FSA Consultation letter, 31 January 2005
In November 2004 the new Regulation (EC) No 1935/2004 of the European Parliament and of the Council on materials and articles intended to come into contact with food was adopted. The new Regulation came into force on 3 December 2004 .
The FSA are now inviting comments on draft provisions for offences and penalties that are required by the new regulation. These are in the proposed regulations attached. Comments are also invited on the draft regulatory impact assessment. The Food Standards Agency in Scotland , Wales and Northern Ireland will each consult on parallel but separate Regulations.
The Materials and Articles in Contact with Food ( England ) Regulations 2005 will revise the penalties that have been in place since 1987 to ensure that we comply with the requirements laid down in Article 25 of the new EC Regulation. The proposed Regulations will also revoke The Materials and Articles in Contact with Food Regulations 1987 (SI No. 1987/1523 as amended), in so far as they apply to England and re-enact, with amendments where necessary, certain provisions contained in those Regulations, that have to remain in force. These latter provisions continue to implement Council Directive 78/142/EEC (materials and articles which contain vinyl chloride monomer (VCM)), Commission Directives 80/766/EEC (VCM), 85/432/EEC (VCM) and 2004/14/EC (regenerated cellulose film (RCF)).
Reasons for changing the rules
The proposed regulations provide for the enforcement in England of one EC Regulation, with revised penalties that shall apply on committing of an offence under the regulations, and one European Commission directive amending provisions on regenerated cellulose film.
Regulation (EC) No. 1935/2004 of the European Parliament and of the Council (replacing Council Directive 89/109/EEC) and its enforcement.
Council Directive 89/109/EEC, the so-called Framework Directive, was adopted nearly 16 years ago. It was implemented in the UK by, The Materials and Articles in Contact with Food Regulations 1987 and its subsequent amendments. The new EC Regulation brings the provisions established then up to date and introduces other provisions governing food contact materials and articles that already apply elsewhere in EU Food law. In addition, they provide for the development of new technologies that can be incorporated into materials and articles intended for food contact. The European Regulation was published in the Official Journal (OJ) of the European Union on 13 November 2004 (OJ No. L338 p4 13.11.2004).
The ‘new' Regulation (EC) No 1935/2004 entered into force on 3 December 2004 , except for Article 17 (traceability), which enters into force on 27 October 2006 . This later implementation date will provide time for businesses to put traceability systems in place. The new Regulation is directly applicable throughout the EU. This proposal and regulations on which we are consulting revoke the 1987 Regulations that enacted the provisions of the now revoked Council Directive 89/109/EEC. This, however, is not completely straightforward, because those Regulations also enacted EC provisions on regenerated cellulose film and vinyl chloride monomer. The regulations proposed here therefore, re-enact provisions on regenerated cellulose film with amendments made by EC Directive 2004/14/EC and re-enact the old provisions on vinyl chloride monomer, which have not changed.
Enforcement requirements for EC Regulation 1935/2004
The proposed regulations for England provide for Food Authorities, as defined by the Food Safety Act 1990, to Regulation (EC) No. 1935/2004 and The Materials and Articles in Contact with Food (Amendment) Regulations 2005
They also provide that a person found guilty of an offence under the Regulations is liable on conviction on indictment to a fine or imprisonment for a term not exceeding 10 years or both; on summary conviction to a fine not exceeding the statutory maximum or to a term of imprisonment not exceeding 6 months or to both. These penalties are in line with The Food Safety Act 1990. However, they are higher than the level five fine (£5000) provided for originally in the 1987 Regulations. This reflects the requirement in the European Regulation to ensure that penalties are dissuasive as well as being effective and proportionate.
In Regulation 13(1) of the proposed regulations, reference is made to the Government Chemist in the context of the court requiring appropriate testing of samples. The Laboratory of the Government Chemist, we understand, is a private company and we invite comments on whether this provision remains appropriate. The regulation has been carried forward in its original form from the 1987 regulations that this proposal will replace. It seems that when it was included in the 1987 regulations it was a repeat of the provisions in the Food Act 1984. That Act didn't cover materials and articles in contact with food. However, the provision does not exist in the current Food Safety Act which replaced the 1984 Food Act.
Implementing Commission Directive 2004/14/EC amending rules (EC Directives 93/10/EEC and 93/111/EC) for regenerated cellulose film (RCF)
The FSA are not asking for comments on the provisions in the proposed regulations that implement Commission Directive 2004/14/EC. These were the subject of an earlier consultation ( 18 June 2004 ).
Re-enacting Council Directive 78/142/EEC and Commission Directives 80/766/EEC and 81/432/EEC
The provisions in these proposals on vinyl chloride monomer are a straightforward re-enactment of those in the 1987 Regulations. Those provisions implement Council Directive 78/142/EEC and Commission Directives 80/766/EEC and 81/432/EEC that remain in force. We are not seeking your comments on these provisions.
Who will be effected by the new Regulations for England ?
The provisions in the England regulations that are being proposed will affect food authorities. However, the regulations provide only the power to enforce the European Regulations. The offences provided for in the proposed England regulations will affect those found guilty of an offence under the European Regulations and will allow the court to impose new penalties that are in line with those in the Food Safety Act 1990.
Proposed timetable for the New Regulations
Important dates in the introduction of the New Regulations are: