Food Law News - UK - 2004

FSA Consultation Letter, 11 October 2004

HYGIENE - Draft Food Hygiene Regulations (England) 2005 and associated industry guidance

Views and comments are sought on the draft regulations to apply the EU food hygiene regulations in England, draft industry guidance and summary guides for certain types of businesses, and a draft partial Regulatory Impact Assessment. Responses are requested by: 31 January 2005

[Note that the documents are available at present from the FSA web site at: ]

Consultation details

The key proposals are:

The EU regulations are:

The draft Food Hygiene Regulations (England) 2005

These regulations give effect to the EU Regulations by providing for their enforcement. The regulations are made under Section 2(2) of the European Communities Act and repeat, as necessary, provisions contained in the Food Safety Act 1990. They identify in Schedule 2 those provisions of the EU regulations where contravention or failure to comply constitutes an offence (Regulation 17(1)). In addition, the regulations contain certain national hygiene provisions which the EU regulations require or allow us to make. Finally, the regulations revoke the existing body of food hygiene legislation which implemented the EU food hygiene directives.
Separate regulations are being made in Scotland, Wales and Northern Ireland. These are subject to separate consultation exercises in those countries.

Specific questions/issues

Links to the Food Safety Act 1990: Enforcement Provisions

As noted above, the regulations repeat provisions already existing in the Food Safety Order. This approach is proposed as user-friendly for food businesses and enforcement authorities using the regulations. It represents an alternative to the regulations, making a restricted cross-reference to the Order which would require users to refer back to the Order to access detail on the provisions concerned.
Your views are sought on the approach proposed or whether you would prefer to retain references back to the Food Safety Act, rather than repeating the provisions in the Statutory Instrument (SI).

Enforcement responsibilities (Regulation 5)

Because the EU regulations apply to a range of food businesses, the responsibilities for enforcement have had to be broadly drawn in the SI. In particular, Regulation 5(2)(b) provides for enforcement by either the Agency or the district council. Our intention is to issue specific guidance and instructions to clarify under what circumstances a given enforcement authority will act. This will be subject to further consultation with stakeholders. We want to make responsibility for enforcement as clear as possible. Your views are particularly requested on how best this could be achieved and whether you consider there are ways in which this might be rationalised.

Enforcement in respect of ports (sea ports and airports)

The draft regulations are intended to give effect to those provisions of the EU regulations which apply to food imported into the EU from third countries. The FSA is to give further consideration to the possibility of producing separate legislation in respect of imported food. This would combine the requirements for the EU hygiene regulations together with any other changes necessary to controls on imported food to apply Regulation 882/2004. In the meantime, your comments are sought on whether the enforcement provisions to apply at ports are sufficient.

Requiring compliance with the legislation (Regulations 8 to 11)

These regulations contain the administrative means by which enforcement authorities can take steps to require compliance with the EU legislation. In many cases they replace very detailed legal provisions contained in the statutory rules listed in Schedule 7. Because the EU legislation is now contained in EU regulations, which do not require to be implemented by national legislation because they are directly applicable, we are not able to include within national legislation much of the detail that featured previously. Those detailed provisions will be contained in the instructions and guidance to enforcement authorities which we are required to produce. We will be consulting with the enforcement community and other stakeholders on these instructions and guidance in due course. In the meantime, we need to know whether the provisions are adequate to provide for enforcement or if there are elements missing which need to be included in order to be able to apply the EU regulations properly.

National provisions contained within the regulations (Regulations 29 to 32 and Schedules 3 to 6)

Draft regulation 29 and Schedule 3

This regulation preserves the existing exemption contained within the EU hygiene legislation concerning bulk transport in sea-going vessels of liquid oils or fats and the bulk transport by sea of raw sugar. The intention is that the draft should have the effect of maintaining the current requirements. Your comments are sought on whether this achieves this.

Draft regulation 30 and Schedule 4

We propose to maintain the existing temperature control requirements for certain foods. This regulation and the associated schedule is intended to have this effect, subject to making changes necessary on account of the content of the EU regulations. Your views are sought on retaining these requirements.

Draft regulation 31 and Schedule 5

The EU regulations require that national provisions be adopted in respect of the direct supply by the producer of small quantities of meat from poultry or rabbits and hares that have been slaughtered on the farm to the final consumer or to local retail establishments directly supplying such meat to the final consumer as fresh meat. Our intention is to retain the current requirements contained in the Poultry Meat, Farmed Game Bird Meat and Rabbit Meat (Hygiene and Inspection) Regulations 1995. Your views are sought on whether this is appropriate and whether the requirements give proper effect to that intention.

Draft regulation 32 and Schedule 6

The EU regulations allow us to maintain or introduce controls on the direct supply of raw milk and raw cream. It is our intention to maintain the current requirements. This is given effect to by this regulation and schedule. In addition, the schedule maintains the current arrangements in respect of charging for the sampling, analysis and examination of raw cows' milk. The Dairy Products (Hygiene) (Charges) Regulations 1995 will be revoked since they refer to national legislation which is itself to be revoked. Your views are sought on the proposal to retain the current requirements and whether the conditions laid down in Schedule 6 are adequate.

Legislation being revoked (Schedule 7)

A number of issues arise from the revocation of existing hygiene legislation and associated legislation listed in Schedule 7. The following areas are highlighted to explain the approach being taken.

The Milk and Dairies (General) Regulations 1959 and the Ice-Cream (Heat Treatment, etc.) Regulations 1959 are being revoked since their requirements are now fully covered through the operation of the EU regulations or else their provisions have been overtaken.

The Food Premises (Registration) Regulations 1991 are being revoked because it is now a directly applicable requirement that food businesses be registered. We intend to develop further guidance for food authorities enforcing this requirement and will consult stakeholders on this.

