The Animal Feed (Composition, Marketing and Use) (Wales) Regulations 2016

Made: 15 March 2016

Laid before the National Assembly for Wales: 17 March 2016

Coming into force: 12 May 2016

The Welsh Ministers make the following Regulations in exercise of the powers conferred on them by sections 66, 68, 74A and 84 of the Agriculture Act 1970 and section 2(2) of, and paragraph 1A of Schedule 2 to, the European Communities Act 1972 .

The Welsh Ministers have been designated for the purposes of the control and regulation of the deliberate release, placing on the market and transboundary movements of genetically modified organisms , measures relating to feed produced for or fed to food-producing animals , measures in the veterinary and phytosanitary fields for the protection of public health and measures in relation to the common agricultural policy of the European Union .

As set out above, these Regulations make provision for a purpose mentioned in section 2(2) of the European Communities Act 1972 and it appears to the Welsh Ministers that it is expedient for references in these Regulations 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 open and transparent public consultation during the preparation of these Regulations in accordance with the requirements of 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 or, in the case of provisions relating to feed for non food-producing animals, of section 84(1) of the Agriculture Act 1970.

PART 1 — Introductory and general

Title, commencement and application

1

• (1) The title of these Regulations is the Animal Feed (Composition, Marketing and Use) (Wales) Regulations 2016.

• (2) These Regulations come into force on 12 May 2016 and apply in relation to Wales.

Interpretation and scope

2

• (1) In these Regulations—

• “the Agency” (“yr Asiantaeth”) means the Food Standards Agency;

• ...

• ...

• ...

• “feed authority” (“awdurdod bwyd anifeiliaid”) means an authority identified in section 67(1A) of the Agriculture Act 1970 as having the duty to enforce Part IV of that Act within its area;

• “Regulation 178/2002” (“Rheoliad 178/2002”) means 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 ;

• “Regulation 1829/2003” (“Rheoliad 1829/2003”) means Regulation (EC) No 1829/2003 of the European Parliament and of the Council on genetically modified food and feed ;

• “Regulation 1831/2003” (“Rheoliad 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” (“Rheoliad 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” (“Rheoliad 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;

• (2) Any expression used in these Regulations and in Regulation 178/2002, Regulation 1831/2003 or Regulation 767/2009 has the meaning in these Regulations that it bears in Regulation 178/2002, Regulation 1831/2003 or Regulation 767/2009, respectively.

• (3) Any reference in these Regulations to an ... instrument defined in paragraph (1) is a reference to that ... instrument 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 — Enforcement of Regulation 178/2002

Interpretation of this Part

3

In this Part any reference to a numbered Article is a reference to the Article so numbered in Regulation 178/2002.

Offence of failing to comply with a specified provision of Regulation 178/2002

4

• (1) A person who contravenes or fails to comply with a provision specified in paragraph (2) commits an offence.

• (2) The specified provisions are—

• (a) Article 12, in so far as it relates to feed (conditions on export or re-export to third countries);

• (b) Article 15(1) (prohibition on the placing on the market or feeding to any animal of unsafe feed);

• (c) Article 16, in so far as it relates to feed (prohibition on misleading labelling, advertising or presentation);

• (d) Article 18(2) and (3) (requirements that operators must have traceability information and make such information available to competent authorities) in so far as it relates to feed business operators; and

• (e) Article 20 (responsibilities of feed business operators regarding feed that does not satisfy feed safety requirements).

Competent authorities for the purposes of Regulation 178/2002

5

The competent authority—

• (a) for the purposes of Articles 15 and 18 is the feed authority in its area; and

• (b) for the purposes of Article 20 is the feed authority in its area or the Agency.

PART 3 — Enforcement of Regulation 1829/2003

Interpretation of this Part

6

In this Part any reference to a numbered Article is a reference to the Article so numbered in Regulation 1829/2003.

Offence of failing to comply with a specified provision of Regulation 1829/2003

7

• (1) A person who contravenes or fails to comply with a provision specified in paragraph (2) commits an offence.

• (2) The specified provisions are—

• (a) Article 16(2) (prohibition on placing on the market, using or processing a product referred to in Article 15(1) unless it is covered by an authorisation and satisfies relevant conditions) ...;

• (b) Article 21(1) (requirement that the authorisation holder and the parties concerned must comply with conditions imposed on an authorisation for that product, and that the authorisation holder must comply with post-market monitoring requirements);

• (c) Article 21(3) (requirement that an authorisation holder inform the Food Safety Authority of any new scientific or technical information about a product which might affect the evaluation of the safety of its use in feed, or of any prohibition or restriction on the feed in a third country); and

• (d) Article 25 (requirement for certain labelling indications).

Competent authority for the purposes of Regulation 1829/2003

8

The national competent authority for the purposes of Chapter III of Regulation 1829/2003 is the Agency.

