FSA Consultation, 26 July 2005
Changes to English legislation are necessary to apply European Community measures on maximum levels for certain contaminants in foodstuffs. Parallel legislation will be made in Scotland, Wales and Northern Ireland. Responses are requested by: 20 October 2005
The key proposals are:
The Contaminants in Food ( England) Regulations 2004 (SI 2004 No. 3062) as amended will therefore be revoked and replaced to incorporate these changes.
Background and further information
European Commission Regulation (EC) 466/2001, which sets maximum limits for certain contaminants in foodstuffs, has applied across the European Union since April 2002. The aim of the Regulation is to keep contaminants at levels that are toxicologically acceptable and to exclude grossly contaminated food from entering the food chain. Maximum levels for lead, cadmium, mercury, dioxins, inorganic tin, aflatoxins, ochratoxin A, patulin, nitrate and 3-MCPD have already been set under this legislation.
In view of the requirement to protect public health by keeping contaminants at levels that are toxicologically acceptable, the European Commission investigates whether limits should be set for additional contaminants and also reviews the maximum limits for those contaminants currently in the legislation. As a result, the following Commission measures, which amend Commission Regulation 466/2001, have been adopted:
Stakeholders have been informally consulted on the possible implications of the Commission measures throughout negotiations and were informed when the measures were adopted and published in the European Commission’s Official Journal.
Although Commission Regulations are directly applicable in Member States from the date that they take effect, provisions must be made for their enforcement and enactment. The provisions laid down in Commission Directives must also be implemented by national legislation. The draft Contaminants in Food ( England) Regulations 2005 has been developed for this purpose. The draft Regulations will revoke and replace The Contaminants in Food ( England) Regulations 2004 (SI 2004 No 3062) as amended. Corresponding Regulations will be introduced separately in Scotland, Wales and Northern Ireland.
Under UK legislative procedures the views of interested parties are taken into consideration before such Regulations are introduced. Part of this consultation procedure includes two Regulatory Impact Assessments (RIAs) which explore the potential benefits or costs to public health and also assess the likely additional costs to industry, enforcement authorities and other organisations of complying with or enforcing the legislation.
Other significant changes to the previous Contaminants in Food ( England) Regulations 2004, as amended
Defence in relation to exports (formerly article 6)
Article 6 has now been omitted from the Regulations. Its provisions as from 1 January 2006 will be effected in England by a widely applicable provision inserted into the General Food Regulations 2004 by the Official Feed and Food Controls ( England) Regulations 2005 ('the OFFC SI'), which will implement Regulation (EC) 882/2004.
Re-export or destruction of food imported into England that does not comply with the Regulations (formerly article 8)
This has also been omitted. The ground it covers in respect of contaminated food will, as from 1 January 2006, be covered in relation to all non-compliant imported food by Regulation (EC) 882/2004, as administered and enforced in relation to products not of animal origin by articles 15 – 22 of Regulation 882/2004.
Secondary treatment of food imported into England that does not comply with the Regulations (formerly article 9)
This has been removed as any food to which article 4.3 in Regulation 466/2001 applies, should comply with the provisions of this article and as Regulation 466/2001 is directly applicable, no further provisions should be made in the SI. Alternatively, any products failing to meet with the provisions in article 4.3 and therefore the Regulation will be covered by the OFFC SI.
Transitional provisions (formerly articles 10 and 11)
The transitional provisions have been omitted in their entirety. It has been concluded that the transitional provisions in the various EC Regulations concerned are of direct effect and therefore should not be reproduced in the SI, although there is reference to them in the offences and penalties provisions in the draft SI.
Derogation of limits applicable to nitrate in spinach and lettuce
With respect to derogation applied to limits for nitrate in lettuce and spinach, negotiations are continuing with the Commission at present. It is possible that this issue will be resolved in the forthcoming months and stakeholders will be kept up-to-date via interested parties letters. In the interim, references to lettuce and spinach in respect of the derogation have been omitted/ square bracketed for the purpose of the draft SI.
Copies of the draft Regulations and the Commission legislation are attached at the foot of this page
During previous consultations on earlier versions of the draft Contaminants in Food Regulations, we have received comments from industry in particular, regarding the complexity of the legislation. European Community (EC) Regulations including their detailed technical annexes cannot lawfully be reproduced in UK Statutory Instruments (SI). As a result the need to read a domestic SI and the relevant Commission Regulation in tandem is an unavoidable consequence of ever-closer harmonisation. In the case of Directives, wording may be reproduced in a SI but on occasions, such as for the enforcement sampling and analysis Directives, a policy decision is taken to cross-refer to a Directive rather than copy out significant portions of it.
The Commission has indicated its intention to formally consolidate the various Commission Regulations setting maximum levels for certain contaminants in foodstuffs and a draft consolidated version is available from the EU website. In addition the Commission is moving away from Directives towards Regulations and a draft Regulation consolidating the methods for sampling and analysis for mycotoxins was discussed at the Commission Working Group with the view of implementing it by 1 July 2006. However, until these draft measures have been formally adopted, the current format of regulation 2 (Interpretation) in the draft Contaminants in Food ( England) Regulations 2005 must remain.
However, we are open to exploring ways of making the draft SI as user friendly as possible within the obvious and necessary legal constraints. We would therefore be grateful for comments and views in particular on regulation 5 (modification of section 29 of the Food Safety Act 1990). Specifically: