The Food Additives, Flavourings, Enzymes and Extraction Solvents (Scotland) Regulations 2013

Made: 11th September 2013

Laid before the Scottish Parliament: 13th September 2013

Coming into force: 31st October 2013

The Scottish Ministers make the following Regulations in exercise of the powers conferred by sections 6(4), 16(1)(a), (c), (e) and (f), 17(1) and (2), 26(1) and (3), and 48(1) of the Food Safety Act 1990 , 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 Article of or an Annex to any of the EU instruments specified in regulation 2(4) to be construed as a reference to that Article or that Annex as amended from time to time.

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

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 — Introductory

Citation, extent and commencement

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These Regulations may be cited as the Food Additives, Flavourings, Enzymes and Extraction Solvents (Scotland) Regulations 2013, extend to Scotland only and come into force on 31st October 2013.

Interpretation

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• (1) In these Regulations—

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

• ...

• “Regulation 2065/2003” means Regulation (EC) No 2065/2003 of the European Parliament and of the Council on smoke flavourings used or intended for use in or on foods ;

• “Regulation 1332/2008” means Regulation (EC) No 1332/2008 of the European Parliament and of the Council on food enzymes ;

• “Regulation 1333/2008” means Regulation (EC) No 1333/2008 of the European Parliament and of the Council on food additives ...

• “Regulation 1334/2008” means Regulation (EC) No 1334/2008 of the European Parliament and of the Council on flavourings and certain food ingredients with flavouring properties for use in and on foods ...

• “authorised officer” means any person who is authorised in writing, either generally or specially, by a food authority to act in matters arising under these Regulations;

• (2) Other expressions used in these Regulations and in the ... instruments listed in paragraph (4) have the same meaning in these Regulations as they do in those instruments.

• (3) Any reference in these Regulations to a provision of any of the ... instruments listed in paragraph (4) is a reference to that provision as amended from time to time.

• (4) The instruments are Regulation 2065/2003, Regulation (EC) No 1331/2008 of the European Parliament and of the Council establishing a common authorisation procedure for food additives, food enzymes and food flavourings , Regulation 1332/2008, Regulation 1333/2008 and Regulation 1334/2008.

• (5) The expression “the assimilated Regulations” means Regulation 2065/2003, Regulation 1332/2008, Regulation 1333/2008 and Regulation 1334/2008.

PART 2 — Food additives, flavourings and enzymes

Offence of contravening EU requirements on food additives

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Any person who contravenes, or who uses or places on the market a product that fails to comply with, any of the provisions of Regulation 1333/2008 specified in the first column of Schedule 1, as read with transitional measures contained in or to be read with that Regulation, commits an offence.

Offence of contravening EU requirements on flavourings, including smoke flavourings

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Any person who contravenes, or who uses or places on the market a product which fails to comply with, any of the provisions of Regulation 1334/2008 specified in the first column of Schedule 2, as read with ... transitional measures contained in or to be read with Regulation 1334/2008, commits an offence.

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Any person who contravenes, or who uses or places on the market a product which fails to comply with, any of the provisions of Regulation 2065/2003 specified in the first column of Schedule 3, ... commits an offence.

Offence of contravening EU requirements on food enzymes

6

Any person who contravenes, or who uses or places on the market a product which fails to comply with, any of the provisions of Regulation 1332/2008 specified in the first column of Schedule 4, as read with Articles 18 and 24 (transitional measures) of that Regulation, commits an offence.

PART 3 — Extraction solvents

Controls on extraction solvents

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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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The provisions of this Part do not apply to any extraction solvent—

• (a) used in the production of any food additives, vitamins or any other nutritional additives, unless such food additives, vitamins or other nutritional additives are listed in schedule 6; or

• (b) intended for export outside Great Britain.

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In this Part “permitted extraction solvent” means—

• (a) an extraction solvent that—

• (i) is listed in schedule 6;

• (ii) is used in accordance with the conditions of use and within any maximum residue limits specified in schedule 6;

• (iii) does not contain a toxicologically dangerous amount of any element or substance; and

• (iv) subject to any exceptions deriving from specific purity criteria, does not contain more than 1 mg/kg of arsenic or more than 1 mg/kg lead; ...

• (v) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (b) water to which substances regulating acidity or alkalinity may have been added; or

• (c) food substances which possess solvent properties.

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No person may use as an extraction solvent in the production of food any extraction solvent that is not a permitted extraction solvent.

