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Statutory Instruments of the Scottish Parliament


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SCOTTISH STATUTORY INSTRUMENTS


2004 No. 525

FOOD

The Contaminants in Food (Scotland) Regulations 2004

  Made 2nd December 2004 
  Laid before the Scottish Parliament 2nd December 2004 
  Coming into force 25th December 2004 

The Scottish Ministers, in exercise of the powers conferred by sections 6(4), 16(1)(a), (e) and (f), 17(1) and (2), 26(1)(a), (2)(e) and (3) and 48(1) of the Food Safety Act 1990[1], and all other powers enabling them in that behalf, having had regard, in accordance with section 48(4A)[2] of that Act, to relevant advice given by the Food Standards Agency, and after consultation in accordance with section 48(4) and (4B)[3] of that Act, hereby make the following Regulations:

Citation, commencement and extent
     1.  - (1) These Regulations may be cited as the Contaminants in Food (Scotland) Regulations 2004 and shall come into force on 25th December 2004.

    (2) These Regulations extend to Scotland only.

Interpretation
    
2.  - (1) In these Regulations-

    (2) Other expressions used in these Regulations and in the Commission Regulation have the same meaning as in the Commission Regulation.

Offences and penalties
     3. Subject to regulations 6, 10 and 11, 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-

Enforcement
    
4. Each food authority shall enforce and execute these Regulations within its area.

Sampling, analysis and modification of section 29 of the Act
    
5.  - (1) In its application to the taking of a sample of any food specified in Sections 1 to 6 of Annex I to the Commission Regulation, section 29 of the Act shall be modified so as to require the power to take samples under subsection (b) and (d) of that section to be exercised in accordance with the methods of taking samples described or referred to-

    (2) 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 to which paragraph (1)(b) applies, and that officer has submitted that sample to be analysed pursuant to section 30(1)(a) of the Act, the person who analyses the sample shall ensure that-

    (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 food to which paragraph (1)(c) applies, and that officer has submitted that sample to be analysed pursuant to section 30(1)(a) of the Act, the person who analyses the sample shall ensure that-

    (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 to which paragraph (1)(d) applies, and that officer has submitted that sample to be analysed pursuant to section 30(1)(a) of the Act, the person who analyses the sample shall ensure that-

    (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 to which paragraph (1)(e) applies, and that officer has submitted that sample to be analysed pursuant to section 30(1)(a) of the Act, the person who analyses the sample shall ensure that-

    (6) 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 to which paragraph (1)(f) applies, and that officer has submitted that sample to be analysed pursuant to section 30(1)(a) of the Act, the person who analyses the sample shall ensure that-

    (7) 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 to which paragraph (1)(g) applies, and that officer has submitted that sample to be analysed pursuant to section 30(1)(a) of the Act, the person who analyses the sample shall ensure that-

Defence in relation to exports
     6. In any proceedings for an offence consisting of a contravention of regulation 3 it shall be a defence for the accused to prove that the food in respect of which the offence is alleged to have been committed was intended for export to a country other than a member State and that the food complies with the requirements of Article 12 of the Community Regulation.

Application of various sections of the Act
    
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-

    (2) Subject to paragraph (3), 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 may at all reasonable times inspect any food intended for human consumption which-

and subsections (2) to (8) shall apply where, on such an inspection, it appears to the authorised officer that the placing on the market of any food contravenes regulation 3(a)(i) or (b)(i) of the Contaminants in Food (Scotland) Regulations 2004 ("the Regulations").

    (2) The authorised officer may either-

    (3) Where an authorised officer exercises the power conferred by subsection (2)(a), that officer shall, as soon as is reasonably practicable and in any event within 21 days, determine whether or not that officer is satisfied that the food complies with the requirements of regulation 3(a)(i) or (b)(i) of the Regulations, as appropriate and-

    (4) Where an authorised officer exercises the powers conferred by subsection (2)(b) or (3)(b), that officer shall inform the person in charge of the food of the intention to have it dealt with by the sheriff and any person who under regulation 3(a)(i) or (b)(i) of the Regulations 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 the 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 the requirements of regulation 3(a)(i) or (b)(i) of the Regulations the sheriff shall condemn the food and order-

    (6) If a notice under subsection (2)(a) 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) 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 "placing on the market", "Directive 98/53/EC", "Directive 2001/22/EC", "Directive 2002/26/EC", "Directive 2002/69/EC", "Directive 2003/78/EC" and "Directive 2004/16/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 meaning that those expressions respectively bear in these Regulations.

