The Official Feed and Food Controls (Scotland) Regulations 2005

Made: 30th November 2005

Laid before the Scottish Parliament: 1st December 2005

Coming into force: 1st January 2006

The Scottish Ministers, in exercise (with regard to regulation 41 of the following Regulations) of the powers conferred by sections 16(1), 17(2) and 48(1) of the Food Safety Act 1990 , having had regard in accordance with section 48(4A) of that Act to relevant advice given by the Food Standards Agency and, in exercise (with regard to the following Regulations except regulation 41) of the powers conferred by section 2(2) of the European Communities Act 1972 and of all other powers enabling them in that behalf, 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 , hereby make the following Regulations:

PART 1 — PRELIMINARY

Citation, commencement and extent

1

These Regulations–

• (a) may be cited as the Official Feed and Food Controls (Scotland) Regulations 2005;

• (b) come into force on 1st January 2006; and

• (c) extend to Scotland only.

Interpretation

2

• (1) In these Regulations–

• “the Act” means the Food Safety Act 1990;

• “the Agency” means the Food Standards Agency;

• “authorised officer”–in relation to a competent authority, means any person appointed under regulation 3(1); andin relation to a relevant enforcement authority, means any person appointed under regulation 3(2);

• “competent authority” means the authority which, by virtue of regulation 4, is so designated for the purposes of the provisions of Regulation 882/2004 specified in that regulation;

• “Directive 2004/41”, “Regulation 999/2001” “Regulation 178/2002”, “Regulation 1831/2003”, “Regulation 852/2004”, “Regulation 853/2004”, “Regulation 882/2004” “Regulation 1688/2004”, “Regulation 2073/2005”, “Regulation 2074/2005” and “Regulation 2076/2005” have the meanings respectively given to them in Schedule 1;

• “feed authority” and “food authority” respectively mean a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 ;

• “the Official Control Regulations” means these Regulations and Regulation 882/2004;

• “premises” includes any establishment, any place, vehicle, stall or moveable structure and any ship or aircraft;

• “primary production” has the meaning it bears in Regulation 852/2004;

• “relevant enforcement authority” means a body which, by virtue of regulation 18, is made responsible for executing and enforcing regulations 6(3), 10(8), 12, 17, 19(8) and 20;

• “relevant feed law” has the meaning given to it in Schedule 2; and

• “relevant food law” has the meaning given to it in Schedule 3.

• (2) Subject to paragraph (3), any expression other than–

• (a) one defined in paragraph (1); and

• (b) for the purposes of Part 3 of these Regulations one defined in regulation 23,

• (3) Subject to paragraph (1) and, for the purposes of Part 3 of these Regulations to regulation 23, and unless the contrary intention appears, any expression used both in these Regulations and in Regulation 178/2002 or Regulation 882/2004 has the meaning it bears in Regulation 178/2002 or Regulation 882/2004 as the case may be.

Appointment of authorised officers

3

• (1) Competent authorities may in writing appoint as authorised officers, either generally or specially, such persons (whether or not officers of those bodies) as they consider necessary to act in matters arising under the Official Control Regulations.

• (2) Relevant enforcement authorities may in writing appoint as authorised officers, either generally or specially, such persons (whether or not officers of those bodies) as they consider necessary to act in matters arising under Part 2 of these Regulations.

PART 2 — MAIN PROVISIONS

Competent authorities

4

• (1) Subject to paragraphs (2) and (5), any body specified in Column 1 of Schedule 4 is designated as a competent authority for the purposes of the provisions of Regulation 882/2004 indicated in the corresponding entry in Column 2 of that Schedule in so far as those provisions apply in relation to relevant feed law.

• (2) Where the feed authority is designated as a competent authority pursuant to paragraph (1) the designation shall extend to its area only.

• (3) Subject to paragraphs (4) to (6), any body specified in Column 1 of Schedule 5 is designated as a competent authority for the purposes of the provisions of Regulation 882/2004 indicated in the corresponding entry in Column 2 of that Schedule insofar as those provisions apply in relation to relevant food law.

• (4) Where the food authority is designated as a competent authority pursuant to paragraph (3) the designation shall extend to its area only.

• (5) Where the Agency is designated as a competent authority pursuant to paragraph (1) or (3) for the purposes of Article 31(1) of Regulation 882/2004, the designation shall extend only to the operations in respect of which the Agency executes and enforces the Food Hygiene (Scotland) Regulations 2006 by virtue of regulation (5)(1)(a) of those Regulations.

