The Marketing of Horticultural Produce (Scotland) Regulations 2009

Made: 3rd June 2009

Laid before the Scottish Parliament: 4th June 2009

Coming into force: 1st July 2009

The Scottish Ministers make the following Regulations in exercise of the powers conferred by sections 16(1)(e) and (2)(b) and 17(1) of the Food Safety Act 1990 and section 2(2) of, and paragraph 1A of Schedule 2 to, the European Communities Act 1972 , and all other powers enabling them to do so.

There has been 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 .

These Regulations make provision for a purpose mentioned in section 2(2) of the European Communities Act 1972, and it appears to the Scottish Ministers that it is expedient for the references in the Regulations to Community instruments to be references to those instruments as amended from time to time.

Citation, commencement and extent

1

• (1) These Regulations may be cited as the Marketing of Horticultural Produce (Scotland) Regulations 2009 and come into force on 1st July 2009.

• (2) These Regulations extend to Scotland only.

Interpretation

2

• (1) In these Regulations–

• “authorised officer” means any person (whether or not an officer of the Scottish Ministers) who is authorised for the purposes of these Regulations by the Scottish Ministers;

• “Commission Implementing Regulation 543/2011” means Commission Implementing Regulation (EU) No 543/2011 laying down detailed rules for the application of Council Regulation (EC) No 1234/2007 in respect of the fruit and vegetables and processed fruit and vegetables sectors, as amended from time to time;

• ...

• “container” includes any basket, pail, tray, package or receptacle of any kind, whether open or closed;

• “controlled”, in relation to horticultural produce, means that the power conferred by regulation 10(1) has been exercised in relation to it and that no consent to its movement has been given under regulation 13(1) when the circumstances in regulation 13(2) apply;

• “Council Regulation 2013” means Regulation (EU) No 1308/2013 of the European Parliament and of the Council establishing a common organisation of the markets in agricultural products and repealing Council Regulations (EEC) No 922/72, (EEC) No 234/79, (EC) No 1037/2001 and (EC) No 1234/2007, as amended from time totime,

• “general marketing standard” means the requirements of Article 76(1) of Council Regulation 2013 as detailed in Article 3(1) of, and Part A of Annex I to, Commission Implementing Regulation 543/2011

• “horticultural produce” means fruit and vegetables listed in Part IX of Annex I to Council Regulation 2013 to which ... marketing rules apply;

• “justice of the peace” means a justice of the peace appointed under section 67(1) of the Criminal Proceedings etc. (Reform) (Scotland) Act 2007 ;

• “label” includes any device for conveying information by written characters or other symbols, and any characters or symbols stamped or otherwise placed directly on to any horticultural produce or container, and references to the affixing of a label are construed accordingly;

• “marketing rules” means the general marketing standard and the specific marketing standards covering fresh fruit and vegetables listed in Part IX of Annex I to Council Regulation 2013 and includes the rules relating to those standards contained in Articles 74 ... and 76 of that Council Regulation and in Title II of Commission Implementing Regulation 543/2011;

• “non compliance label” means a label indicating that produce is not compliant with ... marketing rules;

• “premises” includes any place, vehicle or trailer, stall, vessel, container, moveable structure, aircraft or hovercraft;

• “specific marketing standards” means the marketing standards ... as detailed in Article 3(2) of, and PartB of Annex I to, Commission Implementing Regulation 543/2011, and “specific marketing standard” means one of those specific marketing standards;

• “stop notice label” has the meaning given in regulation 12.

• (2) A reference in these Regulations to anything done “in writing” or produced “in written form” includes a reference to an electronic communication, as defined in the Electronic Communications Act 2000 which has been recorded in written form and is capable of being reproduced in that form.

• (3) Unless otherwise provided in this Regulation, terms used in these Regulations have the same meaning as they have in Council Regulation 2013 and Commission Implementing Regulation 543/2011.

Designations and information disclosure

3

• (1) The Scottish Ministers are designated as the inspection body responsible for the purposes of Article 9(1)(b) of Commission Implementing Regulation 543/2011.

• (2) For the purposes of fulfilling the obligations on inspection bodies contained in the ... marketing rules and for the enforcement of these Regulations, the Scottish Ministers may as appropriate or where required to do so provide information to the Secretary of State or the Northern Ireland and Welsh inspection bodies ....

• (3) The Scottish Ministers may appoint officers for the purposes of the enforcement of these Regulations, in these Regulations referred to as authorised officers.

Authorised officer: powers of entry

4

• (1) An authorised officer may enter any premises at any reasonable hour for the purposes of the enforcement of these Regulations.

• (2) An authorised officer must, if requested to do so, produce a duly authenticated authorisation document.

