2013 No. 2139 (W. 209)
Food, Wales

The Fish Labelling (Wales) Regulations 2013

Made
Laid before the National Assembly for Wales
Coming into force
The Welsh Ministers make the following Regulations in exercise of the powers conferred by sections 6(4)1, 16(1)2, 17(2)3, 26(2)(a) and (3)4 and 48(1)5 of the Food Safety Act 19906, and paragraph 1A of Schedule 2 to the European Communities Act 19727.
In accordance with section 48(4A)8 of the Food Safety Act 1990, the Welsh Ministers have had regard to relevant advice given by the Food Standards Agency.

These Regulations make provision for a purpose mentioned in section 2(2) of the European Communities Act 1972 and it appears to the Welsh Ministers that it is expedient for references in these Regulations to the following Regulations to be construed as references to those Regulations as amended from time to time—

(a)
Council Regulation (EC) No 104/2000 on the common organisation of the markets in fishery and aquaculture products9;
(b)
Commission Regulation (EC) No 2065/2001 laying down detailed rules for the application of Council Regulation (EC) No 104/2000 as regards informing consumers about fishery and aquaculture products10;
(c)
Council Regulation (EC) No 1224/2009 establishing a Community control system for ensuring compliance with the rules of the common fisheries policy11; and
(d)
Commission Implementing Regulation (EU) No 404/2011 laying down detailed rules for the implementation of Council Regulation (EC) No 1224/2009 establishing a Community control system for ensuring compliance with the rules of the Common Fisheries Policy12.
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 safety13, there has been open and transparent public consultation during the preparation and evaluation of these Regulations.

PART 1Introduction

Title, commencement, application and extent1.

(1)

The title of these Regulations is the Fish Labelling (Wales) Regulations 2013.

(2)

These Regulations come into force on 26 September 2013 and they apply to Wales.

Annotations:
Commencement Information

I1Reg. 1 in force at 26.9.2013, see reg. 1(2)

Interpretation2.

F1(1)

In these Regulations—

F2...

“Regulation 1224/2009” (“Rheoliad >1224/2009”) means Council Regulation (EC) No 1224/2009 establishing a Community control system for ensuring compliance with the rules of the common fisheries policy;

“Regulation 404/2011” (“Rheoliad >404/2011”) means Commission Implementing Regulation (EU) No 404/2011 laying down detailed rules for the implementation of Council Regulation (EC) No 1224/2009 establishing a Community control system for ensuring compliance with the rules of the common fisheries policy;

“Regulation 1379/2013” (“Rheoliad >1379/2013”) means Regulation (EU) No 1379/2013 of the European Parliament and of the Council on the common organisation of the markets in fishery and aquaculture products.

F3“the specified Regulations” (“y Rheoliadau Penodedig”) means Regulation 1224/2009, Regulation 404/2011 and Regulation 1379/2013.

(2)

In these Regulations—

(a)

references to any of the F4specified Regulations are references to the F4specified Regulations in question as amended from time to time; and

(b)

terms used that are also used in any of the F4specified Regulations have the same meaning as in the F4specified Regulations in question.

PART 2Consumer information and traceability requirements in Wales

Interpretation of Part 33.

In this Part, “the Act” (“y Ddeddf”) means the Food Safety Act 1990.

Annotations:
Commencement Information

I3Reg. 3 in force at 26.9.2013, see reg. 1(2)

Consumer information and traceability requirements4.

(1)

In this Part—

(a)

“consumer information requirement” (“gofyniad gwybodaeth i ddefnyddwyr”) means a requirement referred to in paragraph (2), subject to paragraphs F5(6) and (7); and

(b)

“traceability requirement” (“gofyniad gallu i olrhain”) means a requirement referred to in paragraph (3), subject to paragraph (7).

(2)

For the purposes of paragraph (1)(a), the requirements are—

F6(a)

a requirement specified in Article 35 of Regulation 1379/2013 (provision of consumer information) as read with Article 38 of that Regulation, and a requirement as specified in Article 39(3) or (4) of Regulation 1379/2013 as read with paragraph (1) of that Article;

(b)

a requirement specified in Article 58(6) of Regulation 1224/2009 as read with Articles 67(13) and 68 of Regulation 404/2011.

(3)

For the purposes of paragraph (1)(b), the requirements are Article 58(2), (3) and (5) of Regulation 1224/2009 as read with Article 58(7) of that Regulation F7, Article 67(1) to (3) F8, (5) to (7) and (9) to (13) of Regulation 404/2011 and Articles 35(1)(c) and 38 of Regulation 1379/2013.

F9(4)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F9(5)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F10(6)

The requirement referred to in paragraph (2)(a) does not apply in circumstances described in Article 35(4) of Regulation 1379/2013 as read with Article 58(8) of Regulation 1224/2009.