• (6) Where the Agency is designated as a competent authority pursuant to paragraph (3) for the purposes of Article 31(2) of Regulation 882/2004, the designation shall extend, as regards Article 31(2)(a) to (e), only to those operations in respect of which the Agency executes and enforces the Food Hygiene (Scotland) Regulations 2006 by virtue of regulation 5(2) of those Regulations.

Exchanging and providing information

5

• (1) For the purpose of enabling competent authorities, other OFFC authorities and member States to fulfil the obligations placed on them by Regulation 882/2004 competent authorities may exchange among themselves or provide to other OFFC authorities any information received by them in the execution or enforcement of relevant feed law or relevant food law.

• (2) For the purposes of executing or enforcing relevant feed law or relevant food law, competent authorities may exchange among themselves any information received by them in the execution or enforcement of relevant feed law or relevant food law.

• (3) Competent authorities may share information received by them in the execution or enforcement of relevant feed law or relevant food law with the bodies that execute and enforce relevant feed law or relevant food law in Wales, England and Northern Ireland for the purposes of facilitating the execution or enforcement of relevant feed law or relevant food law in those countries.

• (4) Paragraphs (1), (2) and (3) are without prejudice to any other power of competent authorities to disclose information by or under Community legislation.

• (5) For the purposes of this regulation, “other OFFC authorities” means authorities designated in any part of the United Kingdom as competent authorities for the purposes of Regulation 882/2004 other than the competent authorities designated under these Regulations.

Obtaining information

6

• (1) For the purpose of enabling competent authorities and member States to fulfil the obligations placed on them by Regulation 882/2004 and for the purpose of executing or enforcing relevant feed law or relevant food law, a competent authority may require a control body–

• (a) to provide the competent authority with any information which it has reasonable cause to believe the control body is able to give; and

• (b) to make available to the competent authority for inspection by it any records which it has reasonable cause to believe are held by the control body or are otherwise within its control (and, if they are kept in computerised form, to make them available in a legible form).

• (2) The competent authority may copy any records made available to it under paragraph (1)(b).

• (3) A person who–

• (a) fails without reasonable excuse to comply with any requirement imposed under paragraph (1); or

• (b) in purported compliance with such a requirement furnishes information which that person knows to be false or misleading in any material particular or recklessly furnishes information which is false or misleading in any material particular,

is guilty of an offence.

• (4) For the purposes of paragraph (1), the term “control body” includes any member, officer or employee of a control body.

Power to issue codes of recommended practice

7

• (1) For the guidance of feed authorities and food authorities, the Scottish Ministers may issue codes of recommended practice as regards–

• (a) the exercise of functions conferred upon those authorities in their capacity as competent authorities by or under Regulation 882/2004; and

• (b) the execution and enforcement of Part 3 of these Regulations,

and any such code shall be laid before the Scottish Parliament after being issued.

• (2) The Agency may, after consulting the Scottish Ministers, give a feed authority or a food authority a direction requiring it to take any specified steps in order to comply with a code issued under this regulation.

• (3) In exercise of the functions conferred on it as a competent authority by or under Regulation 882/2004, and in executing and enforcing Part 3 of these Regulations, every feed authority and food authority–

• (a) shall have regard to any relevant provision of any such code; and

• (b) shall comply with any direction which is given under this regulation and requires it to take any specified steps in order to comply with such a code.

• (4) Any direction under paragraph (2) shall, on the application of the Agency, be enforceable by an order of the Court of Session under section 45 of the Court of Session Act 1988 .

• (5) The Agency shall consult the Scottish Ministers before making an application under paragraph (4).

• (6) Before issuing any code under this regulation, the Scottish Ministers shall have regard to any relevant advice given by the Agency.

Monitoring of enforcement action

8

• (1) The Agency has the function of monitoring the performance of enforcement authorities in enforcing relevant audit legislation.

• (2) That function includes, in particular, setting standards of performance (whether for enforcement authorities generally or for particular authorities) in relation to the enforcement of any relevant audit legislation.

• (3) Each annual report of the Agency shall contain a report on its activities during the year in enforcing any relevant audit legislation for which it is the enforcement authority and its performance in respect of–

• (a) any standards under paragraph (2) that apply to those activities; and

• (b) any objectives relating to those activities that are specified in the statement of objectives and practices under section 22 of the Food Standards Act 1999 .

• (4) The Agency may make a report to any other enforcement authority on their performance in enforcing any relevant audit legislation and such a report may include guidance as to action which the Agency considers would improve that performance.

• (5) The Agency may direct an authority to which such a report has been made–

• (a) to arrange for the publication in such manner as may be specified in the direction of, or of specified information relating to, the report; and

• (b) within such period as may be so specified to notify the Agency of what action they have taken or propose to take in response to the report.

