Title, application and commencement

1. These Regulations may be cited as the Tryptophan in Food (England) Regulations 2005; they apply in relation to England only and come into force on 11th November 2005.

Interpretation

2. —(1) In these Regulations —

“the Act” means the Food Safety Act 1990;

“appropriate medical certificate” means a certificate in writing given by a registered medical practitioner that a person requires food to which tryptophan has been added to treat a condition from which a registered medical practitioner has diagnosed him to be suffering;

“Directive 4 ) on substances that may be added for specific nutritional purposes in foods for particular nutritional uses, as amended by Commission Directive 5 );

“dose form” means a form such as capsules, pastilles, tablets, pills, and other similar forms, sachets of powder, ampoules of liquids, drop dispensing bottles, and other similar forms of liquids or powders designed to be taken in measured small unit quantities;

“follow–on formula” means a food intended for particular nutritional use by infants in good health who are aged over four months, and constituting the principal liquid element in a progressively diversified diet;

“food authority” does not include —

“food supplement” means any food the purpose of which is to supplement the normal diet and which —

“hospital” includes a clinic, nursing home or similar institution;

“infant” means a child under the age of twelve months;

“infant formula” means a food intended for particular nutritional use by infants in good health during the first four to six months of life, and satisfying by itself the nutritional requirements of such infants;

“pharmacist” means a person lawfully conducting a retail pharmacy business within the meaning of section 69 of the Medicines Act 1968( 6 );

“port health authority” means —

“processed cereal–based food” and “baby food” have the same meaning as in the Processed Cereal–based Foods and Baby Foods for Infants and Young Children (England) Regulations 2003( 8 );

“tryptophan” means dextrorotatory tryptophan, laevorotatory tryptophan or racemic tryptophan, or any salt or peptide prepared from any of those forms.

(2) In these Regulations references to adding tryptophan to food —

(a) do not include cases where food which contains only tryptophan occurring naturally in it is added to any other such food or to food which contains no tryptophan;

(b) but otherwise include cases where food to which tryptophan has been added is added to any other food,

and references in regulations 4 and 5 to food containing tryptophan do not include cases where that tryptophan only occurs naturally in the food or an ingredient of the food.

Presumption

3. Where any requirements of these Regulations are contravened in respect of any food and that food is part of a batch, lot or consignment of food of the same class or description, it shall be presumed, until the contrary is proved, that all of the food in that batch, lot or consignment fails to comply with those requirements.

Prohibitions

4. Subject to regulation 5, no person shall —

(a) add tryptophan to food;

(b) sell, or offer for sale, food containing tryptophan; or

(c) expose for sale food containing tryptophan.

Exceptions from prohibitions

5. —(1)Food containing tryptophan may be sold or offered for sale —

(a) by a pharmacist; or

(b) in the course of the activities of a hospital,

to a person in respect of whom there is an appropriate medical certificate or to someone acting on that person’s behalf, and —

(i) any person may add tryptophan to food intended for sale in those circumstances; and

(ii) any person may sell, or offer for sale, food containing tryptophan for the purposes of its being sold in those circumstances.

(2) Regulation 4 shall not apply in respect of —

(a) laevorotatory tryptophan added to any infant formula or follow–on formula;

(b) laevorotatory tryptophan added to any processed cereal–based food or baby food; or

(c) laevorotatory tryptophan, its sodium, potassium, calcium or magnesium salts or its hydrochloride, added in compliance with Directive food for a particular nutritional use referred to in the Annex to that Directive,

if that added substance complies with the purity criteria specified for that substance in the European Pharmacopoeia( 9 ).

(3) Regulation 4 shall not apply in respect of laevorotatory tryptophan added to any food supplement if —

(a) the laevorotatory tryptophan complies with the purity criteria specified for that substance in the European Pharmacopoeia; and

(b) the recommended daily dose for that food supplement does not exceed 220 mg.

Offences and penalty

6. —(1) Subject to paragraph (2), a person who contravenes regulation 4 shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(2) A pharmacist or a person acting in the course of the activities of a hospital who contravenes regulation 4(b) by reason only that a document purporting to be the appropriate medical certificate is not genuine does not commit an offence if, having exercised all due diligence, he has reasonable cause to believe that the document was an appropriate medical certificate.

Enforcement

7. —(1) Subject to paragraph (2), each food authority shall enforce and execute these Regulations in its area.

(2) Each port health authority shall enforce and execute these Regulations in its district in relation to imported food.

Application of various provisions of the Act

8. 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 any Part of it shall be construed as a reference to these Regulations —

(a) section 2 (extended meaning of “sale” etc. );

(b) section 3 (presumptions that food intended for human consumption);

(c) section 20 (offences due to fault of another person);

(d) section 21 (defence of due diligence) as it applies for the purposes of section 14 or 15;

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

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

(g) 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 that subsection as applied by paragraph (f) above;

(h) section 35(1) (punishment of offences)( 10 ) in so far as it relates to offences under section 33(1) as applied by paragraph (f) above;

(i) section 35(2) and (3) in so far as it relates to offences under section 33(2) as applied by paragraph (g) above;

(j) section 36 (offences by bodies corporate);

(k) section 36A (offences by Scottish partnerships)( 11 ); and

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

Condemnation of food

9. Where any food is certified by a food analyst as being food which it is an offence under these Regulations to sell, that food may be treated for the purposes of section 9 of the Act (under which food may be seized and destroyed on the order of a justice of the peace)( 12 ) as failing to comply with food safety requirements.

Revocations

10. —(1)The Tryptophan in Food Regulations 1990( 13 ) are revoked in relation to England.

(2)Regulation 10 of the Food for Particular Nutritional Uses (Addition of Substances for Specific Nutritional Purposes) (England) Regulations 2002( 14 ) and regulation 14 of the Processed Cereal–based Foods and Baby Foods for Infants and Young Children (England) Regulations 2003( 15 ) are revoked.