The Official Feed and Food Controls (Scotland) Regulations 2009

Made: 17th December 2009

Laid before the Scottish Parliament: 18th December 2009

Coming into force: 25th January 2010

The Scottish Ministers make the following Regulations in exercise of the powers conferred by 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.

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 any reference to an EU instrument defined in Schedule 1 to be construed as a reference to that instrument as amended from time to time.

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 .

PART 1 — PRELIMINARY

Citation, commencement and extent

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These Regulations—

• (a) may be cited as the Official Feed and Food Controls (Scotland) Regulations 2009;

• (b) come into force on 25th January 2010; and

• (c) extend to Scotland only.

Interpretation

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• (1) In these Regulations—

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

• “the Agency” means the Food Standards Scotland;

• “authorised officer”—in relation to a competent authority, means any person (whether or not an officer of the authority) who is authorised by the authority in writing for the purposes of regulation 14; andin relation to a relevant enforcement authority, means any person (whether or not an officer of the authority) who is authorised by the authority in writing, either generally or specially, to act in matters arising under Part 2 of these Regulations in relation to its enforcement responsibilities under regulation 17;

• “competent authority” means, other than in regulations 23 and 24, an authority which, by virtue of regulation 3, is designated for the purposes of any of the provisions of Regulation 2017/625;

• “Decision 2007/275”, “Directive 2004/41”, “Regulation 999/2001”, “Regulation 178/2002”, “Regulation 852/2004”, “Regulation 853/2004”, "Regulation 183/2005", “Regulation 1688/2005”, “Regulation 2073/2005”, “Regulation 2074/2005”, “Regulation 2017/185”, “Regulation 2017/625”, “Regulation 2019/478”, Regulation 2019/624” , “Regulation 2019/625”, “Regulation 2019/626”, “Regulation 2019/627”, “Regulation 2019/628”, “Regulation 2019/1012” , “Regulation 2019/1013”, “Regulation 2019/1014”, “Regulation 2019/1081”, “Regulation 2019/1602”, “Regulation 2019/1666”, “Regulation 2019/1715”, “Regulation 2019/1793”, “Regulation 2019/1873”, “Regulation 2019/2007”, “Regulation 2019/2074”, ”Regulation 2019/2122” , “Regulation 2019/2123”, “Regulation 2019/2124”, “Regulation 2019/2126”, “Regulation 2019/2129”, “Regulation 2019/2130”, “Regulation 2020/466” and “Regulation 2020/1158”, have the meanings respectively given to them in schedule 1,

• “feed authority” means Food Standards Scotland;

• “the Import Provisions” means Part 3 of these Regulations, Title II, Chapter V of Regulation 2017/625 and the Regulation 2017/625 package insofar as they apply to product as defined in regulation 22;

• “the Official Control Regulations” means these Regulations and Regulation 2017/625 and the Regulation 2017/625 package;

• “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 and Regulation 183/2005;

• “the Regulation 2017/625 package” means “Regulation 2019/478”, “Regulation 2019/624”, “Regulation 2019/625”, “Regulation 2019/626”, “Regulation 2019/627”, “Regulation 2019/628”, “Regulation 2019/1012”, “Regulation 2019/1013”, “Regulation 2019/1014”, “Regulation 2019/1081”, “Regulation 2019/1602”, “Regulation 2019/1666”, “Regulation 2019/1715”, “Regulation 2019/1793”, “Regulation 2019/1873”, “Regulation 2019/2074”, “Regulation 2019/2122”, “Regulation 2019/2123”, “Regulation 2019/2124”, “Regulation 2019/2126”, “Regulation 2019/2129”, “Regulation 2019/2130”, “Regulation 2020/466” and “Regulation 2020/1158”,

• “relevant enforcement authority” means a body which, by virtue of regulation 17, is made responsible for executing and enforcing any provision of Part 2 of these Regulations;

• “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 one defined in paragraph (1) that is used both in these Regulations and in the Act has the meaning it bears in the Act.

• (3) Unless the contrary intention appears, any expression used both in these Regulations and in Regulation 178/2002, Regulation 2017/625 or any of the EU Regulations in the Regulation 2017/625 package has the meaning it bears in Regulation 178/2002, Regulation 2017/625 or any of the EU Regulations in the Regulation 2017/625 package as the case may be.

• (4) In these Regulations, any reference to an EU instrument defined in Schedule 1 is a reference to that instrument as amended from time to time.

PART 2 — MAIN PROVISIONS

Competent authorities

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• (1) The Agency is the designated competent authority for the purposes of Regulation 2017/625 in so far as it applies to relevant feed law.

• (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (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 2017/625 indicated in the corresponding entry in Column 2 of that Schedule in so far 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) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (5) Where the Agency is designated as a competent authority pursuant to paragraph (3) for the purposes of Article 148 of Regulation 2017/625, the designation shall extend... 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

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• (1) For the purposes of enabling competent authorities, other OFFC authorities and appropriate authorities to fulfil the obligations placed upon them by Regulation 2017/625 competent authorities may exchange among themselves or provide to other OFFC authorities any information received by them in the execution and enforcement of relevant feed law or relevant food law.

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

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

• (5) For the purposes of this regulation, “other OFFC authorities” means authorities designated in the United Kingdom as competent authorities for the purposes of Regulation 2017/625 other than the competent authorities designated under these Regulations.

Obtaining information

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• (1) For the purpose of enabling competent authorities and appropriate authorities to fulfil the obligations placed on them by Regulation 2017/625 and for the purpose of executing and enforcing relevant feed law or relevant food law, a competent authority may require a delegated body—

• (a) to provide the competent authority with any information which it has reasonable cause to believe the delegated 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 delegated 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 “delegated body” includes any member, officer or employee of a delegated body.

Power to issue codes of recommended practice

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• (1) For the guidance of ... food authorities the Scottish Ministers may issue codes of recommended practice as regards—

• (a) functions conferred upon those authorities in their capacity as competent authorities by or under Regulation 2017/625; or

• (b) the execution and enforcement of the Import Provisions,

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 ... food authority a direction requiring them to take any specified steps in order to comply with a code issued under this regulation.

• (3) In exercise of the functions conferred on them as competent authorities by or under Regulation 2017/625 and in their execution and enforcement of the Import Provisions, every ... 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 them 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

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• (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

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• (1) For the purpose of carrying out its function under regulation 7 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

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• (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 7 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 him with such facilities, such records or information and such other assistance as he 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 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

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• (1) In regulations 7 to 9 “relevant audit legislation” means relevant feed law and relevant food law in respect of which the Agency is designated as a competent authority pursuant to regulation 3(1) and (3) but does not include “relevant legislation” as defined in section 15 of the Food Standards Act 1999.

• (2) In regulations 7 to 9 “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 ...; and “enforcement” in relation to relevant audit legislation includes the execution of any provisions of that legislation.

• (3) Any reference in regulations 7 to 9 (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 8 and 9

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A person who—

• (a) intentionally obstructs a person exercising powers under regulation 9(4)(a), (b) or (c);

• (b) fails without reasonable excuse to comply with any requirement imposed under regulation 8(1) or regulation 9(4)(d); or

• (c) 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.

Right of appeal

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