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"the Commission Regulation" ("Rheoliad y Comisiwm") means Commission Regulation (EC) No. 466/2001 setting maximum levels for certain contaminants in foodstuffs[4] as corrected by a corrigendum published on 30th November 2001[5], and as amended by Council Regulation (EC) No 2375/2001[6], Commission Regulation (EC) No. 221/2002[7], Commission Regulation (EC) No. 257/2002[8], Commission Regulation (EC) No. 472/2002[9] as corrected by a corrigendum published on 23rd March 2002[10] and Commission Regulation (EC) No. 563/2002[11] as corrected by a corrigendum published on 14th June 2002[12];

"Directive 85/591/EEC" ("Cyfarwyddeb 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[13];

"Directive 93/99/EEC" ("Cyfarwyddeb 93/99/EC") means Council Directive 93/99/EEC on the subject of additional measures concerning the official control of foodstuffs[14];

"Directive 98/53/EC" ("Cyfarwyddeb 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[15] as amended by Commission Directive 2002/27/EC[16];

"Directive 2001/22/EC" ("Cyfarwyddeb 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[17] as corrected by Commission Decision 2001/873/EC[18];

"Directive 2002/26/EC" ("Cyfarwyddeb 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[19];

"Directive 2002/69/EC" ("Cyfarwyddeb 2002/69/EC") means Commission Directive 2002/69/EC laying down the sampling methods and the methods of analysis for the official control of dioxins and the determination of dioxin-like PCBs in foodstuffs[20] as corrected by a corrigendum published on 20th September 2002[21];

"the EEA Agreement" ("Cytundeb yr EEA") means the Agreement on the European Economic Area[22] signed at Oporto on 2nd May 1992 as adjusted by the Protocol[23] signed at Brussels on 17th March 1993;

"EEA State" ("Gwladwriaeth EEA") means a State which is a Contracting Party to the EEA Agreement;

"food authority" ("awdurdod bwyd") does not include a port health authority; and

"port health authority" ("awdurdod iechyd porthladd") means in relation to any port health district constituted by order under section 2(3) of the Public Health (Control of Disease) Act 1984[24], a port health authority for that district constituted by order under section 2(4) of that Act.

    (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.  - (1) Subject to regulations 9 and 10, 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 such person  - 

(a) before 1st January 2005  - 


(i) 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) contravenes Article 2.3, 4.2 or 4a of the Commission Regulation;



(b) on or after 1st January 2005  - 



(i) 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 read with Articles 1.2 and 4.3 of that Regulation, or

(ii) contravenes Article 2.3, 4.2 or 4a of the Commission Regulation; or



(c) 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).

    (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.

Enforcement
     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.

Modification of section 29 of the Food Safety Act 1990 (procurement of samples) and analysis of samples
     5.  - (1) In its application to the taking of a sample of any food specified in sections 1 to 5 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  - 

(a) subject to the requirement specified in paragraph (2) in the Annex to Commission Directive 2002/63/EC establishing Community methods of sampling for the official control of pesticide residues in and on products of plant and animal origin and repealing Directive 79/700/EC[25] , 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 Article 1.3 of that Regulation;

(c) in Annex I to Directive 2002/26/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 Article 1.3 of that Regulation;

(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 1 to the Commission Regulation to the sampling of which that Directive applies pursuant to Article 1.3 of that Regulation; and

(e) in Annex I to Directive 2002/69/EC, where the food concerned is of a description specified in Section 5 of Annex 1 to the Commission Regulation to the sampling of which that Directive applies pursuant to Article 1.3 of that Regulation.

    (2) The requirement 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, and the authorised 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  - 

(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, and the authorised 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  - 

(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, and the authorised 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  - 

(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 to that paragraph;

(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 to that sub-paragraph; 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 to that paragraph, and

(ii) is in accordance with the third sub-paragraph of paragraph 3.4 and with paragraph 3.6 of that Annex.

    (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 of a description to which sub-paragraph (e) of that paragraph applies, and the authorised 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  - 

(a) the sample is prepared in accordance with paragraph 3 of Annex II to Directive 2002/69/EC, as read with paragraphs 1 and 2 of that Annex;

(b) any analysis of the sample is carried out  - 


(i) in accordance with methods of analysis which meet the criteria specified in paragraphs 5, 6 and 7 of Annex II to Directive 2002/69/EC, as read with paragraphs 1 and 2 of that Annex, and

(ii) by a laboratory which complies with the requirements of paragraph 4 of Annex II to Directive 2002/69/EC; and



(c) the reporting of the results of the analysis of that sample is in accordance with paragraph 8 of Annex II to Directive 2002/69/EC.

