The Marketing of Bananas (Scotland) Regulations 2012

Made: 13th December 2012

Laid before the Scottish Parliament: 17th December 2012

Coming into force: 1st February 2013

The Scottish Ministers make the following Regulations in exercise of the powers conferred by sections 16(1)(e) and 17(2) of the Food Safety Act 1990 (“the 1990 Act”), 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.

In accordance with section 48(4A) of the 1990 Act, the Scottish Ministers have had regard to relevant advice given by the Food Standards Agency .

The Scottish Ministers have carried out 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 references to Commission Implementing Regulation (EU) No 1333/2011 laying down marketing standards for bananas, rules on the verification of compliance with those marketing standards and requirements for notifications in the banana sector , and Council Regulation (EC) No 1234/2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation) to be construed as references to those Regulations as amended from time to time.

PART 1 — Introduction

Citation, commencement and extent

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• (1) These Regulations may be cited as the Marketing of Bananas (Scotland) Regulations 2012 and come into force on 1st February 2013.

• (2) These Regulations extend to Scotland only.

Interpretation

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• (1) In these Regulations—

• “authorised officer” means any person (whether or not an officer of the Scottish Ministers) appointed by the Scottish Ministers in accordance with regulation 3(3);

• “bananas” means bananas, intended for supply fresh to the consumer after preparation and packaging, which fall within— CN code 0803 90 10 as provided for in Part XI of Annex I to Council Regulation 2013; andthe description in Article 1 of, and Point I of Annex I to, Commission Regulation 1333/2011;

• “Commission Regulation 1333/2011” means Commission Implementing Regulation (EU) No 1333/2011 laying down marketing standards for bananas, rules on the verification of compliance with those marketing standards and requirements for notifications in the banana sector , 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 bananas, means that the power conferred by regulation 12(1) (stop notice) has been exercised in relation to those bananas and that consent to their movement has been given under regulation 14(1) when the circumstances in regulation 14(2) or (3) apply;

• “Council Regulation 2013”“ means Regulation (EU) No 1308/2013 of the European Parliament and of the Council of 17 December 2013 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 to time;

• ...

• “inspection body” means a body ... responsible for carrying out conformity checks in accordance with Articles 3 and 8 of Commission Regulation 1333/2011;

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

• “marketing rules” means any of the minimum requirements, classification, sizing, presentation and marking standards provided for in Article 1 and Annex I of Commission Regulation 1333/2011, subject to the tolerances in Point IV of that Annex;

• “non compliance label” means a label indicating that the bananas are not compliant with ... marketing rules;

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

• “stop notice label” means a label fixed in accordance with regulation 13(1).

• (2) Unless otherwise provided in this regulation, terms used in these Regulations have the same meaning as they have in Commission Regulation 1333/2011 and Council Regulation 2013.

• (3) A reference to anything done “in writing” or produced “in written form” includes a reference to an electronic communication, as defined in section 15 (general interpretation) of the Electronic Communications Act 2000 , which has been recorded in written form and is capable of being reproduced in that form.

Designations, provision of information and appointment of authorised officers

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• (1) The Scottish Ministers are designated as the competent national authority and inspection body for Scotland for the purposes of Commission Regulation 1333/2011 and Article 74 of Council Regulation 2013 in relation to bananas.

• (2) For the purposes of fulfilling the obligations on competent national authorities and 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 and request information from—

• (a) the competent national authorities and inspection bodies ... in Northern Ireland, England and Wales; ...

• (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3) The Scottish Ministers may appoint authorised officers for the purposes of the enforcement of these Regulations.

PART 2 — General offences and exercise of powers on premises

EU marketing rules: offences

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• (1) A person is guilty of an offence if the person displays or offers for sale, delivers or markets in any other manner, bananas in contravention of the ... marketing rules.

• (2) A person is guilty of an offence if the person fails to comply with any provision of Commission Regulation 1333/2011 mentioned in column 1 of Schedule 1 to these Regulations, as read with any provision mentioned in any corresponding entry in column 2 of that Schedule.

• (3) Where—

• (a) an authorised officer has inspected bananas and found them not to be compliant with the ... marketing rules; and

• (b) the person in charge of those bananas has given an undertaking, or has been responsible for the giving of an undertaking, in relation to those bananas,

it is an offence for that person to act in breach of the undertaking or to cause or permit the person's agent or employee to act in breach of that undertaking.

• (4) A person is guilty of an offence if, in purporting to provide the information particulars required by the ... marketing rules, the person gives an inaccurate or false description of those bananas on a label affixed to, or in a notice or document accompanying, those bananas.

