The Marketing of Fresh Horticultural Produce Regulations 2009

Made: 3rd June 2009

Laid before Parliament: 8th June 2009

Coming into force: 1st July 2009

These Regulations are made in exercise of the powers conferred by section 2(2) of, and paragraph 1A of Schedule 2 to, the European Communities Act 1972 .

The Secretary of State is a Minister designated for the purposes of section 2(2) of the European Communities Act 1972 in relation to the common agricultural policy of the European Community.

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

There has been open and transparent public consultation during the preparation of these Regulations 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.

Accordingly, the Secretary of State for Environment, Food and Rural Affairs makes the following Regulations.

PART 1 — Introduction

Title, commencement, extent and application

1

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

• (2) Regulations 1(1) and (2), 2(1) and (3), 3(1) and (2) extend to the United Kingdom.

• (3) Otherwise, these Regulations apply in relation to England only.

Interpretation

2

• (1) In these Regulations—

• (2) In these Regulations—

• “authorised officer” means an officer appointed by the Secretary of State in accordance with regulation 3(5) of these Regulations;

• “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 Regulation (EU) 2013, and includes the rules relating to those standards contained in Articles 74 and 76 of Regulation (EU) 2013 and Title II of Commission Implementing Regulation 543/2011;

• “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 12(1) (stop notice) has been exercised in relation to it and that the stop notice is for the time being in force;

• ...

• “general marketing standard” means the requirements of Article 76(1) of Regulation (EU) 2013 as detailed in Article 3(1) 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 Regulation (EU) 2013 to which marketing rules apply;

• “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;

• “labelling defect label” has the meaning given in regulation 11;

• “out-graded label” has the meaning given in regulation 10;

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

• “re-graded label” has the meaning given in regulation 9;

• “Regulation (EU) 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, as amended from time to time;

• “specific marketing standards” means the marketing standards ... as detailed in Article 3(2) and Part B 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 13.

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

Designations, provision of information, and appointment of authorised officers

3

• (1) The Secretary of State is designated as the coordinating authority for the United Kingdom under Article 9(1)(a) of Commission Implementing Regulation 543/2011.

• (2) In the capacity of coordinating authority for the United Kingdom, and for the purposes of fulfilling the obligations on coordinating authorities contained in the ... marketing rules, the Secretary of State may, without prejudice to disclosure pursuant to an order of a court or pursuant to a rule of law,—

• (a) provide information to—

• (i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (ii) the inspection bodies in Northern Ireland, Scotland and Wales designated under Article 9(1)(b) of Commission Implementing Regulation 543/2011;

• (iii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (iv) the official authorities and inspection bodies of third countries;

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

• (b) require the inspection bodies designated under Article 9(1)(b) of Commission Implementing Regulation 543/2011 in Northern Ireland, Scotland and Wales—

• (i) to provide any information which the Secretary of State has reasonable cause to believe those bodies are able to give including, but not limited to, information relating to the trader database required pursuant to Article 10 of Commission Implementing Regulation 543/2011, information relating to the inspection and risk analysis systems referred to in Chapter II of Title II of that Regulation and information relating to the results of inspections made by the relevant inspection body;

• (ii) to provide any requested information which is in computerised form in a legible form.

• (3) The Secretary of State is designated as the inspection body for England under Article 9(1)(b) of Commission Implementing Regulation 543/2011.

• (4) In the capacity of inspection body for England and for the purposes of fulfilling the obligations on inspection bodies contained in the ... marketing rules and for the enforcement of these Regulations, the Secretary of State may provide information to those mentioned in paragraph (2)(a) (ii) and (iv).

• (5) In the capacity of inspection body for England, the Secretary of State may appoint officers for the purposes of the enforcement of these Regulations, in these Regulations referred to as authorised officers.

PART 2 — General offences, derogation and exercise of powers on premises

Community marketing rules offences

4

• (1) A person is guilty of an offence if they display, offer for sale, deliver or market in any other manner, horticultural produce in contravention of or which is not compliant with—

• (a) the general marketing standard, if applicable; or

• (b) any specific marketing standard applying to that horticultural produce.

• (2) Paragraph (1) does not apply in the circumstances mentioned in regulation 5.

• (3) A person is guilty of an offence if they fail to comply with any provision of Commission Implementing Regulation 543/2011 mentioned in column 1 of the Schedule, as read with any provision mentioned in any corresponding entry in column 2 of that Schedule.

