Food Law News - UK - 2005
FSA Consultation letter, 31 March 2005
ENFORCEMENT - Draft Official Feed and Food Controls ( England ) Regulations 2005
The FSA are seeking comments on the draft Official Feed and Food Controls ( England ) Regulations 2005. Responses are requested by: 30 June 2005
Consultation details
The Statutory Instrument (SI) will apply, in England , certain elements of Regulation (EC) 882/2004 on official controls. The principal elements of the SI include:
- legal powers for the authorities with responsibility for organising and undertaking enforcement controls in respect of feed and food law, to enable them to monitor national enforcement activity
- a legal basis for the enforcement of new rules on official checks of feed and food of non-animal origin imported from outside the Community
Views are also sought on a draft summary Guidance to importers on the provisions that will affect them. Finally, your views are sought on Guidance Notes on the feed and food elements of EU Regulation 882/2004.
Background
EU Regulation 882/2004 on official controls - Regulation (EC) No 882/2004 of the European Parliament and of the Council on official controls performed to ensure the verification of compliance with feed and food law, animal health and welfare rules. Official Journal L191, 28.5.2004, 1-52
The proposed SI (Appendix 1) is required to apply certain elements of EU Regulation 882/2004 on official controls. The EU Regulation is about arrangements for enforcement of feed and food law requirements and animal health and animal welfare rules. It sets out the general approach that must be taken, and the principles that must be adopted, by the authorities in EU Member States that have responsibility for monitoring and enforcing this legislation (i.e. the ‘competent authorities' responsible for organising and undertaking ‘official controls'). It also establishes a framework for financing of official controls. In addition, it provides the legal basis for the European Commission to assess the effectiveness of national enforcement arrangements. Details of the requirements of the EU Regulation are set out in Annex A to the RIA which is enclosed at Appendix 2 of this letter. The text of the EU Regulation may be downloaded from the European Commission's website at:
http://europa.eu.int/servlet/portail/RenderServlet?search=DocNumber&lg=en&nb_docs=25&domain=Legislation&coll=&in_force=NO&an_doc=2004&nu_doc=882&type_doc=Regulation
Application of EU Regulation 882/2004 in the UK
The provisions of the EU Regulation apply from 1 January 2006 , except those on financing which apply from 1 January 2007 . Although the Regulation is directly applicable, action is needed to give it effect in the UK . Given the wide scope of the EU Regulation, responsibility for applying it is divided; the Food Standards Agency (FSA) has overall responsibility for the feed and food elements; and, the Department for Environment, Food and Rural Affairs (Defra) and the devolved Agriculture Departments, for the animal health and animal welfare aspects.
With regard to the feed and food elements, application is being taken forward in two phases to correspond to the 1 January 2006 and 1 January 2007 application dates. This consultation forms a part of the first phase of application. Additional coordinated consultation on other aspects of phase 1 application will take place during 2005. Details of this are included at Annex C to the RIA which is enclosed at Appendix 2 to this letter. The second phase of application will be concerned with the financing of enforcement inspections and other controls, and public consultation on the options for application (including options for financing of import controls) will take place in due course.
Details of this consultation
The Official Feed and Food Controls ( England ) Regulations 2005
The draft SI gives effect in England to those feed and food elements of EU Regulation 882/2004 applying from 1 January 2006 for which a domestic legal basis is needed. The provisions of the SI will enable the competent authorities to meet their obligations under the EU Regulation, principally with respect to monitoring and reporting of enforcement activity. Specific provisions are also included for the organisation and enforcement of new rules on checks (official controls) of feed and food of non-animal origin (non-POAO) imported from outside the Community. A summary explaining the principal provisions of the SI is enclosed at to this letter [See link below]
Separate SIs are being made in Scotland , Wales and Northern Ireland . These are subject to separate consultation exercises in those countries.
Comments on any aspect of the SI are welcome. In particular, however, we should be grateful for you views on the following points:
- Regulation 3 on competent authorities – Both the FSA and Defra have responsibility at central level for official controls. It is, therefore, proposed that a single SI be introduced to apply all the feed and food elements of EU Regulation 882/2004 rather than having an Agency SI and a separate Defra SI. The only exception to this is in the areas of medicated feed and zootechnical additives. In these cases, Defra has been designated as the competent authority for EU Regulation 882/2004 in the Draft Veterinary Medicines Regulations 2005. These draft Regulations are the subject of a separate consultation. Details are available on the website of the Veterinary Medicines Directorate at: http://www.vmd.gov.uk/
- Regulations 4 and 5 on exchanging and obtaining information – These provide a legal basis for the competent authorities to share information and to obtain information and data from private bodies involved in enforcement activities. This is required in order to fulfil obligations in EU Regulation 882/2004 such as on monitoring and reporting on enforcement activity.
- Regulation 7 on amending the Food Standards Act 1999 – This extends to all areas of feed and food law (as defined for the purposes of EU Regulation 882/2004), the FSA's existing function to monitor and audit the performance of the relevant enforcement authorities. As drafted, this presently includes areas of feed and food law for which Defra is the competent authority and/or is responsible for enforcing the legislation. The intention is that these Defra areas will be identified in the revised SI as exceptions to the Agency's function and agreement on responsibility for audit will be reached between the two Departments. The proposed amendment is in the individual territorial SIs but because the Act itself applies UK-wide, consideration is being given to a UK-wide amendment.
- Regulation 8 on rights of appeal in relation to approval of feed and food business establishments – The requirements for businesses to be approved are included in the new EU Feed Hygiene and EU Food Hygiene legislation. The right of appeal is included in this draft SI rather than the SIs applying the feed and food hygiene legislation (currently only in draft form) because the procedures that the competent authority should follow for approving establishments are set out in EU Regulation 882/2004. The alternative which is being considered is to include them in the Sis implementing the feed and food hygiene legislation.
- Regulation 23 on suspension of designated points of entry – This provides powers to the Agency and Defra to suspend the designation of a point of entry that deals with ‘specified products' (‘high risk' feed and food of non-animal origin). This is believed necessary to ensure that public and animal health is safeguarded.
- Regulations 24 to 27 relating to ‘specified products' – These measures will give effect to the provisions on ‘high risk' non-POAO feed and food set out in Regulation 882/2004. Such ‘high risk' products are to be identified at EU level by means of implementing rules.
- Regulation 33 on serious risk to animal and public health – This provision is proposed as a mechanism of ensuring that where there is a serious risk to animal or public health, control measures may be put in place rapidly. In particular, it can be used to ensure that Emergency Decisions made at EU level may be implemented in England without delay.
- Regulation 34 on liability for charges – This is included to provide a mechanism for charging where: a) fees for imports controls for ‘specified products' are set in Community legislation (there is not yet any agreement on this but the provision anticipates fees being set); and, b) the enforcement authority incurs costs in respect of actions taken in the case of non-compliance (or suspicion of non-compliance), e.g. costs of detention or destruction of feed or food.
- Regulation 41 on amending the General Food Regulations 2004 – It is proposed that the draft SI is used as a means of amending the General Food Regulations 2004 such that they implement Article 12 of the EU General Food Law Regulation (178/2002) which sets out the conditions of export of food to third countries. The amendment provides an associated defence for businesses for products that were sold domestically but were intended for export.
Draft FSA Guidance Notes for enforcement authorities on the feed and food elements of EU Regulation 882/2004
Draft Guidance Notes on the feed and food elements of the EU Regulation have been prepared in Question and Answer format – see Appendix 5. The scope of the Notes is restricted to those aspects of the EU Regulation relating to official controls in respect of feed law and food law. They do not relate to the animal health and animal welfare elements for which Defra and the Agriculture Departments in the devolved countries have responsibility. As the EU Regulation places obligations on those authorities responsible for monitoring and enforcing feed and food law, the Guidance Notes are aimed primarily at these authorities. However, the Notes may also provide useful information for the feed and food industries, and for consumers.
Your comments on any aspect of the Guidance Notes are welcome but we would be particularly grateful for views from enforcement stakeholders on the points dealt with at:
- Question 21 on the audit/inspection of ‘control bodies' by the UK Accreditation Service; and
- Question 48 on the FSA taking on the role as a single liaison body to deal with enquiries for administrative assistance and co-operation with other Member States and with the Commission.
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