The Food Additives, Flavourings, Enzymes and Extraction Solvents (England) Regulations 2013

PART 1 E+W+S Introductory

Modifications etc. (not altering text)

C1 Pt. 1 applied in part (with modifications) (1.10.2023) by The Windsor Framework (Retail Movement Scheme: Public Health, Marketing and Organic Product Standards and Miscellaneous Provisions) Regulations 2023 (S.I. 2023/959), regs. 1(2), 4(b), Sch. 2 (with regs. 7, 8)

Title, application and commencement E+W+S

1.  These Regulations may be cited as the Food Additives, Flavourings, Enzymes and Extraction Solvents (England) Regulations 2013, apply in relation to England only and come into force on 31st October 2013.

Interpretation E+W+S

2.—(1) In these Regulations —

“the Act” means the Food Safety Act 1990;

F1 ...

“Regulation 2065/2003” means Regulation (EC) No 2065/2003 of the European Parliament and of the Council on smoke flavourings used or intended for use in or on foods M1 ;

“Regulation 1332/2008” means Regulation (EC) No 1332/2008 of the European Parliament and of the Council on food enzymes M2 ;

“Regulation 1333/2008” means Regulation (EC) No 1333/2008 of the European Parliament and of the Council on food additives M3 , as read with —

(a)

Commission Regulation (EU) No 1129/2011 amending Annex II to Regulation (EC) No 1333/2008 of the European Parliament and of the Council by establishing a Union list of food additives M4 ,

(b)

Commission Regulation (EU) No 1130/2011 amending Annex III to Regulation (EC) No 1333/2008 of the European Parliament and of the Council on food additives by establishing a Union list of food additives for use in food additives, food enzymes, food flavourings and nutrients M5 , and

(c)

Commission Regulation (EU) No 231/2012 laying down specifications for food additives listed in Annexes II and III to Regulation (EC) No 1333/2008 of the European Parliament and of the Council M6 ;

“Regulation 1334/2008” means Regulation (EC) No 1334/2008 of the European Parliament and of the Council on flavourings and certain food ingredients with flavouring properties for use in and on foods M7 , as read with Commission Regulation (EU) No 873/2012 on transitional measures concerning the Union list of flavourings and source materials set out in Annex I to Regulation (EC) 1334/2008 of the European Parliament and of the Council M8 ;

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

“food authority” has the meaning given by section 5 of the Act except that it does not include the appropriate Treasurer of the Inner Temple and Middle Temple;

“the [F2 retained] EU Regulations” means Regulation 2065/2003, Regulation 1332/2008, Regulation 1333/2008 and Regulation 1334/2008.

(2) Other expressions used in these Regulations and in the F3 ... instruments listed in paragraph (4) have the same meaning in these Regulations as they do in those instruments.

(3) Any reference in these Regulations to an Article of or Annex to any of the F4 ... instruments listed in paragraph (4) is a reference to that Article or Annex as amended from time to time.

(4) The [F5 instruments are] Regulation 2065/2003, Regulation (EC) No 1331/2008 of the European Parliament and of the Council establishing a common authorisation procedure for food additives, food enzymes and food flavourings M9 , Regulation 1332/2008, Regulation 1333/2008 and Regulation 1334/2008.

(5) Where any functions under the Act are assigned —

(a) by an order under section 2 or 7 of the Public Health (Control of Disease) Act 1984 M10 , to a port health authority;

(b) by an order under section 6 of the Public Health Act 1936 M11 , to a joint board for a united district; or

(c) by an order under paragraph 15(6) of Schedule 8 to the Local Government Act 1985 M12 , to a single authority for a metropolitan county,

any reference in these Regulations to a food authority is to be construed, so far as relating to those functions, as a reference to the authority to which they are so assigned.

Textual Amendments

F1 Words in reg. 2(1) omitted (31.12.2022) by virtue of The Food and Feed (Miscellaneous Amendments) Regulations 2022 (S.I. 2022/1351), regs. 1(1), 3(2)(a)(i)

F2 Word in reg. 2(1) inserted (31.12.2022) by The Food and Feed (Miscellaneous Amendments) Regulations 2022 (S.I. 2022/1351), regs. 1(1), 3(2)(a)(ii)

F3 Word in reg. 2(2) omitted (31.12.2022) by virtue of The Food and Feed (Miscellaneous Amendments) Regulations 2022 (S.I. 2022/1351), regs. 1(1), 3(2)(b)

F4 Word in reg. 2(3) omitted (31.12.2022) by virtue of The Food and Feed (Miscellaneous Amendments) Regulations 2022 (S.I. 2022/1351), regs. 1(1), 3(2)(c)

F5 Words in reg. 2(4) substituted (31.12.2022) by The Food and Feed (Miscellaneous Amendments) Regulations 2022 (S.I. 2022/1351), regs. 1(1), 3(2)(d)

Marginal Citations

M1 OJ No. L309, 26.11.2003, p.1. This instrument was amended by Regulation (EC) No 596/2009 of the European Parliament and of the Council (OJ No. L188, 18.7.2009, p.14).

M2 OJ No. L354, 31.12.2008, p.7. This instrument was last amended by Commission Regulation (EU) No 1056/2012 (OJ No. L313, 13.11.2012, p.9).

M3 OJ No. L354, 31.12.2008, p.16. This instrument was last amended by Commission Regulation (EU) No 739/2013 (OJ No. L204, 31.7.2013, p.35).

M4 OJ No. L295, 12.11.2011, p.1.

M5 OJ No. L295, 12.11.2011, p.178.

M6 OJ No. L83, 22.3.2012, p.1. This instrument was last amended by Commission Regulation (EU) No 739/2013 (OJ No. L204, 31.7.2013, p.35).

M7 OJ No. L354, 31.12.2008, p.34. This instrument was last amended by Commission Regulation (EU) No 545/2013 (OJ No. L163, 15.6.2013, p.15).

M8 OJ No. L267, 2.10.2012, p.162.

M9 OJ No. L354, 31.12.2008, p.1. This instrument is implemented by Commission Regulation (EU) No 234/2011 (OJ No. L64, 11.03.2011, p.15) and that Regulation has been amended by Commission Implementing Regulation (EU) No 562/2012 (OJ No. L168, 28.06.2012, p.21).

M10 1984 c.22; section 7(3)(d) was substituted by paragraph 27 of Schedule 3 to the Food Safety Act 1990 (1990 c.16).

M11 1936 c.49; section 6 is to be read with paragraph 1 of Schedule 3 to the Food Safety Act 1990.

M12 1985 c.51; paragraph 15(6) was amended by paragraph 31(b) of Schedule 3 to the Food Safety Act 1990.

PART 2 E+W+S Food additives, flavourings and enzymes

Offence of contravening EU requirements on food additives E+W+S

3.  Any person who contravenes, or who uses or places on the market a product that fails to comply with, any of the provisions of Regulation 1333/2008 specified in the first column of Table 1 of Schedule 1, as read with transitional measures contained in or to be read with that Regulation, commits an offence.

Offence of contravening EU requirements on flavourings, including smoke flavourings E+W+S

4.  Any person who contravenes, or who uses or places on the market a product which fails to comply with, any of the provisions of Regulation 1334/2008 specified in the first column of Table 1 of Schedule 2, as read with Article 4 (flavouring substances under evaluation) of Commission Implementing Regulation (EU) No 872/2012 adopting the list of flavouring substances provided for by Regulation (EC) No 2232/96 of the European Parliament and of the Council M13 and with transitional measures contained in or to be read with Regulation 1334/2008, commits an offence.

Marginal Citations

M13 OJ No. L267, 2.10.2012, p.1.

5.  Any person who contravenes, or who uses or places on the market a product which fails to comply with, any of the provisions of Regulation 2065/2003 specified in the first column of Table 1 of Schedule 3, as read with Article 20 (transitional measures), commits an offence.

Offence of contravening EU requirements on food enzymes E+W+S

6.  Any person who contravenes, or who uses or places on the market a product which fails to comply with, any of the provisions of Regulation 1332/2008 specified in the first column of Table 1 of Schedule 4, as read with Articles 18 and 24 (transitional measures), commits an offence.