Re-export or destruction of food presented for import
    
8.  - (1) Subject to regulation 9, if it appears to an authorised officer of a food authority that any food presented for import would, if placed on the market, contravene regulation 3(a)(i) or (b)(i) that officer may after appropriate consultation with a person appearing to be the importer of the food serve on that person a notice requiring-

    (2) Any notice served under paragraph (1) shall state-

    (3) The person appearing to be the importer of the food in respect of which a notice has been served under paragraph (1) shall ensure that it is stored until re-export or destruction under the supervision of the authorised officer at such places and under such conditions as the authorised officer may in the notice direct.

    (4) Any person who is aggrieved by the decision of an authorised officer to serve a notice under paragraph (1) may appeal to the sheriff who may confirm or cancel the notice.

    (5) The period within which such an appeal as is mentioned in paragraph (4) may be brought shall be 6 days from the date on which the notice was served exclusive of Saturdays, Sundays and public holidays.

    (6) Pending determination of an appeal under paragraph (4), paragraph (3) shall apply to the storage of the food concerned.

    (7) If the sheriff allows an appeal brought under paragraph (4) the food authority shall compensate the owner of the food concerned for any depreciation in its value resulting from the action taken by the authorised officer.

    (8) Any disputed question as to the right to or the amount of any compensation payable under paragraph (7) shall be determined by a single arbiter appointed, failing agreement between the parties, by the sheriff.

    (9) Any person who breaches the terms of a notice served under paragraph (1) shall be 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.

    (10) The cost of re export, storage or destruction of the food under this regulation shall be borne by the importer.

Secondary treatment of food presented for import to which Article 4.3 applies
    
9.  - (1) In relation to any food that is of the type referred to in Article 4.3(b) of the Commission Regulation that is presented for import and which appears to an authorised officer of a food authority to contravene regulation 3(a)(i) or (b)(i) that authorised officer may, after appropriate consultation with a person appearing to be the importer of the food, serve on that person a notice requiring that person to-

    (2) The notice served under paragraph (1) shall state-

    (3) Any person who is aggrieved by the decision of an authorised officer to serve a notice under paragraph (1) may appeal to the sheriff, who may confirm or cancel the notice.

    (4) The period within which such an appeal as is mentioned in paragraph (3) may be brought shall be 6 days from the date on which the notice was served exclusive of Saturdays, Sundays and Public Holidays.

    (5) Pending determination of an appeal under paragraph (3), the person appearing to be the importer of the food concerned shall-

    (6) If the sheriff allows an appeal brought under paragraph (3) the food authority shall compensate the owner of the food concerned 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 paragraph (6) shall be determined by a single arbiter appointed, failing agreement between the parties, by the sheriff.

    (8) Any person who fails to comply with any of the requirements specified in a notice served under paragraph (1) shall be guilty of an offence and liable on summary conviction[
a] to a fine not exceeding level 5 on the standard scale or to imprisonment for a term not exceeding three months or to both.

Transitional provisions
     10. Regulation 3(a)(i) and (b)(i) shall not apply in relation to any food-

     11. Regulation 3(a)(ii) and (b)(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

Consequential amendment
    
12. In Schedule 1 to the Food Safety (Sampling and Qualifications) Regulations 1990[35] (provisions to which those Regulations do not apply) for the entry relating to the Contaminants in Food (Scotland) Regulations 2003 substitute-

Revocations
     13. The Tin in Food Regulations 1992[36] and the Contaminants in Food (Scotland) Regulations 2003[37] are revoked.


RHONA BRANKIN
Authorised to sign by the Scottish Ministers

St Andrew's House, Edinburgh
2nd December 2004



EXPLANATORY NOTE

(This note is not part of the Regulations)


These Regulations, which extend to Scotland only, revoke and re-enact with changes the Contaminants in Food (Scotland) Regulations 2003.