(7)

The requirements referred to in paragraphs (2)(b) and (3) do not apply in circumstances described in Article 58(8) of Regulation 1224/2009, as read with Article 67(14) of Regulation 404/2011, where the sale does not exceed F11£45 per day.

Improvement notice5.

(1)

Section 10 of the Act (improvement notices) applies for the purposes of these Regulations with the following modifications.

(2)

For subsection (1), substitute—

“(1)

If an authorised officer of an enforcement authority has reasonable grounds for believing that an operator has not complied with, or is not likely to comply with, a consumer information requirement or a traceability requirement, the officer may, by notice served on that operator (in this Act referred to as an “improvement notice”)—

(a)

state the officer’s grounds for believing that the operator is failing to comply with those requirements;

(b)

specify the matters which constitute the operator’s failure so to comply;

(c)

specify the measures which, in the officer’s opinion, the operator must take in order to secure compliance; and

(d)

require the operator to take those measures, or measures which are at least equivalent to them, within such period as may be specified in the notice.”

(3)

For subsection (3), substitute—

“(3)

In this section—

(a)

“consumer information requirement” and “traceability requirement” have the meanings given by regulation 4(1) of the Fish Labelling (Wales) Regulations 2013;

(b)

“operator” has the same meaning as in the F12specified Regulations as defined in regulation 2(1) of the Fish Labelling (Wales) Regulations 2013 as read with regulation 2(2)(a) of those Regulations. ”

Appeal to the magistrates’ court6.

(1)

Section 37 of the Act14 (appeals to magistrates’ court or sheriff) applies for the purposes of these Regulations with the following modifications.

(2)

For subsection (1), substitute—

“(1)

Any person who is aggrieved by a decision of an authorised officer of an enforcement authority to serve an improvement notice under section 10, as applied by regulation 5 of the Fish Labelling (Wales) Regulations 2013, may appeal to the magistrates’ court.”

(3)

Omit subsections (2) to (5).

(4)

In subsection (6), for “(3) or (4)”, substitute “(1)”.

Appeals against improvement notices7.

(1)

Section 39 of the Act (appeals against improvement notices) applies for the purposes of these Regulations with the following modifications.

(2)

For subsection (1), substitute—

“(1)

On an appeal against an improvement notice served under section 10, as applied by regulation 5 of the Fish Labelling (Wales) Regulations 2013, the court may either cancel or affirm the notice and, if it affirms it, may do so either in its original form or with such modifications as the court may in the circumstances think fit.”

(3)

In subsection (3), omit “for want of prosecution”.

Requirement to keep records8.

(1)

For the purposes of Article 58(4) of Regulation 1224/2009, an operator must keep a record of the information referred to in that Article as read with Article 67(4) of Regulation 404/2011.

(2)

The record must be kept for three years from the date the transaction is completed.

(3)

It is an offence to fail to comply with this regulation.

Annotations:
Commencement Information

I8Reg. 8 in force at 26.9.2013, see reg. 1(2)

Requirement to produce records9.

An operator who fails to comply with the second sentence of Article 58(4) of Regulation 1224/2009 is guilty of an offence.

Annotations:
Commencement Information

I9Reg. 9 in force at 26.9.2013, see reg. 1(2)

Penalties10.

A person guilty of an offence under regulation 8 or 9 is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

Annotations:
Commencement Information

I10Reg. 10 in force at 26.9.2013, see reg. 1(2)

Application and modification of the Act11.

The Schedule (application and modification of the Act) has effect.

Annotations:
Commencement Information

I11Reg. 11 in force at 26.9.2013, see reg. 1(2)

Enforcement12.

(1)

Each food authority must enforce and execute these Regulations in its area.

(2)

Each food authority is the competent authority in its area for the purposes of Article 58(4) of Regulation 1224/2009 and Article 67(5) of Regulation 404/2011.

Annotations:
Commencement Information

I12Reg. 12 in force at 26.9.2013, see reg. 1(2)

Revocation13.

The Fish Labelling (Wales) Regulations 201015 are revoked.
Annotations:
Commencement Information

I13Reg. 13 in force at 26.9.2013, see reg. 1(2)

Mark Drakeford
Minister for Health and Social Services, one of the Welsh Ministers

SCHEDULEApplication and modification of the Act

Regulation 11

PART 1General

1.

The following provisions of the Act apply for the purposes of these Regulations with the following modifications—

Section of the Act

Modification

Section 3 (presumptions that food intended for human consumption)

Section 30(8)16 (which relates to evidence of certificates given by a food analyst or examiner)

Section 33 (obstruction etc of officers)

Section 44 (protection of officers acting in good faith)

In these sections, for “this Act”, in each place occurring, substitute “the Fish Labelling (Wales) Regulations 2013”

Section 20 (offences due to fault of another person)

For “any of the preceding provisions of this Part”, substitute “section 10(2), as applied by regulation 5 of the Fish Labelling (Wales) Regulations 2013, or regulation 8 or 9 of those Regulations”

Section 2117 (defence of due diligence)

In subsection (1), for “any of the preceding provisions of this Part” substitute “section 10(2), as applied by regulation 5 of the Fish Labelling (Wales) Regulations 2013, or regulation 8 or 9 of those Regulations”

Omit subsections (2) to (4)

Section 29 (procurement of samples)

In paragraph (b)(ii), after “under section 32 below”, insert “as applied by regulation 13 of, and the Schedule to, the Fish Labelling (Wales) Regulations 2013”

Section 3518 (punishment of offences)

In subsection (1), after “section 33(1) above”, insert “as applied by regulation 11 of, and the Schedule to, the Fish Labelling (Wales) Regulations 2013”

After subsection (1), insert—

“(1A)

A person guilty of an offence under section 10(2), as applied by regulation 5 of the Fish Labelling (Wales) Regulations 2013, is liable on summary conviction to a fine not exceeding level 5 on the standard scale.”

In subsection (2)—

  1. (a)

    for the words “any other offence under this Act”, substitute “an offence under section 33(2) as applied by regulation 11 of, and the Schedule to, the Fish Labelling (Wales) Regulations 2013”;

  2. (b)

    in paragraph (b), for “the relevant amount” substitute “the statutory maximum”

Omit subsections (3) and (4)

Section 36 (offences by bodies corporate)

For “this Act”, substitute “section 10(2) as applied by regulation 7 of the Fish Labelling (Wales) Regulations 2013 or regulation 8 or 9 of those Regulations”

PART 2Powers of entry

2.

For the purpose of enabling an authorised officer of an enforcement authority to ascertain whether there is, or has been, any contravention of a consumer information requirement or a traceability requirement, section 32 of the Act19 (powers of entry) is modified in its application to these Regulations as follows—

(a)

in subsection (1)(a), after “made under it” insert “, or of a consumer information requirement or a traceability requirement”;

(b)

after subsection (9), insert—

“(10)

In this section, “consumer information requirement” and “traceability requirement” have the meanings given by regulation 4(1) of the Fish Labelling (Wales) Regulations 2013.”

EXPLANATORY NOTE
(This note is not part of the Regulations)

These Regulations enforce in Wales the consumer information requirements of Chapter 2 of Title I of Council Regulation (EC) No 104/2000 on the common organisation of the markets in fishery and aquaculture products (OJ No L 17, 21.1.2000, p 22) and Commission Regulation (EC) No 2065/2001 laying down detailed rules for the application of Council Regulation (EC) No 104/2000 as regards informing consumers about fishery and aquaculture products (OJ No L 278, 23.10.2001, p 6). They also enforce in Wales the traceability requirements of Council Regulation (EC) No 1224/2009 establishing a Community control system for ensuring compliance with the rules of the common fisheries policy (OJ No L 343, 22.12.2009, p 1) and Article 67 of Commission Implementing Regulation (EU) No 404/2011 laying down detailed rules for the implementation of Council Regulation (EC) No 1224/2009 establishing a Community control system for ensuring compliance with the rules of the Common Fisheries Policy (OJ No L 112, 30.4.2011, p 1).

Regulation 4 sets out the consumer information requirements and the traceability requirements.

Regulation 5 applies section 10 of the Food Safety Act 1990 (c.16) with modifications so that an authorised officer of an enforcement authority can serve an improvement notice on an operator who fails to comply with the consumer information requirements or traceability requirements. Regulation 6 applies section 37 of that Act with modifications so that an operator can appeal against service of an improvement notice to the magistrates’ court. Regulation 7 applies section 39 of the Act to enable the court to either cancel or affirm an improvement notice.

Regulation 8 requires operators to keep records of information specified in Article 58(4) of Council Regulation (EC) No 1224/2009 (as read with Article 67(4) of Commission Implementing Regulation (EU) No 404/2011) and creates an offence for failure to comply with that requirement. Regulation 9 creates an offence for failure to produce those records on demand in breach of that Article.

Regulation 11 and the Schedule apply certain other provisions of the Food Safety Act 1990 to these Regulations with consequential modifications.

Regulation 12 provides that each food authority in Wales must execute and enforce these Regulations in its area.

The Welsh Ministers’ Code of Practice on the carrying out of Regulatory Impact Assessments was considered in relation to these Regulations. As a result, a regulatory assessment has been prepared as to the likely costs and benefits of complying with these Regulations. A copy can be obtained from the Food Standards Agency at Food Standards Agency Wales, 11th Floor, Southgate House, Wood Street, Cardiff, CF10 1EW.