The Animal Feed (Scotland) Regulations 2010

Made: 27th October 2010

Laid before the Scottish Parliament: 29th October 2010

Coming into force: 23rd November 2010

The Scottish Ministers make the following Regulations in exercise of the powers conferred by sections 66(1), 68(1), 74A(1), (2) and (4) and 84 of the Agriculture Act 1970 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.

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 references to the Annexes to the EU instruments mentioned in regulation 2(3) to be construed as references to those Annexes as they may be amended from time to time.

There has been consultation as required by section 84(1) of the Agriculture Act 1970 with such persons or organisations appearing to represent the interests concerned and 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 — Introductory and general

Citation, extent and commencement

1

These Regulations may be cited as the Animal Feed (Scotland) Regulations 2010, extend to Scotland only and come into force on 23rd November 2010.

Interpretation and scope

2

• (1) In these Regulations—

• “the Act” means the Agriculture Act 1970;

• ...

• ...

• “Regulation 1831/2003” means Regulation (EC) No 1831/2003 of the European Parliament and of the Council on additives for use in animal nutrition;

• ...

• “Regulation 767/2009” means Regulation (EC) No. 767/2009 of the European Parliament and of the Council on the placing on the market and use of feed, amending European Parliament and Council Regulation (EC) No. 1831/2003 and repealing Council Directive 79/373/EEC, Commission Directive 80/511/EEC, Council Directives 82/471/EEC, 83/228/EEC, 93/74/EEC, 93/113/EC and 96/25/EC and Commission Decision 2004/217/EC ;

• “Regulation 2020/354” means Commission Regulation (EU) 2020/354 establishing a list of intended uses of feed intended for particular nutritional purposes and repealing Directive 2008/38/EC;

• ...

• “feed authority” means Food Standards Scotland.

• (2) Any expression used in these Regulations and in Regulation 1831/2003 , Regulation 767/2009 or Regulation 2020/354 has the meaning in these Regulations that it bears in the Regulation concerned.

• (3) Any reference to an Annex to ... Regulation 1831/2003, Regulation 2020/354 or Regulation 767/2009 is a reference to that Annex as it may be amended from time to time.

• (4) These Regulations do not apply to any feed additive in category (d) or (e) of Article 6(1) of Regulation 1831/2003, with the exception of those in the functional groups listed in paragraph 4(a), (b) and (c) of Annex 1 to that Regulation .

PART 2 — Marketing and use of feed

Interpretation of this Part and Schedule 1

3

In this Part and in Schedule 1 any reference to a numbered Article or Annex is a reference to the Article or Annex so numbered in Regulation 767/2009.

Enforcement of requirements of Regulation 767/2009

4

• (1) A person who—

• (a) contravenes or fails to comply with the provisions of Regulation 767/2009 specified in Schedule 1; or

• (b) places on the market or uses any feed that fails to comply with Article 6(1) or 8,

commits an offence.

• (2) Where, pursuant to Article 17(2)(c) (specific mandatory labelling requirements for compound feed), the name of a specific feed material may be replaced by the name of the category to which the feed material belongs, only the categories listed in schedule 3 may be indicated.

Competent authorities for the purposes of Regulation 767/2009

5

The feed authority is the competent authority for the purposes of Regulation767/2009

PART 3 — Feed additives

Interpretation of this Part

6

In this Part any reference to a numbered Article is a reference to the Article so numbered in Regulation 1831/2003.

Enforcement of requirements of Regulation 1831/2003

7

• (1) A person commits an offence if that person contravenes or fails to comply with a provision specified in paragraph (2), as read, in the case of sub-paragraphs (a) and (c), with Article 2 (transitional provision) of Commission Regulation (EU) 2015/327 amending Regulation (EC) No 1831/2003 of the European Parliament and of the Council as regards requirements for the placing on the market and conditions of use of additives consisting of preparations.

• (2) The provisions are—

• (a) Article 3, paragraphs (1) to (4), (placing on the market, processing and use of feed additives), as read with Article 10 (status of existing products);

• (b) Article 12 (post-authorisation monitoring); and

• (c) Article 16, paragraphs (1) to (5) (labelling and packaging of additives and premixtures).

