The Contaminants in Food (England) Regulations 2004
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The Secretary of State, in exercise of the powers conferred on him by sections 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 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: Title, commencement and application 1. These Regulations may be cited as the Contaminants in Food (England) Regulations 2004, shall come into force on 20th December 2004 and shall apply in relation to England only. Interpretation 2. - (1) In these Regulations -
(b) in relation to any port health district constituted by order under section 2(3) of the Public Health (Control of Disease) Act 1984, a port health authority for that district constituted by order under section 2(4) of that Act; and
(2) Other expressions used in these
Regulations and in the Commission Regulation have the same meaning as
in the Commission Regulation.
(ii) he contravenes Article 2.3, 4.2 or 4a of the Commission Regulation; (b) on or after 1st January 2005 -
(ii) he contravenes Article 2.3, 4.2 or 4a of the Commission Regulation; or (c) 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). Enforcement
(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 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 Article 1.3 of that Regulation; (d) 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; (e) in Annex I to Directive 2002/69/EC, where the food concerned is of a description specified in Section 5 of Annex I to the Commission Regulation to the sampling of which that Directive applies pursuant to Article 1.3 of that Regulation; (f) in Annex I to Directive 2003/78/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; and (g) in Annex I to Directive 2004/16/EC, where the food concerned is of a description specified in Section 6 of Annex I to the Commission Regulation to the sampling of which that Directive applies pursuant to Article 1.3 of that Regulation. (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 of the description referred to in sub-paragraph
(b) of that paragraph, and he 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 -
(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 -
(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 of the sample is carried out by a laboratory
which complies with Directive 93/99/EEC; and
(ii) is in accordance with paragraph 4.4 of that Annex. (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 of the description referred to in sub-paragraph
(c) of that paragraph, and he 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 -
(b) any analysis of the sample is carried out in accordance with methods of analysis which -
(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;
(ii) is in accordance with the third sub-paragraph of paragraph 3.4 and with paragraph 3.6 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 the description referred to in sub-paragraph
(d) of that paragraph, and he 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 -
(b) any analysis of the sample is carried out in accordance with methods of analysis which -
(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 of the sample is carried out by a laboratory
which complies with Directive 93/99/EEC; 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 the description referred to in sub-paragraph
(e) of that paragraph, and he 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 -
(b) any analysis of the sample is carried out -
(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. (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 the description referred to in sub-paragraph
(f) of that paragraph, and he 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 -
(b) any analysis of the sample is carried out in accordance with methods of analysis which -
(ii) meet the criteria specified in paragraph 4.3 of Annex II to Directive 2003/78/EC as read with the notes to that paragraph; (c) any analysis of the sample is carried out by a laboratory
which complies with Directive 93/99/EEC; and
(ii) is in accordance with paragraph 4.4 of that Annex. (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 of the description referred to in sub-paragraph
(g) of that paragraph, and he 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 -
(b) any analysis of the sample is carried out in accordance with methods of analysis which -
(ii) meet the criteria specified in paragraphs 4.3 and 4.3.1 of Annex II to Directive 2004/16/EC; (c) any analysis of the sample is carried out by a laboratory
which complies with Directive 93/99/EEC and that section of
paragraph 4.6 of Annex II to Directive 2004/16/EC headed "Internal
Quality control"; and
(ii) is in accordance with paragraph 4.4 of that Annex. Defence in relation to exports
(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
-
(b) is in the possession of, or has been deposited with or consigned to, any person for the purpose of placing it on the market, 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 contravenes regulation 3(a)(i) or (b)(i) of
the Contaminants in Food (England) Regulations
2004.
(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, Directive 2002/26/EC, Directive 2002/69/EC, Directive 2003/78/EC and Directive 2004/16/EC, as appropriate; or (b) seize the food and remove it in order to have it dealt with
by a justice of the peace. (3) Where the authorised officer
exercises the power 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(a)(i) or (b)(i) of
the above Regulations, as appropriate and -
(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 -
(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(a)(i) or (b)(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(a)(i) or (b)(i) of the above Regulations he shall
condemn the food and order -
(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. (3) The expressions "authorised officer",
"food authority", "port health authority", "human consumption",
"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 meanings that those
expressions respectively bear in these
Regulations.
(ii) (where such re-export would in his opinion involve serious risks to human health) the destruction of the food within such reasonable period as shall be so specified; and (b) on or after 1st January 2005 -
(ii) (where the requirements of Article 12 of Regulation 178/2002 are not satisfied) the destruction of the food within such reasonable period as shall be so specified. (2) The notice served under paragraph (1)
shall state -
(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 be determine
whether or not the notice should be upheld or set
aside.