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• (1) No person may place on the market—

• (a) an extraction solvent that is not a permitted extraction solvent; or

• (b) any food having in it or on it an added extraction solvent that is not a permitted extraction solvent.

• (2) No person may place on the market an extraction solvent that does not meet the requirements of regulation 12.

12

• (1) Subject to paragraph (2), the following information must appear on the packaging, container or label—

• (a) the commercial name as indicated in schedule 6;

• (b) a clear indication that the material is of a quality suitable for use for the extraction of food or food ingredients;

• (c) a reference by which the batch or lot may be identified;

• (d) the name or business name and address of the manufacturer or packer or of a seller established in the United Kingdom;

• (e) the net quantity given as units of volume; and

• (f) if necessary, the special storage conditions or conditions of use.

• (2) The particulars specified in subparagraphs (c), (d), (e) and (f) of paragraph (1) may alternatively appear on the trade documents relating to the batch or lot which are to be supplied with, or prior to, the delivery.

• (3) The information specified in paragraph (1) must be easily visible, clearly legible and indelible.

• (4) The information specified in paragraph (1) may be provided in more than one language, but at least one of those languages must be easily understood by the purchaser unless other measures have been taken to ensure that the purchaser is informed of the specified information.

PART 4 — Administration and enforcement

Competent authorities

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The ... authority for the purpose of Article 7 of Regulation 2065/2003 is the Food Standards Scotland.

Enforcement authorities

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It is the duty of each food authority within its area to execute and enforce these Regulations and the assimilated Regulations.

Offences and penalties

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• (1) Any person who contravenes regulation 10 or 11 commits an offence.

• (2) Any person who commits an offence under regulation 3, 4, 5, 6 or 15(1) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

Condemnation of food

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• (1) Paragraph (2) applies where it appears to an authorised officer that—

• (a) a product fails to comply with any of the requirements specified in the first column of Schedule 1, as read with transitional measures contained in or to be read with Regulation 1333/2008;

• (b) a product fails to comply with any of the requirements specified in the first column of Schedule 2, ... as read with transitional measures contained in or to be read with Regulation 1334/2008;

• (c) a product fails to comply with any of the requirements specified in the first column of Schedule 3, ...;

• (d) a product fails to comply with any of the requirements specified in the first column of Schedule 4, as read with Articles 18 and 24 of Regulation 1332/2008; or

• (e) a food is placed on the market in contravention of the prohibition in regulation 11(1)(b).

• (2) Where this paragraph applies, subsections (3) to (9) of section 9 of the Act apply with the following modifications—

• (a) references to “food” are to be read as including a reference to “product”;

• (b) references to “food safety requirements” are to be read as including a reference to—

• (i) any of the requirements referred to in sub-paragraphs (1)(a) to (d);

• (ii) the prohibition referred to in sub-paragraph (1)(e).

Application of various provisions of the Food Safety Act 1990

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• (1) The following provisions of the Act apply for the purposes of these Regulations with the modification that any reference in those provisions to the Act or Part of it is to be construed as a reference to these Regulations—

• (a) section 20 (offences due to fault of another person);

• (b) section 21 (defence of due diligence) with the modification that—

• (i) subsections (2) to (4) apply in relation to an offence under regulation 3, 4, 5, 6 or 15 as they apply in relation to an offence under section 14 or 15; and

• (ii) in subsection (4) the references to “sale” are deemed to include references to “placing on the market”;

• (c) section 30(8) (which relates to documentary evidence);

• (d) section 35(1) (punishment of offences), in so far as it relates to offences under section 33(1) as applied by paragraph (2)(b);

• (e) section 35(2) and (3) , in so far as it relates to offences under section 33(2) as applied by paragraph (2)(c);

• (f) section 36 (offences by bodies corporate); and

• (g) section 36A (offences by Scottish partnerships) .

• (2) The following provisions of the Act apply for the purposes of these Regulations with the modification that any reference in those provisions to the Act is to be construed as including a reference to the assimilated Regulations and these Regulations—

• (a) section 3 (presumption that food intended for human consumption) with the modification that the references to “sold” and “sale” are deemed to include references to “placed on the market” and “placing on the market” respectively;

• (b) section 33(1) (obstruction etc. of officers);

• (c) section 33(2), with the modification that the reference to “any such requirement as is mentioned in subsection (1)(b) above” is deemed to be a reference to any such requirement as is mentioned in that subsection as applied by sub-paragraph (b); and

• (d) section 44 (protection of officers acting in good faith).

