Title, commencement and application

1. These Regulations may be cited as the Contaminants in Food (England) Regulations 2005, come into force on 1st January 2006 and apply in relation to England only.

Interpretation

2. —(1) In these Regulations —

“the Act” means the Food Safety Act 1990;

“authorised lettuce” means lettuce of the kind specified in point 1.3 of section 1 of Annex I to the Commission Regulation, which complies with the conditions of the derogation under Article 3b.2 of that Regulation in relation to the United Kingdom;

“authorised officer” means any person who is authorised in writing, either generally or specifically, by a food authority or as the case may be a port health authority to act in matters arising under these Regulations;

“authorised spinach” means spinach of the kind specified in point 1.1 of section 1 of Annex I to the Commission Regulation, which complies with the conditions of the derogation under Article 3b.1 of that Regulation in relation to the United Kingdom;

“the Commission Regulation” means Commission Regulation 4 ) as corrected by a corrigendum published on 30th November 2001( 5 ), and as amended by Council Regulation 6 ), Commission Regulation 7 ), Commission Regulation 8 ), Commission Regulation 9 ) as corrected by a corrigendum published on 23rd March 2002( 10 ), Commission Regulation 11 ) as corrected by a corrigendum published on 14th June 2002( 12 ), Commission Regulation 13 ), Commission Regulation 14 ), Commission Regulation 15 ), Commission Regulation 16 ), Commission Regulation 17 ), Commission Regulation 18 ), Commission Regulation 19 ), Commission Regulation 20 ), Commission Regulation 21 ), Commission Regulation 22 ), and Commission Regulation 23 );

“Directive analysis for the official control of the levels for certain contaminants in foodstuffs( 24 ) as amended by Commission Directive 25 ), Commission Directive 26 ) and Commission Directive 27 );

“Directive analysis for the official control of the levels of lead, cadmium, mercury and 3–MCPD in foodstuffs( 28 ) as corrected by Commission Decision 29 ) and as amended by Commission Directive 30 );

“Directive analysis for the official control of the levels of ochratoxin A in foodstuffs( 31 ) as amended by Commission Directive 32 );

“Directive analysis for the official control of dioxins and the determination of dioxin–like PCBs in foodstuffs( 33 ) as corrected by a corrigendum published on 20th September 2002( 34 ) and as amended by Commission Directive 35 );

“Directive analysis for the official control of the levels of patulin in foodstuffs( 36 );

“Directive analysis for the official control of the levels of tin in canned foods( 37 );

“Directive analysis for the official control of the levels of benzo(a) pyrene in foodstuffs( 38 );

“food authority” includes neither the appropriate Treasurer referred to in section 5(1)(c) of the Act (which deals with the Inner Temple and the Middle Temple) nor a port health authority;

“port health authority” means —

“Regulation 882/2004” means Regulation food law, animal health and animal welfare rules( 40 ).

(2) Any other expression used in these Regulations and in the Commission Regulation has the same meaning in these Regulations as it bears in the Commission Regulation.

Offences and penalties

3. —(1) Subject to the transitional arrangements contained in the Community provisions specified in paragraph (2), a person is guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale if —

(a) he places on the market any food (other than authorised lettuce or 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

(b) he contravenes Article 2.3, 4.2 or 4a of the Commission Regulation.

(2) The Community provisions mentioned in paragraph (1) are —

(a) Article 7 of the Commission Regulation;

(b) Article 2 of Commission Regulationfoods for infants and young children;

(c) Article 3 of Commission Regulationfoods for infants and young children;

(d) Article 2 of Commission Regulation

(e) Article 2 of Commission Regulation

Enforcement

4. It shall be the duty of each food authority within its area and each port health authority within its district to execute and enforce these Regulations.