PART 4 — Undesirable substances in feed

Interpretation of this Part

8

In this Part—

• (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (b) “undesirable substance” means any substance or product, not being a pathogenic agent, which is present in or on a feed and—

• (i) constitutes a potential danger to human or animal health or to the environment; or

• (ii) could adversely affect livestock production.

Control of animal feeds containing undesirable substances

9

• (1) Any person who—

• (a) places on the market any products intended for animal feed that are specified in column 2 of a table in schedule 4; or

• (b) uses any such feed,

is guilty of an offence if it contains any undesirable substance listed in column 1 of that table in excess of the relevant maximum content specified in column 3.

• (2) Any person who places on the market or uses any complementary feed is guilty of an offence if—

• (a) having regard to the quantity of it recommended for use in a daily ration, it contains any undesirable substance listed in column 1 of a table in schedule 4 in excess of the maximum content specified for it in column 3 in relation to complete feeds; and

• (b) there is no provision relating to any complementary feed in the corresponding entry in column 2 of that table.

• (3) Any person who for the purpose of dilution mixes any feed with a feed that is specified in column 2 of a table in schedule 4 and which contains any undesirable substance listed in column 1 of that table in excess of the maximum content specified for it in column 3 is guilty of an offence.

• (4) Any person who places on the market or uses any feed which is not sound and genuine and of merchantable quality is guilty of an offence.

• (5) For the purposes of paragraph (4) a feed listed in column 2 of a table in schedule 4 is not sound, genuine and of merchantable quality if it contains any undesirable substance specified in column 1 of that table in excess of the maximum content specified in relation to it in column 3.

• (6) Any person who has, for the purpose of a trade or business, possession or control of any of the feeds specified in paragraph (7) shall, if required by an inspector, procure and produce to the inspector an analysis in order to demonstrate that the content of inorganic arsenic in the feed specified in that paragraph is less than 2 parts per million.

• (7) The feeds are—

• (a) palm kernel expeller;

• (b) feeds obtained from the processing of fish and other marine animals;

• (c) seaweed meal and feed materials derived from seaweed; ...

• (d) complete feeds for fish or for fur-producing animals; and

• (e) peat; leonardite.

• (8) Any person who, without reasonable excuse, fails to comply with a requirement made under paragraph (6) is guilty of an offence.

• (9) In order to reduce or eliminate sources of undesirable substances in products intended for animal feed, the feed authority must, in cooperation with feed business operators, carry out investigations to identify the sources of undesirable substances, in cases where the maximum levels are exceeded and in cases where increased levels of such substances are detected, taking into account background levels; for the purpose of ensuring a uniform approach in cases of increased levels, action thresholds to trigger investigations are set out in table in schedule 5.

PART5 — Enforcement of Regulation 2020/354

Interpretation of this Part

10

In this Part any reference to a numbered Article is a reference to the Article so numbered in Regulation 2020/354.

Control of feed intended for particular nutritional purposes

11

A person who contravenes or fails to comply with Article 1 (conditions on marketing) as read with Article 2 (derogation for feed which complies with the provisions of Directive 2008/38/EC) and Article 3 (derogation for feed labelled before 25 March 2022 in accordance with the rules applicable before 25 March 2020) commits an offence.

PART 6 — Administration and enforcement

Penalties for offences under these Regulations

12

• (1) Any person found guilty of an offence under regulation 4(1), 7(1), 9(1) to (4) or 11 is liable—

• (a) on summary conviction, to a term of imprisonment not exceeding three months or to a fine not exceeding the statutory maximum, or both; or

• (b) on conviction on indictment, to a term of imprisonment not exceeding three months or to a fine, or both.

• (2) Any person found guilty of an offence under regulation 9(8) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

Duties to enforce

13

It is the duty of the feed authority to execute and enforce the provisions of these Regulations.

