3 of that Part |
| The Flavourings in Food Regulations 1992 | (SI 1992/1971) | Regulation 11 in so far as it amends the Lead in Food Regulations 1979 |
| The Colours in Food Regulations 1995 | (SI 1995/3124) | The reference to the Lead in Food Regulations 1979 in column 1 of Schedule 6 and the corresponding entries in columns 2 and 3 of that Schedule |
| The Food (Miscellaneous Revocations and Amendments) Regulations 1995 | (SI 1995/3267) | The reference to the Lead in Food Regulations 1979 in column 1 of the Schedule and the corresponding entries in columns 2 and 3 thereof |
| The Contaminants in Food Regulations 1997 | (SI 1997/1499) | The whole Regulations |
(This note is not part of the Regulations)
1. These Regulations, which extend to England only and revoke and re-enact with changes the Contaminants in Food Regulations 1997 (S.I. 1997/1499, as amended)—
(a)make provision for the enforcement and execution of Commission Regulation (EC) No. 466/2001 setting maximum levels for certain contaminants in foodstuffs (OJ No. L77, 16.3.2001, p.1, as amended) (“the Commission Regulation”); and
(b)implement the following Commission Directives—
(i)Commission Directive 2001/22/EC laying down the sampling methods and the methods of analysis for the official control of the levels of lead, cadmium, mercury and 3–MCPD in foodstuffs (OJ No. L77, 16.3.2001, p.1, as corrected by a Commission Decision of 4th December 2001 (OJ No. L325, 8.12.2001, p.34)),
(ii)Commission Directive 2002/26/EC laying down the sampling methods and the methods of analysis for the official control of the levels of ochratoxin A in foodstuffs (OJ No. L75, 16.3.2002, p.38), and
(iii)Commission Directive 2002/27/EC amending Directive 98/53/EC laying down the sampling methods and the methods of analysis for the official control of the levels for certain contaminants in foodstuffs (OJ No. L75, 16.3.2002, p.44).
2. These Regulations—
(a)subject to transitional provisions (regulations 8 and 9), provide that it is an offence to—
(i)place on the market certain foods if they contain contaminants of any kind specified in the Commission Regulation at levels exceeding those specified (subject to a derogation applicable to certain types of lettuce and spinach),
(ii)use foods containing such contaminants at such levels as ingredients in the production of certain foods,
(iii)mix foods which comply with the maxima referred to above with foods which do not,
(iv)mix foods to which the Commission Regulation relates and which are intended for direct consumption with foods to which the Commission Regulation relates and which are intended to be sorted or otherwise treated prior to consumption, or
(v)detoxify by chemical treatments food not complying with the limits specified in the Commission Regulation (regulation 3);
(b)specify the enforcement authorities (regulation 4);
(c)prescribe sampling and analysis requirements in relation to foods subject to the Commission Regulation, and in so doing modify section 29 of the Food Safety Act 1990 so far as it applies to the taking of samples of the foods concerned (regulation 5);
(d)provide a defence in relation to exports in implementation of Articles 2 and 3 of Council Directive 89/397/EEC (OJ No. L186, 30.6.89, p.23) on the official control of foodstuffs, as read with the ninth recital to that Directive (regulation 6);
(e)provide for the application of specified provisions of the Food Safety Act 1990 for the purposes thereof (regulation 7);
(f)make consequential amendments to the Food Safety (Sampling and Qualifications) Regulations 1990 (regulation 10); and
(g)revoke specified Instruments (including, as already indicated, the Contaminants in Food Regulations 1997) (regulation 11 and the Schedule).
3. A regulatory impact assessment has been prepared and placed in the Library of each House of Parliament, together with a transposition note setting out how the main elements of the Commission Directives referred to in paragraph 1 above are transposed for the purposes of these Regulations. Copies may be obtained from the Chemical Contaminants and Animal Feed Division of the Food Standards Agency, Aviation House, 125 Kingsway, London WC2B 6NH.
Functions formerly exercisable by “the Ministers” (being, in relation to England and Wales and acting jointly, the Minister of Agriculture, Fisheries and Food and the Secretaries of State respectively concerned with health in England and food and health in Wales and, in relation to Scotland, the Secretary of State) are now exercisable in relation to England by the Secretary of State pursuant to paragraph 8 of Schedule 5 to the Food Standards Act 1999 (1999 c. 28). Those functions, so far as exercisable in relation to Wales, were transferred to the National Assembly for Wales by S.I. 1999/672 as read with section 40(3) of the 1999 Act. Those functions, so far as exercisable in relation to Scotland, were transferred to the Scottish Ministers by section 53 of the Scotland Act 1998 (1998 c. 46) as read with section 40(2) of the 1999 Act. Section 17(2) was amended by paragraph 12(b), and section 48 by paragraph 21, of Schedule 5 to the 1999 Act. Regulation 13(4) of S.I. 2000/656 expressly authorises the Secretary of State to revoke and re-make existing Regulations made by the Minister of Agriculture, Fisheries and Food (whether with others or not) under the Food Safety Act 1990.
OJ No. L31, 1.2.2002, p.1.
OJ No. L77, 16.3.2001, p.1.
OJ No. L37, 7.2.2002, p.4.
OJ No. L41, 13.2.2002, p.12.
OJ No. L75, 16.3.2002, p.18.
OJ No. L80, 23.3.2002, p.42.
OJ No. L86, 3.4.2002, p.5.
OJ No. L372, 31.12.85, p.50.
OJ No. L290, 24.11.93, p.14.
OJ No. L201, 17.7.1998, p.93.
OJ No. L75, 16.3.2002, p.44.
OJ No. L77, 16.3.2001, p.14.
OJ No. L325, 8.12.2001, p.34.
OJ No. L75, 16.3.2002, p.38.
OJ No. L321, 6.12.2001, p.1.
OJ No. L207, 15.8.1979, p.26.