(b) in respect of which an authorised officer may serve a notice in accordance with regulation 8(1), the authorised officer may, after appropriate consultation with a
person appearing to him to be the importer of the food, serve on that
person a notice requiring him to -
(d) place the food on the market as soon as is reasonably practicable. (2) The notice served under paragraph (1)
shall state -
(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 should be upheld or set
aside.
(b) lawfully placed on the market in an EEA State before 1st November 2003 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 patulin at a level higher than that specified in relation to that food in the second column of Section 2.3 of Annex I to that Regulation. 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
(b) food lawfully placed on the market in an EEA State before 1st November 2003 and containing patulin at a level higher than that specified in relation to that food in the second column of Section 2.3 of Annex I to that Regulation. Consequential amendments
(This note is not part of the Regulations) 1. These Regulations, which apply in relation to England only and revoke and re-enact with changes the Contaminants in Food (England) Regulations 2003 (S.I. 2003/1478) -
(b) implement -
(ii) 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.14, as corrected), (iii) Commission Directive 2002/26/EC laying down the sampling methods and the methods of analysis of the official control of levels of ochratoxin A in foodstuffs (OJ No. L75, 16.3.2002, p.38), (iv) 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 (OJ No. L209, 6.8.2002, p.5, as corrected and amended), (v) Commission Directive 2002/78/EC laying down the sampling methods and the methods of analysis for the official control of the levels of patulin in foodstuffs (OJ No. L203, 12.8.2003, p.40), and (vi) Commission Directive 2004/16/EC laying down the sampling methods and the methods of analysis for the official control of the levels of tin in canned foods (OJ No. L42, 13.2.2004, p.16). 2. These
Regulations -
(ii) use food containing such contaminants at such levels as ingredients in the production of certain foods, (iii) mix foods which do not 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 treatment food not complying with the limits specified in the Commission Regulation (regulation 3); (b) specify the enforcement authorities (regulation
4); 3. These Regulations also
revoke the Tin in Food Regulations 1992 in so far as they apply in
relation to England (regulation
13). Notes: [1] 1990 c. 16.back [2] 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(1) was amended by paragraph 12(a), section 17(2) by paragraph 12(b) and section 48 by paragraph 21, of Schedule 5 to the 1999 Act.back [3] OJ No. L31, 1.2.2002, p.1. That Regulation was last amended by Regulation (EC) No. 1642/2003 of the European Parliament and of the Council (OJ No. L245, 29.9.2003, p.4).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 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. 81/2002.back [6] OJ No. L321, 6.12.2001, p.1, as adopted by EEA Joint Committee Decision No. 81/2002.back [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. L38, 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. L203, 12.8.2003, p.1.back [14] OJ No. L326, 13.12.2003, p.12.back [15] OJ No. L42, 13.2.2004, p.3back [16] OJ No. L74, 12.3.2004, p.11.back [17] OJ No. L106, 15.4.2004, p. 6.back [18] OJ No. L372, 31.12.1985, p.50.back [19] OJ No. L290,24.11.1993, p.14.back [20] OJ No. L201, 17.7.1998, p.93, as adopted by EEA Joint Committee Decision No. 93/1999 (OJ No. L296, 23.11.2000, p.58).back [21] OJ No. L75, 16.3.2002, p.44, as adopted by EEA Joint Committee Decision No. 161/2002.back [22] OJ No. L332, 19.12.2003, p.38.back [23] OJ No. L113, 20.4.2004, p.14.back [24] OJ No. L77, 16.3.2001, p.14.back [25] OJ No. L325, 8.12.2001, p.34.back [26] OJ No. L75, 16.3.2002, p.38.back [27] OJ No. L113, 20.4.2004, p.14.back [28] OJ No. L209, 6.8.2002, p.5.back [29] OJ No. L252, 20.9.2002, p.40.back [30] OJ No. L113, 20.4.2004, p.17.back [31] OJ No. L203, 12.8.2003, p.40.back [32] OJ No. L42, 13.2.2004, p.16.back [34] The requirement is that the minimum number of units required for a laboratory sample in such circumstances is 10.back [35] OJ No. L187, 16.7.2002, p.30.back [37] S.I. 1990/2463; relevant amending instruments are S.I. 1999/1603, S.I. 2002/890 and S.I. 2003/1478.back
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