• (5) A person, other than an authorised officer, is guilty of an offence if the person affixes, or causes or permits to be affixed, a non compliance label to any container of bananas, or to the bananas themselves or to any notice or document with the information particulars required by the ... marketing rules to accompany those bananas.

• (6) A person, other than an authorised officer, is guilty of an offence if the person removes, conceals, defaces or alters, or causes or permits to be removed, concealed, defaced or altered—

• (a) any notice or document with the information particulars required by the ... marketing rules to accompany bananas or any label which is required by those rules to be affixed to those bananas or to their container;

• (b) a non compliance label which has been affixed by an authorised officer in the execution of these Regulations to the bananas or to their container; or

• (c) any demarcation tape or other material used by an authorised officer in accordance with regulation 7(1)(f) to identify bananas or a specific lot of bananas which are found not to be compliant with the ... marketing rules.

• (7) A person is guilty of an offence if the person exports or imports any consignment of bananas to or from any place outside Great Britain without a document, label or notice which is required by the ... marketing rules to accompany those bananas.

Exercise of powers on premises

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The powers under Part 3 and Part 4 of these Regulations may not be exercised on premises used wholly as a dwelling house.

PART 3 — Powers of authorised officers

Powers of entry

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• (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, a stipendiary magistrate or a justice of the peace, on information in writing sworn on oath, is satisfied that there are reasonable grounds for entry into any premises for the purposes of enforcing these Regulations, and—

• (a) admission to an authorised officer has been refused, or a refusal of admission 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.

Other powers

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• (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 or any other article on the premises;

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

• (f) identify, with demarcation tape or other material, bananas or a specific lot of bananas which are found not to be compliant with the ... marketing rules;

• (g) inspect, seize and detain any container used in connection with bananas;

• (h) 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;

• (i) detach, or give permission to be detached, any non compliance label or stop notice label when the reasons for their being affixed no longer apply;

• (j) 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;

• (k) 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

• (l) seize and detain any items in sub-paragraph (h) if the authorised officer has reason to believe that they may be required as evidence in any court or other 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 the 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.

Power to affix labels

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Where an authorised officer, who has lawfully entered premises for the purpose of the enforcement of these Regulations, takes a bulk sample of bananas from a specific lot and finds those bananas not to be compliant with the ... marketing rules, the power to affix—

• (a) a non compliance label under regulation 9 or 10; or

• (b) a stop notice label under regulation 13;

may be exercised in relation to all or any of the bananas or containers of bananas within that lot in the same way as in relation to the bulk sample taken.

Power to affix a non compliance label

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• (1) Where an authorised officer, who has lawfully entered premises for the purpose of the enforcement of these Regulations, finds any bananas which—

• (a) have affixed to them a label or are accompanied by a notice or a document required by the ... marketing rules; or

• (b) are 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 paragraph (2) or (3) applies, the authorised officer may amend or cancel the label, notice or document and may affix to the bananas, 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 the bananas are of a particular class under ... marketing rules; but

• (b) the authorised officer has reasonable cause to believe that the bananas are of an inferior class under those rules.

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

• (a) that the bananas are of a particular class under ... marketing rules; but

• (b) the authorised officer has reasonable cause to believe that the bananas do not comply with any class under those rules.

• (4) For the purposes of this regulation and regulation 10, a non compliance label must be—

• (a) in the form set out in Part I of Schedule 2; and

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

10

Where an authorised officer, who has lawfully entered premises for the purpose of the enforcement of these Regulations, finds any bananas, or container holding bananas, which—

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

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

• (c) have a label required by the ... marketing rules affixed to them, but the label appears to the authorised officer to be incorrect (other than in relation to a particular class under the European Union... marketing rules), or to have been altered or defaced; or

• (d) are 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 ... marketing rules), 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 those bananas, or, as the case may be, to the container, a non compliance label.

Requirement to serve a notice in terms of regulation 9 or 10

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• (1) If an authorised officer deems it appropriate to affix a non compliance label to any bananas or container holding bananas, the authorised officer must, at the same time serve a written notice on the owner of the bananas or an agent or employee or the owner, advising of the reasons for non compliance and clearly indicating—

• (a) in the case where regulation 9 applies, which of the situations contained in paragraph (2) or (3) of that regulation is applicable; or

• (b) in the case where regulation 10 applies, which of the circumstances contained in paragraphs (a) to (d) of that regulation is applicable.