The Regulations-

The Regulations differ from the Contaminants in Food (Scotland) Regulations 2003 by-

Four Regulatory Impact Assessments, which include a compliance cost assessment of the effects which these Regulations would have on business costs, have been prepared in respect of these Regulations and a copy of each has been placed in the Scottish Parliament Information Centre. Copies may be obtained from the Food Standards Agency, 6th Floor, St Magnus House, 25 Guild Street, Aberdeen AB11 6NJ.


Notes:

[1] 1990 c.16; section 6(4) was amended by the Deregulation and Contracting Out Act 1994 (c.40), Schedule 9, paragraph 6 and by the Food Standards Act 1999 (c.28) ("the 1999 Act"), Schedule 5, paragraph 10(3); sections 16(1) and 48(1) were amended by the 1999 Act, Schedule 5, paragraph 8; section 17(1) was amended by the 1999 Act, Schedule 5, paragraphs 8 and 12; section 26(3) was amended by the 1999 Act, Schedule 6; amendments made by Schedule 5 of the 1999 Act shall be taken as pre-commencement enactments for the purposes of the Scotland Act 1998 (c.46) ("the 1998 Act") by virtue of section 40(2) of the 1999 Act. The functions of the Secretary of State were transferred to the Scottish Ministers by virtue of section 53 of the 1998 Act.back

[2] Section 48(4A) was inserted by paragraph 21 of Schedule 5 to the 1999 Act.back

[3] Section 48(4B) was inserted by paragraph 21 of Schedule 5 to the 1999 Act.back

[4] O.J. No. L 77, 16.3.01, p.1.back

[5] O.J. No. L 313, 30.11.01, p.60.back

[6] O.J. No. L 321, 6.12.01, p.1.back

[7] O.J. No. L 37, 7.2.02, p.4.back

[8] O.J. No. L 41, 13.2.02, p.12.back

[9] O.J. No. L 75, 16.3.02, p.18.back

[10] O.J. No. L 80, 23.3.02, p.42.back

[11] O.J. No. L 86, 3.4.02, p.5.back

[12] O.J. No. L 155, 14.6.02, p.63.back

[13] O.J. No. L 203, 12.8.03, p.1.back

[14] O.J. No. L 326, 13.12.03, p.12.back

[15] O.J. No. L 42, 13.2.04, p.3.back

[16] O.J. No. L 74, 12.3.04, p.11.back

[17] O.J. No. L 106, 15.4.04, p.6.back

[18] O.J. No. L 31, 1.2.02, p.1.back

[19] O.J. No. L 245, 29.9.03, p.4.back

[20] O.J. No. L 372, 31.12.85, p.50.back

[21] O.J. No. L 290, 24.11.93, p.14.back

[22] O.J. No. L 201, 17.7.98, p.93.back

[23] O.J. No. L 75, 16.3.02, p.44.back

[24] O.J. No. L 332, 19.12.03, p.38.back

[25] O.J. No. L 113, 20.4.04, p.14.back

[26] O.J. No. L 77, 16.3.01, p.14.back

[27] O.J. No. L 325, 8.12.01, p.34.back

[28] O.J. No. L 75, 16.3.02, p.38.back

[29] O.J. No. L 209, 6.8.02, p.5.back

[30] O.J. No. L 252, 20.9.02, p.40.back

[31] O.J. No. L 113, 20.4.04, p.17.back

[32] O.J. No. L 203, 12.8.03, p.40.back

[33] O.J. No. L 42, 13.2.04, p.16.back

[34] O.J. No. L 187, 16.7.02, p.30.back

[35] S.I. 1990/2463; relevant amending instruments are S.I. 1999/1603, S.S.I. 2002/269 and 2003/289.back

[36] S.I. 1992/496.back

[37] S.S.I. 2003/289.back


[a] Amended by Correction Slip. Page 9, regulation 9(8), line two; "on summary execution" should read "on summary conviction". back




ISBN 0 11 069358 2


 © Crown copyright 2004

Prepared 14 December 2004


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