FSA Consultation Letter, 10 April 2006

CONTAMINANTS - Draft Contaminants in Food (England) Regulations 2006

Changes to English legislation are necessary to apply revised 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: 19 May 2006

A copy of the draft Statutory Instrument is available: Draft Contaminants in Food ( England ) Regulations 2006

Consultation details

The key proposals are:

• to make provision for the enforcement and enactment of Commission Regulation (EC) No 466/2001 as amended by Commission Regulation 856/2005 (setting maximum levels for Fusarium toxins) and Commission Regulation 199/2006 (setting maximum levels for dioxins and dioxin-like PCBs)
• to enact the provisions set out in Commission Regulation (EC) No 401/2006 laying down the methods for sampling and analysis for the official control of the levels of mycotoxins in foodstuffs
• to revoke and replace the Contaminants in Food ( England ) Regulations 2005 (SI 2005 No 3251)
• to revoke Emergency Control Regulations implementing Commission Decisions imposing special conditions on imports of various foods

The purpose of the draft Contaminants in Food ( England ) Regulations 2006 is to provide enforcement authorities with the necessary Statutory Instrument (SI) to ensure compliance with European Community (EC) measures (Commission Regulation 466/2001 as amended) setting maximum levels for certain contaminants in foodstuffs. 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 draft Contaminants in Food ( England ) Regulations 2006 has been developed for this purpose. The draft Regulations will revoke and replace the current Regulations (the Contaminants in Food ( England ) Regulations 2005 (SI 2005 No 3251)), which came into force on 1 January 2006 . Corresponding Regulations will apply in Scotland , Wales and Northern Ireland .

Under UK legislative procedures the views of interested parties are taken into consideration before such Regulations are introduced. I would like to take this opportunity to draw enforcement authorities' attention in particular to a significant change to the new draft Regulations in respect to the procurement and analysis of samples taken for official control purposes. Currently, the Contaminants in Food ( England ) Regulations 2005 include references to the criteria and requirements of the various enforcement sampling and analysis Directives. However, the Legal view is that these should not be included in the SI and all references relating to these provisions are now mentioned in the Explanatory Note only. As a result these draft Regulations, unlike in previous consultations, include a draft Explanatory Note.

We invite comments and views from all stakeholders and in particular enforcement authorities on these changes.

As part of the consultation procedure this package also includes two Regulatory Impact Assessments (RIAs). The RIAs explore the potential benefits or costs to consumers' health and also assess the likely additional costs to enforcement authorities, industry and other organisations of enforcing or complying with the legislation. They also provide the background to the aims of the EC measures and the development of the new Commission Regulations that have necessitated the development of a new SI. Stakeholders have been informally consulted on the possible implications of the EC measures throughout the negotiations and have been kept informed when the Commission Regulations were adopted and published in the European Commission's Official Journal.

In summary, the aim of Commission Regulation 466/2001, which has applied across the European Union (EU) since April 2002, is to provide a high level of consumer health protection by keeping certain contaminants at levels that are toxicologically acceptable and excluding grossly contaminated food from entering the food chain. Maximum levels for lead, cadmium, mercury, dioxins, inorganic tin, PAHs, aflatoxins, ochratoxin A, patulin, nitrate and 3-MCPD have already been set under this legislation.

In view of the requirement to protect consumers' health by keeping contaminants at levels that are toxicologically acceptable, the European Commission investigates whether limits should be set for additional contaminants and reviews the maximum limits for those contaminants currently in the legislation and the foods that are subject to control. As a result, the following Commission measures amending Commission Regulation 466/2001 have been adopted:

• Commission Regulation (EC) No 856/2005 of 6 June 2005 , setting maximum levels for Fusarium toxins in certain foodstuffs. The maximum levels will apply from 1 July 2006
• Commission Regulation (EC) No 199/2006 of 3 February 2006 , setting maximum levels for the sum of dioxins and dioxin-like PCBs in a range of foodstuffs. The maximum levels will apply from 4 November 2006

In addition, the sampling methods and performance criteria for the methods of analysis to be used for the official control of all mycotoxins have been brought together in a single Commission Regulation in order to make them easier to apply. The following Commission measure has therefore been adopted:

• Commission Regulation (EC) No 401/2006 of 23 February 2006, laying down the sampling methods and the methods of analysis for the official control of the levels of aflatoxins, ochratoxin A, patulin and Fusarium toxins in foodstuffs. The new Regulation, which will apply from 1 July 2006, will repeal the existing Commission Directives 98/53/EC as amended; 2002/26/EC as amended; 2003/78/EC and 2005/38/EC

Copies of the relevant European legislation are available from the Commission website.

Lastly, the following Commission Decisions relating to special import conditions on certain foodstuffs imported from certain third countries due to contamination risks of these products with aflatoxins will be consolidated:

• Commission Decision 2002/79/EC of 4 February 2002 imposing special conditions on the import of peanuts and certain products derived from peanuts originating in or consigned from China as amended. This is implemented in England by SI 2002 ENGLAND (no. 2350) The Food (Peanuts from China ) (Emergency Control) ( England ) (No. 2) Regulations 2002, as amended.
• Commission Decision 2002/80/EC of 4 February 2002 imposing special conditions on the import of figs, hazelnuts and pistachios and certain products derived thereof originating in or consigned from Turkey as amended. This is implemented in England by SI 2002 ENGLAND (No. 2351) The Food (Figs, Hazelnuts and Pistachios from Turkey ) (Emergency Controls) ( England ) (No. 2) Regulations 2002, as amended.
• Commission Decision 2005/85/EC of 26 January 2005 imposing special conditions on the import of pistachios and certain products derived from pistachios originating in or consigned from Iran as amended. This is implemented in England by SI 2003 ENGLAND (No. 1956) Food (Pistachios from Iran ) (Emergency Control) ( England ) Regulations 2003, as amended.
• Commission Decision 2000/49/EC of 6 December 2000 repealing decision 1999/356/EC and imposing special conditions on the import of peanuts and certain products derived from peanuts originating in or consigned from Egypt as amended. This is implemented in England by SI 2003 ENGLAND (No. 2074) Food (Peanuts from Egypt ) (Emergency Control) ( England ) Regulations 2003, as amended.
• Commission Decision 2003/493/EC of 4 July 2003 imposing special conditions on the import of Brazil nuts in shell originating in or consigned from Brazil as amended. This is implemented in England by SI 2003 ENGLAND (No. 1722) The Food (Brazil Nuts) (Emergency Control) (England) Regulations 2003, as amended.

The consolidated Commission Decision will enter into force on 1 October 2006 and will be declared under regulation 33 of The Official Feed and Food Control ( England ) Regulations 2006 (SI 2006/15). Therefore no new SIs will be required and the current SIs listed above will therefore be revoked in the (draft) Contaminants in Food (England) Regulations 2006 from this date.