The Official Feed and Food Controls (England) Regulations 2009

Made: 8th December 2009

Laid before Parliament: 14th December 2009

Coming into force: 25th January 2010

The Secretary of State makes the following Regulations in exercise of the powers conferred on him by section 2(2) of and paragraph 1A of Schedule 2 to the European Communities Act 1972 .

The Secretary of State, has been designated for the purposes of section 2(2) of the European Communities Act 1972 in relation to measures relating to food (including drink) including the primary production of food and measures relating to feed produced for or fed to food–producing animals , the common agricultural policy of the European Community and measures in the veterinary and phytosanitary fields for the protection of public health .

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 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.

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 there has been open and transparent public consultation during the preparation and evaluation of the following Regulations.

PART 1 — PRELIMINARY

Title, commencement and application

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These Regulations —

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

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

• (c) apply in relation to England only.

Interpretation

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• (1) In these Regulations —

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

• “the Agency” means the Food Standards Agency;

• “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;

• . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• “feed authority” means the authority required by section 67(1) of the Agriculture Act 1970 to enforce that Act within its area or district as the case may be;

• “food authority” has the meaning it bears by virtue of section 5(1) of the Act, except that it does not include the appropriate Treasurer referred to in section 5(1)(c) of the Act (which deals with the Inner Temple and Middle Temple);

• “the Import Provisions” means Part 3 of these Regulations, Title 2 Chapter 5 of Regulation 2017/625 and the Regulation 2017/625 package insofar as it and 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;

• “the Regulation 2017/625 package” means Regulation 2017/625 and the EU Regulations listed below the heading “The Regulation 2017/625 package” in Schedule 1;

• “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.

• (1A) Any reference in these Regulations to Decisions, Directives or Regulations referred to in Schedule 1 have the meanings respectively given to them in that Schedule.

• (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) Where any functions under the Act are assigned—

• (a) by an order under section 2 or 7 of the Public Health (Control of Disease) Act 1984 , to a port health authority;

• (b) by an order under section 6 of the Public Health Act 1936 , to a joint board for a united district; or

• (c) by an order under paragraph 15(6) of Schedule 8 to the Local Government Act 1985 , to a single authority for a metropolitan county,

any reference in these Regulations to a food authority shall be construed, so far as relating to those functions, as a reference to the authority to whom they are so assigned.

• (5) 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) Subject to paragraphs (2) and (5), any body specified in Column 1 of Schedule 4 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 feed law.

• (2) Where the feed authority is designated as a competent authority pursuant to paragraph (1) the designation shall extend to its area or district only, as the case may be.

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

• (6) 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 extends only to those operations in respect of which the Agency executes and enforces the Food Safety and Hygiene (England) Regulations 2013 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 the Secretary of State 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 Wales, Northern Ireland and Scotland, 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 any other applicable legislation.

• (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 the Secretary of State 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 he 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 feed authorities and food authorities the Secretary of State 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 Parliament after being issued.

• (2) The Agency may, after consulting the Secretary of State, give a feed authority or 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 feed authority and 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 mandatory order.

• (5) The Agency shall consult the Secretary of State before making an application under paragraph (4).

• (6) Before issuing any code under this regulation, the Secretary of State 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 his 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) The power to enter premises conferred on an authorised person includes power to take with him any other person he may consider appropriate.

• (7) An authorised person shall on request —

• (a) produce his 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 he is, unless the disclosure is made in the performance of his 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 paragraphs (1) and (3) respectively of regulation 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 but does not include the European Commission; 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 —