We are proposing to replace the current right of appeal against licensing decisions to a Meat Hygiene Appeals Tribunal with the right for appeals against approval decisions to be made to a magistrates' court. This will bring the procedure for fresh meat into line with that for all other products of animal origin for which approval of premises is required. The relevant provision is found in draft regulation 20. We are therefore revoking the Meat Hygiene Appeals Tribunal (Procedure) Regulations 1992. Your comments on the proposal to change the right of appeal would be welcome.

Revocation of the various meat hygiene regulations, together with changes within the EU regulations themselves, mean that it will be necessary to review and amend the Meat (Hygiene and Inspection) (Charges) Regulations 1998 (SI 1998/2095). This will be taken forward separately from this consultation.

Revocation of the Food Safety (General Food Hygiene) Regulations 1995 would have the effect of removing the requirements that require the licensing of butchers selling unwrapped fresh meat and ready-to-eat foods. The FSA is currently evaluating the effectiveness of those arrangements and will be consulting separately on this in due course.

The EU Regulations replace the rules on eggs contained in Council Decision 94/371/EC of 20 June 1994 laying down specific public health conditions for the putting on the market of certain types of eggs. Appropriate amendments will be needed to the legislation implementing those requirements. This is currently the Eggs (Marketing Standards) Regulations 1995 (SI 1995/1544). Those regulations are to be replaced in the near future and Schedule 7 reflects the fact that amendments will need to be made to legislation which is still in preparation.

Application of Regulation 854/2004

Paragraph 6 of Article 5 permits Member States to allow company staff in poultry and rabbit slaughterhouses to assist with official controls by carrying out certain specific tasks, under the full time supervision of the official veterinarian. At present company staff are used to assist Official Veterinary Surgeons (OVSs) in carrying out post-mortem inspection.

These company staff are trained to the satisfaction of the OVS, who directly supervises them. Under the new rules, company staff, including those currently carrying out post-mortem duties, would have to be trained in the same way as official meat inspectors and pass the same examination. The new rules would allow company staff to carry out post-mortem inspection only, as at present, or to carry out all the duties of an official meat inspector.

The FSA would be required, on a case-by-case basis, to decide whether an operator could be permitted to use plant staff according to the criteria in the legislation, including the establishment's history of compliance with the rules and the expertise, professional attitude and sense of responsibility of the slaughterhouse staff with regard to food safety.

A modular meat inspector training course is under development, which would allow company staff to be trained and examined in the same way as official meat inspectors for some or all of the duties of official meat inspectors. The Agency would welcome views on its proposals for the use of company staff.

Draft FSA Guidance on the Requirements of Food Hygiene Legislation applying in the UK

The Agency has produced draft guidance on the requirements of the food hygiene legislation applying in the UK. The aim is to help food businesses to understand what provisions apply to them and to guide them through the legislation. Where necessary, the guidance points food businesses to other guidance and sources of advice which will help them to understand how to comply with the relevant legal requirements.

We would particularly welcome your comments on whether this guidance is clear and helpful and presented in a way that helps you to understand what the legal requirements are that food businesses have to comply with. If there are further area which you think need explanation or clarification, please let us know.

In relation to Annex H of the Industry Guidance document, there are a number of specific areas where we would welcome your input.

Paragraphs 1 and 3 - Direct supply to the final consumer, or local retail establishment, of small quantities of wild game or wild game meat.

The FSA's initial policy consultation issued in March 2004 suggested that 'small quantities' could be defined as under 10,000 small wild game per annum and under 300 large wild game per annum. With limited exceptions, comments received during that consultation were generally supportive of under 300 deer per annum being considered a small quantity in this regard.

Several respondents to the earlier consultation also stated that a small quantity would by nature be self-defining, in that a local market could only support a certain level of trade. However, the Scottish Food Advisory Committee, a statutory Committee that advises the FSA in Scotland has recommended that this figure is too high, and that small quantities should be defined as no more than 75 deer carcasses per annum, with a maximum of two carcasses per week.

In the light of the advice from the Committee do you agree that under 300 large wild game carcasses per year remains an appropriate definition of a small quantity?

If not, what figure do you think would represent a small quantity? Please explain the food safety basis for the figure you believe should apply.

What impact do you think a definition of a small quantity of large game as no more than 75 (or 150) carcasses per annum would have on existing local trade in wild game meat?

Paragraph 4 - Retail-to-retail supplies and the interpretation of 'marginal', 'local/localised' and 'restricted'

The definition of 'cutting plant' in Regulation 853/2004 as 'An establishment used for boning and/or cutting up meat' encompasses butchers' shops and some may be affected by the interpretation of the terms 'marginal','localised' and 'restricted' and may consequently require approval as cutting plants. We are, however, in discussion with the Commission over the intention of the regulation and the possibility of an amendment that would allow butchers' shops to remain exempt from approval. Failing this, we estimate that around 1000 butchers may require approval as cutting plants. It would however be useful to have a more precise indication of the number and size of butchers' shops that would be affected.

Approval as cutting plants would not, however, be as significant a burden as licensing under the current regime:

Draft summary guidance on the new food hygiene regulations

The draft guidance referred to above is intended to provide a comprehensive guide to the legislation as it applies to all food businesses. In addition, the FSA has drafted three summary guides for particular business sectors. These are intended to be of particular help to small businesses. They highlight the key requirements of the changed legislation and attempt to explain, with the minimum of jargon, what the law requires and where businesses can get further help and advice.

We would particularly welcome comments on whether this guidance is of help. Are there further types of food business for which you think this type of summary guidance should be produced?

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