• (4) Where—

• (a) an authorised officer has inspected horticultural produce and found it not to be compliant with ... marketing rules, and

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

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

• (5) A person is guilty of an offence if, in purporting to provide the information particulars required by ... marketing rules for horticultural produce, they give an inaccurate or false description of that horticultural produce on a label affixed to, or in a notice or document accompanying, that horticultural produce.

• (6) A person, other than an authorised officer, is guilty of an offence if they affix, or cause or permit to be affixed, a re-graded label, an out-graded label or a labelling defect label to the container of horticultural produce, or to the horticultural produce itself, or to any notice or document which is required by ... marketing rules to accompany that horticultural produce.

• (7) A person, other than an authorised officer, is guilty of an offence if they remove, conceal, deface or alter, or cause or permit to be removed, concealed, defaced or altered—

• (a) any notice or document which is required by ... marketing rules to accompany horticultural produce or any label required by ... marketing rules to be affixed to that horticultural produce or to its container;

• (b) a re-graded label, an out-graded label or a labelling defect label which has been applied by an authorised officer in the execution of these Regulations to the horticultural produce or to its container;

• (c) any demarcation tape or other material used by an authorised officer in accordance with regulation 8(1)(f) to identify horticultural produce or a specific lot of horticultural produce which is found not to be compliant with ...marketing rules.

• (8) A person is guilty of an offence if they export or import any consignment of horticultural produce to or from any place outside Great Britain without a document, label or notice required by ...marketing rules to accompany that horticultural produce.

Derogation from specific marketing standards

5

Horticultural produce to which a specific marketing standard applies is not required to comply with that specific marketing standard if that horticultural produce complies with the general marketing standard and if it is—

• (a) presented for retail sale to consumers for their personal use;

• (b) labelled “product intended for processing” or with any other equivalent wording; and

• (c) not intended for industrial processing.

Exercise of powers on premises

6

The powers under Part 3 and Part 4 of these Regulations may not be exercised on premises, or part of any premises, used only as a dwelling-house.

PART 3 — Powers of authorised officers

Powers of entry

7

• (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—

• (a) be accompanied by—

• (i) such other persons as the authorised officer considers necessary;

• (ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (b) bring on to the premises such equipment as the authorised officer considers necessary.

• (4) If a justice of the peace, on sworn information in writing, is satisfied that there are reasonable grounds for entry into any premises for the purposes of enforcing these Regulations, and either—

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

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

• (d) that the case is one of urgency,

the justice may by signed warrant authorise the authorised officer to enter the premises, if need be by reasonable force.

• (5) A warrant under this regulation is valid for three months.

• (6) An authorised officer who enters by virtue of this regulation any premises which are unoccupied or from which the occupier 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 the confidential information obtained, 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 .

Other powers of an authorised officer

8

• (1) An authorised officer who has lawfully entered premises for the purposes of the enforcement of these Regulations, may for those purposes —

• (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) identify, with demarcation tape or other material, horticultural produce or a specific lot of horticultural produce which is found not to be compliant with ...marketing rules;

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

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

• (i) detach, or give permission to be detached, any re-graded label, out-graded label, labelling defect 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 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 provided they are returned as soon as practicable;

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

• (2) Where an authorised officer takes a bulk sample of horticultural produce from a specific lot in accordance with Annex V to Commission Implementing Regulation 543/2011 and finds that horticultural produce not to be compliant with the ... marketing rules, the power to affix—

• (a) a re-graded label under regulation 9(1);

• (b) an out-graded label under regulation 10(1);

• (c) a labelling defect label under regulation 11(1);

• (d) a stop notice label under regulation 13(1),

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

• (3) 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 court proceedings.

• (4) Where an authorised officer has seized and detained items under paragraph (1) for use in evidence in court proceedings and—

• (a) it is subsequently decided—

• (i) that no court proceedings are to be brought; or

• (ii) that those items are no longer needed as evidence in court proceedings; or

• (b) the court proceedings are completed and no order in relation to those items has been made by the court,

an authorised officer must return the items as soon as is reasonably practicable.

Power to affix a re-graded label

9

• (1) Where an authorised officer, who has lawfully entered premises for the purposes 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 label indicating that fact (a “re-graded label”).

• (2) The re-graded label is a label which—

• (a) shows the following information—

• (i) the personal number assigned to the authorised officer who carried out the inspection;

• (ii) the date of the inspection;

• (iii) the logotype of the Department for Environment, Food and Rural Affairs (Defra) the design of which is displayed on the website: www.defra.gov.uk or the logotype of Defra's successor;