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  - 

(a) the food in respect of which the offence is alleged to have been committed was intended for export to a country (other than an EEA State) which has legislation analogous to these Regulations, and that the food complies with that legislation; or

(b) that food was intended for export to an EEA State which has legislation which complies with the provisions of the Commission 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  - 

(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 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  - 

(a) In subsection (1)  - 


(i) after the words "food authority" there shall be inserted the words "or a port health authority",

(ii) for the words "has been sold or is offered or exposed for sale" there shall be inserted the words "has been placed on the market",

(iii) for the words "sale or of preparation for sale" there shall be inserted the words "placing it on the market",

(iv) the reference to subsections (3) to (9) shall be deemed to be a reference to subsections (3) to (8) as applied by this regulation, and

(v) for the words "any food fails to comply with food safety requirements" there shall be substituted "the placing on the market of any food contravenes regulation 3(1)(a)(i) or (b)(i) of the Contaminants in Food (Wales) Regulations 2003";



(b) Subsection (2) shall not apply for the purposes of this regulation;

(c) In subsection (3)  - 



(i) for the words in paragraph (a) "not to be removed except to some place specified in the notice" there shall be substituted the words " 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, Directive 2002/26/EC or Directive 2002/69/EC, as appropriate", and

(ii) after the words "guilty of an offence" there shall be inserted the words "and liable on summary conviction to a fine not exceeding level 5 on the standard scale";



(d) in subsections (4) and (6) for the words "food safety requirements" there shall be substituted the words "the requirements of regulation 3(1)(a)(i) or (b)(i) of the above Regulations";

(e) in each of subsections (4) and (7), the reference to subsection (3) shall be deemed to be a reference to that subsection as applied by this regulation;

(f) in subsection (5)  - 



(i) the reference to subsections (3) and (4) shall be deemed to be a reference to those subsections as applied by this regulation;

(ii) the reference to section 7 or 8 shall be deemed to be a reference to regulation 3(1)(a)(i) or (b)(i) of these Regulations; and

(iii) in paragraph (b) for the words "is charged with an offence under that section in relation to that food" there shall be substituted the words "is proceeded against for an offence consisting of a contravention of regulation 3(1)(a)(i) or (b)(i) of the above regulations in relation to that food";



(g) in subsection (7), after the words "food authority" there shall be inserted the words "or, as the case may be, port health authority";

(h) in subsection (8) the reference to subsection (7) shall be deemed to be a reference to that section as applied by this regulation.

    (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", "Directive 2002/26/EC" and "Directive 2002/69/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.

Re-dispatch or destruction of food imported into Wales that does not comply with these Regulations
     8.  - (1) If it appears to an authorised officer of a port health authority or as the case may be food authority that any food contravenes regulation 3(1)(a)(i) or (b)(i) and has been imported into Wales, such officer may, after appropriate consultation with a person appearing to such officer to be the importer, serve on that person a notice requiring  - 

(a) the re-dispatch of the food to a country outside the European Economic Area within such reasonable period as shall be specified in the notice; or

(b) (where such re-dispatch would in that officer's opinion involve serious risks to human health) the destruction of the food within such reasonable period as shall be so specified.

    (2) In any case where such an appeal as is mentioned in paragraph (3) may be brought the notice served under paragraph (1) shall state  - 

(a) the right of appeal to a magistrates' court; and

(b) the period within which such an appeal may be brought.

    (3) Any person who is aggrieved by the decision of an authorised officer to serve a notice under paragraph (1) may appeal to a magistrates' court, which shall determine whether or not the notice was lawfully served.

    (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 and the making of the complaint shall be deemed for the purpose of this paragraph to be the bringing of the appeal.

    (5) The procedure on an appeal to a magistrates' court under paragraph (3) shall be by way of complaint for an order, and the Magistrates' Courts Act 1980[26] shall apply to the proceedings.

    (6) If the court allows an appeal brought under paragraph (3) the authority concerned 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 arbitration.

    (8) 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.

Transitional provisions
     9. Regulation 3(1)(a)(i) and (b)(i) shall not apply in relation to any food lawfully placed on the market in the European Economic Area 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.

     10. Regulation 3(1)(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 food lawfully placed on the market in the European Economic Area 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.

Consequential amendments
     11. In Schedule 1 to the Food Safety (Sampling and Qualifications) Regulations 1990[27] so far as they extend to Wales (provisions to which those Regulations do not apply) for the entry relating to the Contaminants in Food (Wales) Regulations 2002 there shall be substituted the following entry  - 

" The Contaminants in Food (Wales) Regulations 2003 (to the extent that a sample falls to be prepared and analysed in accordance with regulation 5 thereof) S.I. 2003/1721 (W.188)".