PART 7 — Amendments and modifications to the Agriculture Act 1970

Amendments and modifications to the Agriculture Act 1970

14

• (1) The Act is amended or modified, as the case may be, in accordance with paragraphs (2) to (9).

• (2) In section 66 (interpretation of Part IV)—

• (a) in subsection (1) , insert at the appropriate place the following definitions:—

• “Regulation (EC) No. 1831/2003” means Regulation (EC) No. 1831/2003 of the European Parliament and of the Council on additives for use in animal nutrition;

“Regulation (EC) No. 767/2009” means Regulation (EC) No. 767/2009 of the European Parliament and of the Council on the placing on the market and use of feed, amending European Parliament and Council Regulation (EC) No. 1831/2003 and repealing Council Directive 79/373/EEC, Commission Directive 80/511/EEC, Council Directives 82/471/EEC, 83/228/EEC, 93/74/EEC, 93/113/EC and 96/25/EC and Commission Decision 2004/217/EC;

; and

• (b) for subsection (2) substitute—

(2) For the purposes of this Part of this Act material shall be treated as sold for use as a fertiliser or feeding stuff whether it is sold to be so used by itself or as an ingredient in something which is to be so used.

• (3) In section 68 (duty of seller to give statutory statement)—

• (a) after subsection (5) insert the following subsection:—

(5A) Nothing in subsections (1) to (5) applies to anyone to whom the requirements of Article 16 of Regulation (EC) No. 1831/2003 (labelling and packaging of feed additives and premixtures) or of Chapter 4 of Regulation (EC) No. 767/2009 (labelling, presentation and packaging) apply.

; and

• (b) after subsection (6) insert the following subsection:—

(7) Failure to comply with the labelling requirements of Article 16 of Regulation (EC) No. 1831/2003 or of Chapter 4 of Regulation (EC) No. 767/2009 shall not invalidate a contract of sale, but such labelling shall, regardless of any contract or notice to the contrary, have effect as a warranty by the person who gives it that the particulars contained in it are correct.

• (4) In section 69(1) (marking of material prepared for sale) omit “or feeding stuff”.

• (5) In section 70 (use of names or expressions with prescribed meanings)—

• (a) subsection (1)(a) in so far as it applies in relation to feeding stuffs shall apply as if “under Regulation (EC) No. 767/2009” were substituted for “ ;by regulations made for the purposes of this section ”; and

• (b) after subsection (5) insert the following subsection:—

(6) Nothing in subsections (2) to (4) of this section shall apply to anyone to whom the labelling requirements of Regulation (EC) No. 767/2009 apply.

• (6) In section 71 (particulars to be given of certain attributes if claimed to be present)—

• (a) subsection (4) in so far as it applies in relation to feeding stuffs shall apply as if—

• (i) “the requirements of Article 13 (claims) of Regulation (EC) No. 767/2009” were substituted for “ ;subsection (1) of this section ”; and

• (ii) “that Article” were substituted for “ ;that subsection ”; and

• (b) after subsection (5) insert the following subsection:—

(6) Nothing in subsections (1) to (3) of this section shall apply to anyone to whom Article 13 (claims) of Regulation (EC) No. 767/2009 applies.

• (7) Omit sections 73 (deleterious ingredients in feeding stuff) and 73A.

• (8) In section 74 (limits of variation) after subsection (2) insert the following subsection:—

(3) Nothing in subsection (2) shall apply to anyone to whom Article 11.5 and Annex IV (permitted tolerances) of Regulation (EC) No. 767/2009 applies.

• (9) Section 74A(3) does not apply to regulations concerning feed.

PART 8 — Amendments to Regulations

Amendment of the Feed (Hygiene and Enforcement) (Scotland) Regulations 2005

15

• (1) The Feed (Hygiene and Enforcement) (Scotland) Regulations 2005 are amended in accordance with paragraphs (2) to (6).

• (2) In regulation 2(1) (interpretation)—

• (a) after the definition of “agricultural analyst” insert the definition—

“the Animal Feed Regulations” means the Animal Feed (Scotland) Regulations 2010;

; and

• (b) after the definition of “Regulation 183/2005” insert the definition—