• (6) Section 19 of the Food Standards Act 1999 shall apply in relation to information obtained through monitoring under this regulation as if it were information obtained through monitoring under section 12 of that Act.

Power to request information relating to enforcement action

9

• (1) For the purpose of carrying out its function under regulation 8 in relation to any enforcement authority the Agency may require a person mentioned in paragraph (2)–

• (a) to provide the Agency with any information which it has reasonable cause to believe that person is able to give; or

• (b) to make available to the Agency for inspection any records which it has reasonable cause to believe are held by that person or otherwise within that person's control (and, if they are kept in computerised form, to make them available in a legible form).

• (2) A requirement under paragraph (1) may be imposed on–

• (a) the enforcement authority or any member, officer or employee of the authority; or

• (b) a person subject to any duty under relevant audit legislation (being a duty enforceable by an enforcement authority) or any officer or employee of such a person.

• (3) The Agency may copy any records made available to it in pursuance of a requirement under paragraph (1)(b).

Power of entry for persons monitoring enforcement action

10

• (1) The Agency may authorise any individual (whether a member of its staff or otherwise) to exercise the powers specified in paragraph (4) for the purpose of carrying out its function under regulation 8 in relation to any enforcement authority.

• (2) No authorisation under this regulation shall be issued except in pursuance of a decision taken by the Agency itself or by a committee, sub committee or member of the Agency acting on behalf of the Agency.

• (3) An authorisation under this regulation shall be in writing and may be given subject to any limitations or conditions specified in the authorisation (including conditions relating to hygienic precautions to be taken while exercising powers in pursuance of the authorisation).

• (4) An authorised person may–

• (a) enter any premises mentioned in paragraph (5) at any reasonable hour in order to inspect the premises or anything which may be found on them;

• (b) take samples of any articles or substances found on such premises;

• (c) inspect and copy any records found on such premises (and, if they are kept in computerised form, require them to be made available in a legible form);

• (d) require any person present on such premises to provide the authorised person with such facilities, such records or information and such other assistance as the authorised person may reasonably request.

• (5) The premises which may be entered by an authorised person are–

• (a) any premises occupied by the enforcement authority;

• (b) any laboratory or similar premises at which work related to the enforcement of any relevant legislation has been carried out for the enforcement authority; and

• (c) any other premises (not being a private dwelling house) which the authorised person has reasonable cause to believe are premises in respect of which the enforcement powers of the enforcement authority are (or have been) exercisable.

• (6) An authorised person entering premises by virtue of the power of entry conferred by this regulation may be accompanied by any other person the authorised person may consider appropriate.

• (7) An authorised person shall on request–

• (a) produce that person's authorisation before exercising any powers under paragraph (4); and

• (b) provide a document identifying any sample taken, or documents copied, under those powers.

• (8) If a person who enters any premises by virtue of this regulation discloses to any person any information obtained on the premises with regard to any trade secret the person making the disclosure is, unless the disclosure is made in the performance of that person's duty, guilty of an offence.

• (9) Where the Agency is the enforcement authority in relation to relevant audit legislation this regulation applies in relation to the Agency in respect of its performance in enforcing those provisions, with the omission of paragraph (5)(a).

• (10) In this regulation “authorised person” means a person authorised under this regulation.

Meaning of “enforcement authority” and related expressions

11

• (1) In regulations 8 to 10 “relevant audit legislation” means relevant feed law and relevant food law in respect of which the Agency is designated as a competent authority under regulation 4(1) or (3) but does not include “relevant legislation” as defined in section 15 of the Food Standards Act 1999.

• (2) In regulations 8 to 10 “enforcement authority” means the authority by whom relevant audit legislation is to be enforced and includes the Agency itself, if by virtue of that legislation it is the enforcement authority in relation to it, but does not include the European Commission; and “enforcement” in relation to relevant audit legislation includes the execution of any provisions of that legislation.

• (3) Any reference in regulations 8 to 10 (however expressed) to the performance of an enforcement authority in enforcing any relevant audit legislation includes a reference to the capacity of that authority to enforce it.

Offences relating to regulations 9 and 10

12

A person who–

• (a) intentionally obstructs a person exercising powers under regulation 10(4)(a), (b) or (c);

• (b) fails without reasonable excuse to comply with any requirement imposed under regulation 9(1) or (4)(d); or

• (c) in purported compliance with such a requirement–

• (i) furnishes information which that person knows to be false or misleading in any material particular; or