• (3) An authorised officer may be accompanied by any other persons and any equipment as the authorised officer considers necessary.

• (4) If a sheriff, stipendiary magistrate or justice of the peace, on information in writing sworn on oath, is satisfied there are reasonable grounds for entry into any premises for the purpose of enforcing these Regulations, and–

• (a) admission to an authorised officer has been refused, or a refusal is expected, and (in either case) that notice of the intention to apply for a warrant has been given to the occupier; or

• (b) an application for admission to the premises, or the giving of such a notice, would defeat the object of the entry; or

• (c) the premises are unoccupied or the occupier is temporarily absent; or

• (d) the case is one of urgency,

the sheriff, stipendiary magistrate or justice of the peace may by a signed warrant authorise the authorised officer to enter the premises, if need be by reasonable force.

• (5) A warrant granted under paragraph (4) is valid for a period of one month.

• (6) An authorised officer who enters, by virtue of this Regulation, any premises which are unoccupied or the occupier of which is temporarily absent, must leave them as effectively secured against unauthorised entry as they were before entry.

• (7) It is an offence for a person who has obtained confidential information in the course of acting for the purposes of the enforcement of these Regulations to disclose that information, whether it was obtained on premises entered under or by virtue of these Regulations or otherwise, unless the disclosure is made in the performance of that person's duty or in accordance with section 17(2) of the Anti-terrorism, Crime and Security Act 2001 .

Authorised officer: other powers

5

• (1) An authorised officer who has lawfully entered premises for the purpose of the enforcement of these Regulations, may for that purpose–

• (a) require any person to provide such assistance, information or facilities as the authorised officer may reasonably require;

• (b) make any enquiries, observe any activity or process, and take photographs;

• (c) inspect and search the premises;

• (d) inspect any machinery or equipment and any other article on the premises;

• (e) inspect and take samples of any horticultural produce found on the premises;

• (f) inspect, seize and detain any container used in connection with horticultural produce;

• (g) have access to, inspect and copy any label, notice, document or record (in whatever form they are held) and remove them to enable them to be copied or require copies to be made;

• (h) detach, or give permission to be detached, any produce not compliant with ... marketing rules label, or stop notice label when the reasons for their being affixed no longer apply;

• (i) have access to, inspect and check the data on, and operation of, any computer and any associated apparatus or material that is or has been in use in connection with a label, notice, document or record mentioned in this Regulation, including data relating to deleted files and activity logs; and for this purpose may require any person having charge of, or otherwise concerned with the operation of the computer, apparatus or material to afford such assistance (including the provision of passwords) as may reasonably be required and, where these items are kept by means of a computer, may require them to be produced in a visible and legible form in which they may be taken away;

• (j) seize any computers and associated equipment for the purpose of copying any data, but only if that authorised officer has a reasonable suspicion that an offence under these Regulations has been committed, and provided they are returned as soon as practicable; and

• (k) seize and detain any items in sub-paragraph (g) if the authorised officer has reason to believe they may be required as evidence in proceedings under these Regulations.

• (2) An authorised officer must–

• (a) as soon as is reasonably practicable, provide to the person appearing to be responsible for any items that that authorised officer seizes and detains under paragraph (1) a written receipt identifying those items; and

• (b) as soon as is reasonably practicable after deciding that those items are no longer required, return them, apart from those to be used as evidence in any court or other proceedings under these Regulations.

Authorised officer: power to affix a non compliance label

6

• (1) Where an authorised officer, who has lawfully entered premises for the purpose of the enforcement of these regulations, finds horticultural produce subject to a specific marketing standard which has affixed to it a label or is accompanied by a notice or a document required by ... marketing rules, or is in a container to which such a label is affixed or which is accompanied by such a notice or document–

• (a) indicating in either case that that horticultural produce is of a particular class under the relevant specific marketing standard; but

• (b) which the authorised officer has reasonable cause to believe to be of an inferior class under that specific marketing standard,

the authorised officer may amend or cancel the label, notice or document and may affix to the horticultural produce, or, as the case may be, to the notice or container, a non compliance label.

• (2) For the purposes of regulations 6, 7 and 8, a non compliance label shall be–

• (a) in the form set out in Part I of Schedule 1 to these Regulations; and

• (b) completed in accordance with Part II of that Schedule.

7

• (1) Where an authorised officer, who has lawfully entered premises for the purpose of the enforcement of these Regulations, finds any horticultural produce which either has affixed to it a label or is accompanied by a notice or a document required by ... marketing rules, or is in a container to which such a label is affixed or which is accompanied by such a notice or document, indicating in either case that one of the situations in paragraphs (2) to (4) applies, an authorised officer may amend or cancel the label, notice or document and may affix to the horticultural produce, or, as the case may be, to the notice or container, a non compliance label.