Procurement and analysis of samples

5. —(1) Where a sample is to be taken under section 29(b) or (d) of the Act of a food specified in Annex I to the Commission Regulation, that sample shall be taken in accordance with the methods of taking samples described or referred to —

(a) Nitrate

(a) (subject to the requirement specified in column 3 of Section 1 of Annex I to the Commission Regulation( 41 )), in the Annex to Commission Directive animal origin and repealing Directive 42 ), 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) Aflatoxins

(b) in Annex I to Directive 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) Ochratoxin A

(c) in Annex I to Directive 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) Patulin

(d) in Annex I to Directive 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) Lead, cadmium, mercury and 3-MCPD

(e) in Annex I to Directive 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;

(f) Dioxins and dioxin-like PCBs

(f) in Annex I to Directive 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;

(g) Tin

(g) in Annex I to Directive 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; and

(h) Benzo(a)pyrene

(h) in Annex I to Directive food concerned is of a description specified in Section 7 of Annex I to the Commission Regulation to the sampling of which that Directive applies pursuant to Article 1.3 of that Regulation.

Preparation and analysis of samples for aflatoxins

(2) Where, pursuant to section 29(b) or (d) of the Act as read with 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 —

(a) the sample is prepared in accordance with —

(i) paragraphs 1.1, 2 and 3 of Annex II to Directive

(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 meet the criteria specified in paragraph 4.3 of Annex II to Directive

(c) any analysis of the sample is carried out by a laboratory which has been designated in accordance with the requirements of Article 12.2 of Regulation 882/2004;

(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

(ii) is in accordance with paragraph 4.4 of that Annex.

Preparation and analysis of samples for lead, cadmium, mercury and 3-MPCD

(3) Where, pursuant to section 29(b) or (d) of the Act as read with 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 —

(a) the sample is prepared in accordance with paragraphs 1 and 2 of Annex II to Directive

(b) any analysis of the sample is carried out in accordance with methods of analysis which —

(i) in the case of analysis for lead (other than in wine), mercury or cadmium, meet the criteria specified in paragraph 3.3.1 (as read with paragraph 3.3.3) of Annex II to Directive

(ii) in the case of analysis for lead in wine, comply with the second sub–paragraph of paragraph 3.2 of that Annex, and

(iii) in the case of analysis for 3–MCPD, meet the criteria specified in paragraph 3.3.2 (as read with paragraph 3.3.3) of that Annex and as read with the note to that paragraph;

(c) any analysis of the sample is carried out by a laboratory which has been designated in accordance with the requirements of Article 12.2 of Regulation 882/2004;

(d) any analysis of the sample is carried out in such a way as to comply with the first and third sub–paragraphs of paragraph 3.4 of Annex II to Directive

(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

(ii) is in accordance with the second and fourth sub–paragraphs of paragraph 3.4 and with paragraph 3.6 of that Annex.

Preparation and analysis of samples for ochratoxin A

(4) Where, pursuant to section 29(b) or (d) of the Act as read with 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 —

(a) the sample is prepared in accordance with paragraphs 1 to 3 of Annex II to Directive

(b) any analysis of the sample is carried out in accordance with methods of analysis which meet the criteria specified in paragraph 4.3 of Annex II to Directive

(c) any analysis of the sample is carried out by a laboratory which has been designated in accordance with the requirements of Article 12.2 of Regulation 882/2004 ; 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

(ii) is in accordance with paragraph 4.4 of that Annex.

Preparation and analysis of samples for dioxins and dioxin-like PCBs

(5) Where, pursuant to section 29(b) or (d) of the Act as read with 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 —

(a) the sample is prepared in accordance with paragraph 3 of Annex II to Directive

(b) any analysis of the sample is carried out in accordance with methods of analysis which meet the criteria specified in paragraphs 5, 6 and 7 of Annex II to Directive

(c) any analysis of the sample is carried out by a laboratory which —

(i) complies with the first four sub-paragraphs of paragraph 4 of Annex II to Directive

(ii) has been designated in accordance with the requirements of Article 12.2 of Regulation 882/2004; and

