Food Law News - UK - 2004

FSA Consultation Letter, 12 January 2004

NOVEL FOODS - Draft Kava-kava in Food (England) (Amendment) Regulations 2004

The purpose of these amending Regulations would be to introduce an amendment to regulation 3 of the Kava-kava in Food (England) Regulations 2002 SI 2002/3169 (the original Regulations). Responses are requested by 9 February 2004

Consultation details

The original Regulations prohibit the sale, possession for sale, offer, exposure or advertisement for sale, and the importation into England form outside the UK, of any food consisting of, or containing, Kava-kava (being a plant or part of a plant, or an extract from such a plant, belonging to the species Piper methysticum).

The amendment would provide an exception to the prohibition imposed by the original regulations in respect of items in transit between one European Economic Area State (EEA State) and another. This would mirror an equivalent provision in the Medicines for Human Use (Kava-kava)(Prohibition) Order 2002.

Why are we considering an amendment to the original Regulations?

In the judicial review of the Kava-kava in Food (England) Regulations 2002 and the Medicines for Human Use (Kava-kava) (Prohibition) Order 2002 one of the claimants' grounds for relief was that, unlike the Order, the Regulations failed to include an exemption for goods in transit between one EEA State and another. In court the Secretary of State undertook to reconsider the matter of this exemption and the purpose of this consultation is to give effect to that undertaking.

Consultation period

Court proceedings in relation to the omission of an exemption from the original Regulations have been adjourned until after 28 February 2004. When they resume the court will expect to see evidence that the Agency has completed its consultation on the subject of the exemption and, if the Secretary of State has decided to make amending Regulations, that they have been laid before Parliament.

Under these circumstances it is necessary to consult for less than the standard consultation period of 12 weeks. We believe that a four-week consultation is reasonable since this would enable us to meet the deadline imposed by the court; the issue under consideration, i.e. inclusion of an exemption for goods in transit, is simple; its effect is to make the Regulations less, rather than more, restrictive; and, as acknowledged by the court, there is no evidence that any parties within the UK have been affected by a lack of an exemption to date. In addition, the Agency undertook a public consultation when developing the original Regulations.

Consultation documents

A copy of draft amending Regulations is available on the FSA web site at:


The FSA would welcome comments on the following points.

1) Should the original Regulations be amended to provide an exception to the prohibition in respect of items in transit between one EEA State and another? Please state the reasons for your view.

2) The drafting of the amending Regulations enclosed with this letter.

3) The assertion that this minor, permissive amendment would impose no costs and no savings on businesses, charities or the voluntary sector if adopted. If you disagree with this statement, please provide information on the types of businesses, charities or voluntary organisations that would be affected and any associated financial costs or benefits for such organisations.

4) Any other issues related to whether or not to include an exemption for items in transit between one EEA State and another.

[For a related news item, see: 23 December 2002]

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