• (2) Situation 1 is where the label, notice or document indicates–

• (a) that horticultural produce is of a class marketable under the specific marketing standard applicable to it; but

• (b) which the authorised officer has reasonable cause to believe does not comply with any class of that specific marketing standard but only complies with the general marketing standard.

• (3) Situation 2 is where the label, notice or document indicates–

• (a) that horticultural produce is of a class marketable under the specific marketing standard applicable to it; but

• (b) which the authorised officer has reasonable cause to believe is not of a standard marketable under ... marketing rules.

• (4) Situation 3 is where the label, notice or document indicates–

• (a) that horticultural produce complies with the general marketing standard; but

• (b) which the authorised officer has reasonable cause to believe is not of a standard marketable under ... marketing rules.

8

• (1) Where an authorised officer, who has lawfully entered premises for the purpose of the enforcement of these Regulations, finds any horticultural produce, or container holding horticultural produce, which–

• (a) does not have a label required by the ... marketing rules affixed to it;

• (b) is not accompanied by a notice or document required by the ... marketing rules;

• (c) has a label required by the ... marketing rules affixed to it, or to its container, but the label appears to the authorised officer to be incorrect (other than in relation to a particular class under the specific marketing standard applying to that horticultural produce, if applicable), or to have been altered or defaced; or

• (d) is accompanied by a notice or document required by the ... marketing rules but which appears to the authorised officer to be incorrect (other than in relation to a particular class under the specific marketing standard applying to that horticultural produce, if applicable), or to have been altered or defaced with the result that it is incorrect,

the authorised officer may, as appropriate, amend or cancel the label, notice or document and may affix to the horticultural produce, or, as the case may be, to the container, a non compliance label.

Authorised officer: Requirement to serve a notice in terms of regulations 6, 7 and 8

9

• (1) If an authorised officer deems it appropriate to affix a non compliance label to horticultural produce or to its container in terms of regulation 6, 7 or 8, the officer must, at the same time serve a written notice on the owner of the horticultural produce or an agent or employee of the owner, advising of the reasons for non compliance and clearly indicating:–

• (a) in the case where regulation 6 applies, which of the circumstances contained in regulation 6(1)(a) or (b) is applicable;

• (b) in the case where regulation 7 applies, which of the circumstances contained in regulation 7(2) to (4) is applicable; or

• (c) in the case where regulation 8 applies, which of the circumstances contained in regulation 8(1)(a) to (d) is applicable.

• (2) Any notice issued by an authorised officer in terms of this regulation shall, in addition to the information required in terms of regulation 9(1)(a), (b) or (c) (as applicable), also contain the following information:–

• (a) the Notice shall be named “Notice of Non compliance with ... marketing rules”;

• (b) reference to the Marketing of Horticultural Produce (Scotland) Regulations 2009;

• (c) a reference number to correspond with the compliance check, this reference number to be entered on the non compliance label affixed to the produce;

• (d) the name and address of the trader or importer or exporter responsible for the horticultural produce;

• (e) reasons for the non compliance with the ... marketing rules;

• (f) a warning that it is an offence in terms of these regulations to display or offer for sale, deliver or market in any other manner horticultural produce in contravention of or in non compliance with the ... marketing rules;

• (g) the product (with the variety/type claimed, if applicable);

• (h) origin of produce claimed;

• (i) class of produce claimed/attained, if applicable;

• (j) quantity of the consignment;

• (k) signature of the authorised officer;

• (l) date, time and place of the compliance check; and

• (m) an official stamp bearing the number identifying the authorised officer.

Authorised officer: powers to control the movement of horticultural produce

10

• (1) An authorised officer may, by written notice pursuant to paragraph (2), prohibit the movement of any horticultural produce if the authorised officer reasonably suspects that an offence under these Regulations is being committed in respect of that horticultural produce.

• (2) The written notice referred to in paragraph (1) must be served on the person appearing to the authorised officer to be in charge of the horticultural produce concerned and must–

• (a) specify the date, place and time of service of the notice;

• (b) contain details of the recipient of the notice;

• (c) specify the horticultural produce in relation to which the power has been exercised;

• (d) state the reason for its detention;

• (e) confirm that options for bringing the horticultural produce into conformity with the ... marketing rules or for the appropriate disposal of that horticultural produce have been discussed between the authorised officer and the person appearing to be in charge of the horticultural produce;

• (f) state the location of that horticultural produce;

• (g) state that the horticultural produce may not be moved from that location without the written consent of an authorised officer; and