• (3) Section 34 of the Act (time limit for prosecutions) applies to offences under these Regulations as it applies to offences punishable under section 35(2) of the Act.

PART 5 — General

Consequential and other amendments

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• (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (2) In regulation 2(1) (interpretation) of the Jam and Similar Products (Scotland) Regulations 2004 , in the definition of “permitted sweetener” for the expression “the Food Additives (Scotland) Regulations 2009” substitute “ Regulation (EC) No 1333/2008 of the European Parliament and of the Council on food additives ”.

Revocations

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The instruments listed in the first column of Schedule 5 are revoked to the extent specified in the second column.

SCHEDULE 1 — Specified provisions of Regulation 1333/2008

Provision of Regulation 1333/2008	Subject matter
Article 4.1 (as read with Articles 11.3 and 11.4, 12, 13.2, and 18.1(a), 18.2 and 18.3)	Requirement that only food additives authorised in accordance with Regulation 1333/2008 be placed on the market as such and that they be used in accordance with any conditions specified in those Articles and in the authorisations concerned.
Article 4.2 (as read with Articles 12, 13.2 and 18.3)	Requirement that only food additives authorised in accordance with Regulation 1333/2008 may be used in food additives, food enzymes, food flavourings and nutrients and under the conditions of use specified in the authorisations concerned.
Article 4.5	Requirement that food additives comply with the specifications referred to in Article 14 of Regulation 1333/2008.
Article 5	Prohibition on placing on the market of food additives or food containing food additives if the use of the food additive does not comply with Regulation 1333/2008.
Article 11.2	Requirement to use food additives in accordance with the quantum satis principle where no maximum numerical level is fixed for the additive concerned.
Article 15	Prohibition on use of food additives in unprocessed foods except where provided for in authorisations in accordance with Regulation 1333/2008.
Article 16	Prohibition on use of food additives in foods for infants and young children (including dietary foods for infants and young children for special medical purposes) except where provided for in authorisations in accordance with Regulation 1333/2008.
Article 17	Requirement to use only food colours authorised in accordance with Regulation 1333/2008 for the purpose of health marking meat or meat products, decorative colouring of eggshells or stamping of eggshells.
Article 18.1(b) (as read with Article 18.2)	Requirement that food additives be present in food to which a food additive, food enzyme or food flavouring has been added, only if the additive is permitted in the additive, enzyme or flavouring under Regulation 1333/2008, has been carried over to the food via the additive, enzyme or flavouring and has no technological function in the final food.
Article 18.1(c) (as read with Article 18.2)	Requirement that food additives be present in foods to be used solely in the preparation of a compound food only if the compound food complies with Regulation 1333/2008.
Article 18.4	Requirement that food additives be used as sweeteners in compound foods with no added sugars, energy reduced compound foods with no added sugars, energy reduced compound foods, compound dietary foods intended for low calorie diets, non cariogenic compound foods and compound foods with an increased shelf life only if the sweetener is permitted in any of the ingredients of the compound food.
Article 21.1 (as read with Article 22)	Requirement that food additives not intended for sale to the final consumer be labelled, in accordance with Article 22 of Regulation 1333/2008, visibly, clearly legibly and indelibly and in a language easily understandable to purchasers.
Article 23.1 (as read with Article 23.2 and 23.5)	Prohibition on marketing of food additives sold singly or mixed with each other and/or other food ingredients and intended for sale to the final consumer unless their packaging contains specified information.
Article 23.3 (as read with Article 23.5)	Requirement that the labelling of table-top sweeteners containing polyols and/or aspartame and/or aspartame – acesulfame salt bear specified warnings.
Article 23.4	Requirement that manufacturers of table top sweeteners make available by appropriate means the information necessary to allow safe use by consumers.
Article 24.1 (as read with Article 24.2)	Requirement that labelling of the food containing the colours listed in Annex V should contain the additional information specified in that Annex.
Article 26.1	Requirement that producers and users of food additives inform the Authority immediately of any new scientific or technical information which might affect the assessment of the safety of the food additive concerned.
Article 26.2	Requirement that producers and users of food additives, at the request of the Authority, inform it of the actual use of the food additive concerned.

SCHEDULE 2 — Specified provisions of Regulation 1334/2008