Compliance notices E+W+S

7.—(1) If an authorised officer has reasonable grounds for believing that any person has not complied with, is not complying with, or is not likely to comply with —

(a) any EU provision specified in the first column of Table 2 of Schedule 1, 2, 3 or 4; or

(b) regulation 13(2),

the officer may serve a compliance notice on that person.

(2) A compliance notice must state —

(a) the steps the person must take;

(b) the date and, if appropriate, the time by which each step must be taken;

(c) the reason for the service of the notice and for the steps required to be taken;

(d) that a failure to comply with the notice is an offence; and

(e) the details of the right to appeal against the notice under regulation 8.

(3) An authorised officer may serve a notice on a person withdrawing, varying or suspending a compliance notice.

(4) Any person who fails to comply with a compliance notice served on them commits an offence.

Appeal against a compliance notice E+W+S

8.—(1) Any person served with a compliance notice may appeal against that notice to a magistrates' court.

(2) The procedure on appeal to a magistrates' court under paragraph (1) shall be by way of complaint for an order, and the Magistrates' Courts Act 1980 M14 shall apply to the proceedings.

(3) The period within which an appeal under paragraph (1) may be brought shall be one month from the date on which the compliance notice was served on the person wishing to appeal and the making of a complaint for an order shall be deemed for the purposes of this paragraph to be the bringing of the appeal.

(4) A compliance notice is not suspended pending an appeal unless —

(a) an authorised officer suspends it under regulation 7(3); or

(b) the court directs that it be suspended.

(5) The court may —

(a) confirm the notice or any requirement contained in it;

(b) vary the notice or any requirement contained in it; or

(c) revoke the notice or any requirement contained in it.

Marginal Citations

M14 1980 c.43.

PART 3 E+W+S Extraction solvents

Modifications etc. (not altering text)

C2 Pt. 3 applied in part (with modifications) (1.10.2023) by The Windsor Framework (Retail Movement Scheme: Public Health, Marketing and Organic Product Standards and Miscellaneous Provisions) Regulations 2023 (S.I. 2023/959), regs. 1(2), 4(b), Sch. 2 (with regs. 7, 8)

Controls on extraction solvents E+W+S

F6 9.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F6 Reg. 9 omitted (31.12.2022) by virtue of The Food and Feed (Miscellaneous Amendments) Regulations 2022 (S.I. 2022/1351), regs. 1(1), 3(3)

10.  The provisions of this Part do not apply to any extraction solvent —

(a) used in the production of any food additives, vitamins or any other nutritional additives, unless such food additives, vitamins or other nutritional additives are listed in [F7 Schedule 6]; or

(b) intended for export outside [F8 Great Britain].

Textual Amendments

F7 Words in reg. 10(a) substituted (31.12.2022) by The Food and Feed (Miscellaneous Amendments) Regulations 2022 (S.I. 2022/1351), regs. 1(1), 3(4)

F8 Words in reg. 10(b) substituted (31.12.2020) by S.I. 2019/860, reg. 3 (as substituted by The Food and Feed Hygiene and Safety (Miscellaneous Amendments etc.) (EU Exit) Regulations 2020 (S.I. 2020/1504), regs. 1(2), 18(2))

11.  In this Part “ permitted extraction solvent” means —

(a) an extraction solvent that —

(i) is listed in [F9 Schedule 6],

(ii) is used in accordance with the conditions of use and within any maximum residue limits specified in [F10 Schedule 6],

(iii) does not contain a toxicologically dangerous amount of any element or substance, [F11 and]

(iv) subject to any exceptions deriving from specific purity criteria, does not contain more than 1 mg/kg of arsenic or more than 1 mg/kg lead, F12 ...

F13 (v) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) water to which substances regulating acidity or alkalinity may have been added; or

(c) food substances which possess solvent properties.