(d) the reporting of the results of the analysis of that sample is in accordance with paragraph 8 of Annex II to Directive

Preparation and analysis of samples for patulin

(6) Where, pursuant to section 29(b) or (d) of the Act as read with 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 —

(a) the sample is prepared in accordance with paragraphs 1 to 3 of Annex II to Directive

(b) any analysis of the sample is carried out in accordance with methods of analysis which meet the criteria specified in paragraph 4.3 of Annex II to Directive

(c) any analysis of the sample is carried out by a laboratory which has been designated in accordance with the requirements of Article 12.2 of Regulation 882/2004 ; 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 2003/78 /EC, and

(ii) is in accordance with paragraph 4.4 of that Annex.

Preparation and analysis of samples for tin

(7) Where, pursuant to section 29(b) or (d) of the Act as read with 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 —

(a) the sample is prepared in accordance with paragraphs 1, 2 and 3, and that section of paragraph 4.6 headed “Sample preparation”, of Annex II to Directive

(b) any analysis of the sample is carried out in accordance with methods of analysis which meet the criteria specified in paragraphs 4.3 and 4.3.1 of Annex II to Directive

(c) any analysis of the sample is carried out by a laboratory which has been designated in accordance with the requirements of Article 12.2 of Regulation 882/2004 and complies with that section of paragraph 4.6 of Annex II to Directive Internal quality control”; 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

(ii) is in accordance with paragraph 4.4 of that Annex.

Preparation and analysis of samples for benzo(a)pyrene

(8) Where, pursuant to section 29(b) or (d) of the Act as read with paragraph (1), an authorised officer has taken a sample of food of the description referred to in sub-paragraph (h) 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 —

(a) the sample is prepared in accordance with paragraphs 1 to 3 of Annex II to Directive

(b) any analysis of the sample is carried out in accordance with methods of analysis which meet the criteria specified in paragraphs 4.3 and 4.3.1 of Annex II to Directive

(c) any analysis of the sample is carried out by a laboratory which has been designated in accordance with the requirements of Article 12.2 of Regulation 882/2004 and complies with that section of paragraph 4.6 of Annex II to Directive Internal quality control”; 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

(ii) is in accordance with paragraph 4.4 of that Annex.

Application of various sections of the Food Safety Act 1990

6. —(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 (presumptions that food 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 purpose of section 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 —

“ 9. —(1) An authorised officer of a food authority may at all reasonable times inspect any food intended for human consumption which has been placed 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(1)(a) of the Contaminants in Food (England) Regulations 2005.

(2) The authorised officer may either —

(a) give notice to the person in charge of the food that, until the notice is withdrawn, the food or any specified portion of it —

(i) is not to be used for human consumption, and

(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 , Directive 2004/16/EC or Directive 2005/10/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(1)(a) of the above Regulations, as appropriate and —

(a) if he is so satisfied, shall forthwith withdraw the notice;

(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 —

(a) any person who under regulation 3(1)(a) of the above Regulations might be liable to a prosecution in respect of the food shall, if he attends before the justice of the peace by whom the food falls to be dealt with, be entitled to be heard and to call witnesses; 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(1)(a) 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(1)(a) of the above Regulations he shall condemn the food and order —

(a) the food to be destroyed or to be so disposed of as to prevent it from being used for human consumption; and

(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 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 arbitration.

(8) Any person who knowingly contravenes the requirements of a notice under paragraph (a) of subsection (2) above 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 “authorised officer”, “food authority”, “placing on the market”, “Directive 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.

Consequential amendment

7. In Schedule 1 (provisions to which those Regulations do not apply) to the Food Safety (Sampling and Qualifications) Regulations 1990( 43 ) in so far as they apply in relation to England, for the entry relating to the Contaminants in Food (England) Regulations 2004 there is substituted the following entry —

Revocations

8.The Contaminants in Food (England) Regulations 2004( 44 ) and the Contaminants in Food (England) (Amendment) Regulations 2005( 45 ) are revoked.