Revocation of the Contaminants in Food (Wales) Regulations 2002
     12. The Contaminants in Food (Wales) Regulations 2002[28] shall be revoked.



Signed on behalf of the National Assembly for Wales under section 66(1) of the Government of Wales Act 1998[29]


D. Elis-Thomas
The Presiding Officer of the National Assembly

9th July 2003

     2. These Regulations  - 

(a) 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 requirements in relation to the analysis of samples of foods subject to the Commission Regulation, and in so doing modify section 29 of the Food Safety Act 1990 in its application 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 on the official control of foodstuffs, as read with the ninth recital to that Directive (OJ No. L186, 30.6.89, p.23) (regulation 6);

(e) provide for the application of specified provisions of the Food Safety Act 1990 for the purposes thereof (regulation 7);

(f) provide for the re-dispatch out of the European Economic Area of imported food that fails to comply with certain requirements of regulation 3 but does not pose a serious risk to human health and the destruction of such food where it does pose such a risk (regulation 8);

(g) include transitional provisions (regulations 9 and 10);

(h) make consequential amendments to the Food Safety (Sampling and Qualifications) Regulations 1990 (regulation 11); and

(i) revoke the Contaminants in Food (Wales) Regulations 2002 (regulation 12).

     3. A regulatory appraisal for these Regulations has been prepared pursuant to section 65 of the Government of Wales Act 1998 and placed in the library of the National Assembly for Wales. Copies may be obtained from the Food Standards Agency, 1st Floor, Southgate House, Cardiff, CF10 1EW.

[2] Functions of "the Ministers" under the Food Safety Act 1990, so far as exercisable in relation to Wales, were transferred to the National Assembly for Wales by the National Assembly for Wales (Transfer of Functions) Order 1999 (S.I. 1999/672).back

[3] OJ No. L31, 1.2.2002, p.1.back

[4] OJ No. L77, 16.3.2001, p.1 as adopted by EEA Joint Committee Decision No. 81/2002 (OJ No. L266, 3.10.2002, p.30 and EEA supplement No. 49, 3.10.2002).back

[5] OJ No. L313, 30.11.2001, p.60, as adopted by EEA Joint Committee Decision No. 81/2002back

[6] OJ No L321, 6.12.2001, p. 1, as adopted by EEA Joint Committee Decision No. 81/2002back

[7] OJ No L37, 7.2.2002, p. 4, as adopted by EEA Joint Committee Decision No. 139/2002 (OJ No. L19, 23.1.2003, p.3 and EEA supplement No. 5, 23.1.2003) .back

[8] OJ No. L41, 13.2.2002, p.12, as adopted by EEA Joint Committee Decision No. 100/2002 (OJ No. L298, 31.10.2002, p.13 and EEA supplement No.54, 31.10.2002, p.11) .back

[9] OJ No. L75, 16.3.2002, p.18, as adopted by EEA Joint Committee Decision No. 161/2002 (OJ No. L.38, 13.2.2003, p.16 and EEA supplement No. 9, 13.2.2003, p.13).back

[10] OJ No. L80, 23.3.2002, p.42.back

[11] OJ No. L86, 3.4.2002, p.5, as adopted by EEA Joint Committee Decision No. 161/2002.back

[12] OJ No. L155, 14.6.2002, p.63, as adopted by EEA Joint Committee Decision No. 161/2002.back

[13] OJ No. L372, 31.12.85, p.50.back

[14] OJ No. L290, 24.11.93, p.14.back

[15] OJ No. L201, 17.7.1998, p.93.back

[16] OJ No. L75, 16.3.2002, p.44.back

[17] OJ No. L77, 16.3.2001, p.14.back

[18] OJ No. L325, 8.12.2001, p.34.back

[19] OJ No. L75, 16.3.2002, p.38.back

[20] OJ No L209, 6.8.2002, p. 5.back

[21] OJ No. L252, 20.9.2002, p.40.back

[22] OJ No. L1, 3.1.94, p.3.back

[23] OJ No. L1, 3.1.94, p.37.back

[24] 1984 c.22.back

[25] OJ No. L187, 16.7.2002, p.30.back

[26] 1980 c. 43.back

[27] S.I. 1990/2463. The relevant amending instruments are S.I. 1999/1603 and S.I. 2002/1886 (W.195).back

[28] SI. 2002/1886 (W.195).back

[29] 1998 c.38.back

 

© Crown copyright 2003

Prepared 16 July 2003