Textual Amendments

F9 Words in reg. 11(a)(i) substituted (31.12.2022) by The Food and Feed (Miscellaneous Amendments) Regulations 2022 (S.I. 2022/1351), regs. 1(1), 3(5)(a)

F10 Words in reg. 11(a)(ii) substituted (31.12.2022) by The Food and Feed (Miscellaneous Amendments) Regulations 2022 (S.I. 2022/1351), regs. 1(1), 3(5)(b)

F11 Word in reg. 11(a)(iii) inserted (31.12.2022) by The Food and Feed (Miscellaneous Amendments) Regulations 2022 (S.I. 2022/1351), regs. 1(1), 3(5)(c)

F12 Word in reg. 11(a)(iv) omitted (31.12.2022) by virtue of The Food and Feed (Miscellaneous Amendments) Regulations 2022 (S.I. 2022/1351), regs. 1(1), 3(5)(b)

F13 Reg. 11(a)(v) omitted (31.12.2022) by virtue of The Food and Feed (Miscellaneous Amendments) Regulations 2022 (S.I. 2022/1351), regs. 1(1), 3(5)(e)

12.  No person may use as an extraction solvent in the production of food any extraction solvent that is not a permitted extraction solvent.

13.—(1) No person may place on the market —

(a) an extraction solvent that is not a permitted extraction solvent; or

(b) any food having in it or on it an added extraction solvent that is not a permitted extraction solvent.

(2) No person may place on the market an extraction solvent that does not meet the requirements of regulation 14.

14.—(1) Subject to paragraph (2), the following information must appear on the packaging, container or label —

(a) the commercial name as indicated in [F14 Schedule 6];

(b) a clear indication that the material is of a quality suitable for use for the extraction of food or food ingredients;

(c) a reference by which the batch or lot may be identified;

(d) the name or business name and address of the manufacturer or packer or of a seller established in the [F15 United Kingdom];

(e) the net quantity given as units of volume; and

(f) if necessary, the special storage conditions or conditions of use.

(2) The particulars specified in subparagraphs (c), (d), (e) and (f) of paragraph (1) may alternatively appear on the trade documents relating to the batch or lot which are to be supplied with, or prior to, the delivery.

(3) The information specified in paragraph (1) must be easily visible, clearly legible and indelible.

(4) The information specified in paragraph (1) may be provided in more than one language, but at least one of those languages must be easily understood by the purchaser unless other measures have been taken to ensure that the purchaser is informed of the specified information.

Textual Amendments

F14 Words in reg. 14(1)(a) substituted (31.12.2022) by The Food and Feed (Miscellaneous Amendments) Regulations 2022 (S.I. 2022/1351), regs. 1(1), 3(6)

F15 Words in reg. 14(1)(d) substituted (31.12.2020) by The Food Additives, Flavourings, Enzymes and Extraction Solvents (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/860), regs. 1, 4; 2020 c. 1, Sch. 5 para. 1(1)

PART 4 E+W+S Administration and enforcement

Competent authorities E+W+S

F16 15.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F16 Reg. 15 omitted (31.12.2020) by virtue of The Food Additives, Flavourings, Enzymes and Extraction Solvents (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/860), regs. 1, 5; 2020 c. 1, Sch. 5 para. 1(1)

Enforcement authorities E+W+S

16.  It is the duty of each food authority within its area or district to execute and enforce these Regulations and the [F17 retained] EU Regulations.

Textual Amendments

F17 Word in reg. 16 inserted (31.12.2022) by The Food and Feed (Miscellaneous Amendments) Regulations 2022 (S.I. 2022/1351), regs. 1(1), 3(7)

Offences and penalties E+W+S

17.—(1) Any person who contravenes regulation 12 or 13(1) commits an offence.

(2) Any person guilty of an offence under regulation 3, 4, 5, 6, 7(4) or 17(1) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

Condemnation of food E+W+S

18.  Where any food is certified by a food analyst as being food which it is an offence to place on the market, that food shall be treated for the purposes of section 9 of the Act (under which food may be seized and destroyed under an order of a justice of the peace) as failing to comply with food safety requirements.

Application of various provisions of the Food Safety Act 1990 E+W+S

19.—(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 20 (offences due to fault of another person);

(b) section 21 (defence of due diligence) M15 with the modification that —

(i) subsections (2) to (4) shall apply in relation to an offence under regulation 3, 4, 5, 6, 7(4) or 17(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”;

(c) section 30(8) (which relates to documentary evidence);

(d) section 35(1) (punishment of offences) M16 , in so far as it relates to offences under section 33(1) as applied by paragraph (2)(b);

(e) section 35(2) and (3) M17 , in so far as it relates to offences under section 33(2) as applied by paragraph (2)(c);

(f) section 36 (offences by bodies corporate); and

(g) section 36A (offences by Scottish partnerships) M18 .

(2) 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 is to be construed as including a reference to the [F18 retained] EU Regulations and these Regulations —

(a) section 3 (presumption that food is intended for human consumption) with the modification that the references to “sold” and “sale” are deemed to include references to “placed on the market” and “placing on the market” respectively;

(b) section 33(1) (obstruction etc. of officers);

(c) section 33(2), with the modification that the reference to “any such requirement as is mentioned in subsection (1)(b) above” is deemed to be a reference to any such requirement as is mentioned in that subsection as applied by sub-paragraph (b); and

(d) section 44 (protection of officers acting in good faith).

(3) Section 34 of the Act (time limit for prosecutions) applies to offences under these Regulations as it applies to offences punishable under section 35(2) of the Act.

Textual Amendments

F18 Word in reg. 19(2) inserted (31.12.2022) by The Food and Feed (Miscellaneous Amendments) Regulations 2022 (S.I. 2022/1351), regs. 1(1), 3(8)

Marginal Citations

M15 Section 21 was amended by S.I. 2004/3279.

M16 Section 35(1) is amended by the Criminal Justice Act 2003 (2003 c.44), Schedule 26, paragraph 42, from a date to be appointed.

M17 Section 35(3) was amended by S.I. 2004/3279.

M18 Section 36A was inserted by the Food Standards Act 1999 (1999 c.28), Schedule 5, paragraph 16.

PART 5 E+W+S General

Consequential and other amendments E+W+S

F19 20.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F19 Reg. 20 revoked (13.12.2014) by The Food Information Regulations 2014 (S.I. 2014/1855), Sch. 6 Pt. 1 Entry 31

Revocations E+W+S

21.  The instruments listed in the first column of Schedule 5 are revoked to the extent specified in the second column.

Review E+W+S

22.—(1) The Food Standards Agency must from time to time —

(a) carry out a review of the operation and effect of regulations 2 to 19;

(b) set out the conclusions of the review in a report; and

(c) publish the report.

F20 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) The report must in particular —

(a) set out the objectives intended to be achieved by the regulatory system established by these Regulations;

(b) assess the extent to which those objectives are achieved; and

(c) assess whether those objectives remain appropriate and, if they do, the extent to which they could be achieved with a system that imposes less regulation.

(4) The first report under this regulation must be published before the end of the period of five years beginning with the day on which these Regulations come into force.

(5) Reports under this regulation are afterwards to be published at intervals not exceeding 5 years.

Textual Amendments

F20 Reg. 22(2) omitted (31.12.2022) by virtue of The Food and Feed (Miscellaneous Amendments) Regulations 2022 (S.I. 2022/1351), regs. 1(1), 3(9)

[F21 Transitional provisions: withdrawal from the EU E+W+S

23.— (1) An authorised officer must not serve on a person a compliance notice relating to a failure to comply with regulation 13(2) if—

(a) a product does not comply with regulation 14(1)(d);

(b) the compliance notice would relate to a product that was placed on the market before [F22 1 January 2024]; and

(c) the matter constituting the alleged failure to comply would not have constituted a failure to comply with these Regulations as they applied immediately before IP completion day.

(2) In this regulation, “compliance notice” means a compliance notice pursuant to regulation 7.]

Textual Amendments

F21 Reg. 23 inserted (29.3.2022) by The Food and Feed Safety (Miscellaneous Amendments and Transitional Provisions) Regulations 2022 (S.I. 2022/377), regs. 1(3), 3(2)

F22 Words in reg. 23(1)(b) substituted (30.9.2022) by The Food Information (Amendment of Transitional Provisions) (England) Regulations 2022 (S.I. 2022/938), regs. 1(1), 5

Signed by authority of the Secretary of State for Health.

Anna Soubry

Parliamentary Under-Secretary of State,

Department of Health