PART 4 — Enforcement of Regulation 1831/2003

Interpretation of this Part

9

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

Offence of failing to comply with a specified provision of Regulation 1831/2003

10

• (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-paragraph (a) or (e) with Article 2 (transitional provision) of Commission Regulation (EU) No 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 specified provisions are—

• (a) Article 3(1) (prohibition on placing on the market, processing or using a feed additive unless it is covered by an authorisation and satisfies relevant conditions), as read with paragraph (2) (national authorisation for scientific experimental purposes), paragraph (4) (conditions on mixing of additives) and Article 10 (status of existing products);

• (b) Article 3(3) (restriction on the persons who may first place on the market certain additives);

• (c) Article 12(1) (requirement that any person using or placing on the market an additive, or a feed into which it has been incorporated, or any other interested party, must ensure that any conditions which have been imposed are respected);

• (d) Article 12(2) (requirement on the holder of an authorisation to observe monitoring obligations where they have been imposed, to inform the Food Safety Authority of any new information about a product which might affect the evaluation of the safety of its use in feed, or of any prohibition or restriction on the feed imposed by the competent authority in a third country);

• (e) Article 16(1), (3) and (4) (prohibition on the placing on the market of feed additives or premixtures unless labelled in the specified manner and with prescribed information), as read with paragraph (2) (derogation for certain flavouring compounds); and

• (f) Article 16(5) (requirement that additives and premixtures must be marketed only in closed packages or containers which must be closed in such a way that the fastener is damaged on opening and cannot be re-used).

PART 5 — Enforcement of Regulation 767/2009

Interpretation of this Part and Schedule 1

11

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.

Offence of failing to comply with a specified provision of Regulation 767/2009

12

• (1) A person who—

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

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

commits an offence.

• (2) Where, pursuant to Article 17(2)(c), 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 1A may be indicated.

Competent authorities for the purposes of Regulation 767/2009

13

• (1) Each feed authority in its area is the competent authority for the purposes of—

• (a) Article 5(3), 13(1)(a) and 17(3) and Annex VII, Chapter 1, paragraph 8; and

• (b) Article 13(1)(b) as the competent authority that may request scientific substantiation of a claim and to whose attention purchasers have the right to bring doubts regarding the truthfulness of a claim.

• (2) The Agency is the competent authority for the purposes of—

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

• (b) Article 13(1)(b) as the competent authority that may submit to the Welsh Ministers doubts concerning the scientific substantiation of a claim.

• (3) The Agency and each feed authority in its area is a competent authority for the purposes of Article 5(2).

PART 6 — Undesirable substances in products intended for animal feed

Interpretation of this Part

14

In this Part—

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

• (b) “undesirable substance” (“sylwedd annymunol”) 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

15

• (1) A person who—

• (a) places on the market any feed that is specified in column 2 of a table in Schedule 1B; or

• (b) uses any such feed,

commits 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) A person who places on the market or uses any complementary feed commits 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 1B 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) A person who for the purpose of dilution mixes any feed with a feed that is specified in column 2 of a table in Schedule 1B 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 commits an offence.

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

• (5) For the purposes of paragraph (4) a feed listed in column 2 of a table in Schedule 1B shall be deemed not to be 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) A person who has, for the purpose of a trade or business, possession or control of any of the feeds specified in paragraph (7) must, 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.

• (e) peat;

• (f) leonardite.

• (8) A person who, without reasonable excuse, fails to comply with a requirement made under paragraph (6) commits an offence.

• (9) In order to reduce or eliminate sources of undesirable substances in products intended for animal feed, feed authorities must 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.

• (10) In cases of increased levels of undesirable substances listed in Schedule 1C, action thresholds to trigger investigations are set out in that Schedule.

• (11) Feed authorities must send to the Agency all relevant information and findings of the source and the measures taken to reduce the level of, or eliminate, undesirable substances.

Part 7 — Enforcement of Regulation 2020/354

Interpretation of this Part

16

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

17

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 (transitional provision for feed labelled before 25 March 2022 in accordance with the rules applicable before 25 March 2020) commits an offence.

PART 8 — Administration and enforcement

Penalties for offences under these Regulations

18

• (1) A person found guilty of an offence under regulation 4(1), 7(1), 10(1), 12(1), 15(1), (2), (3) or (4) or 17 is liable on summary conviction to a term of imprisonment not exceeding six months or to a fine, or both.

• (2) A person found guilty of an offence under regulation 15(8) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

Duties to enforce

19

It is the duty of each feed authority within its area to execute and enforce Regulation 178/2002, Regulation 1829/2003, Regulation 1831/2003, Regulation 767/2009 , Regulation 2020/354 and these Regulations.

PART 9 — Amendment and revocation

Amendment of the Official Feed and Food Controls (Wales) Regulations 2009

20

• (1) The Official Feed and Food Controls (Wales) Regulations 2009 are amended in accordance with paragraph (2).

• (2) In Schedule 2 (definition of relevant feed law)—

• (a) omit paragraph (c); and

• (b) in paragraph (f), for “the Animal Feed (Wales) Regulations 2010” substitute “ the Animal Feed (Composition, Marketing and Use) (Wales) Regulations 2016 ”.

Revocations

21

The Regulations listed in the first column of Schedule 2 are revoked to the extent specified in the second column.

SCHEDULE 1 — Specified Provisions of Regulation 767/2009