Citation and commencement

1. These Regulations may be cited as the Contaminants in Food Regulations (Northern Ireland) 2010 and come into operation on 20th October 2010.

Interpretation

2.-�(1) In these Regulations -�

-�Commission Regulation 1881/2006-� means Commission Regulation (EC) No. 1881/2006 setting maximum levels for certain contaminants in foodstuffs(5) as amended at the date of making these Regulations;

-�Commission Regulation 629/2008-� means Commission Regulation (EC) No. 629/2008 amending Regulation (EC) No 1881/2006 setting maximum levels for certain contaminants in foodstuffs(6);

-�Commission Regulation 124/2009-� means Commission Regulation (EC) No. 124/2009 setting maximum levels for the presence of coccidiostats or histomonostats in food resulting from the unavoidable carry-over of these substances in non-target feed(7);

-�Commission Regulation 165/2010-� means Commission Regulation (EU) No. 165/2010 amending Regulation (EC) No. 1881/2006 setting maximum levels for certain contaminants in foodstuffs as regards aflatoxins(8);

-�the Order-� means the Food Safety (Northern Ireland) Order 1991.

(2) Any other expression used in these Regulations and in Commission Regulation 1881/2006 or in Commission Regulation 124/2009 has the same meaning in these Regulations as it bears in the Commission Regulation concerned.

(3) Any reference to -�the Annex-� is a reference to the Annex to Commission Regulation 1881/2006 as that Annex may be amended from time to time, and any reference to that Regulation is to be construed accordingly.

(4) The Interpretation Act (Northern Ireland) 1954(9) shall apply to these regulations as it applies to an Act of the Assembly.

Offences and penalties

3.-�(1) Subject to the transitional arrangements contained in -�

(a)Article 11 of Commission Regulation 1881/2006;

(b)Article 2 of Commission Regulation 629/2008; or

(c)Article 2 of Commission Regulation 165/2010,

a person who contravenes or fails to comply with any of the EU provisions specified in paragraph (2) is guilty of an offence.

(2) The EU provisions are -�

(a)Article 1(1) of Commission Regulation 1881/2006 (prohibition on the placing on the market of foodstuffs containing contaminants in excess of prescribed limits contained in the Annex), as read with the Annex and, in the case of groundnuts, other oilseeds, tree nuts, dried fruit, rice and maize, with Article 4;

(b)Article 3 of Commission Regulation 1881/2006 (prohibitions on use, mixing and detoxification); and

(c)Article 1(1) of Commission Regulation 124/2009 (prohibitions on marketing or mixing foods containing coccidiostats or histomonstats at levels in excess of prescribed limits).

(3) Anyone convicted of an offence under paragraph (1) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

Enforcement and competent authorities

4.-�(1) It is the duty of each district council within its district to execute and enforce -�

(a)these Regulations;

(b)Commission Regulation 1881/2006; and

(c)Commission Regulation 124/2009, save for the requirement in paragraph 2 of Article 1(1) of that Regulation (requirement to investigate the reasons for a finding of a significant residue level below the maximum).

(2) The competent authority for the purposes of Article 2(2) of Commission Regulation 1881/2006 (justification by food business operators of concentration or dilution factors) is the district council having the duty to enforce under paragraph (1).

(3) The competent authority for the purposes of paragraph 2 of Article 1(1) of Commission Regulation 124/2009 (requirement to investigate the reasons for a finding of a significant residue level below the maximum) is the Department of Agriculture and Rural Development.

Application of various Articles of the Food Safety (Northern Ireland) Order 1991

5.-�(1) The following provisions of the Order apply for the purposes of these Regulations with the modification that any reference in those provisions to the Order or Part of it is to be construed as a reference to these Regulations -�

(a)Article 4 (presumptions that food intended for human consumption);

(b)Article 19 (offences due to fault of another person);

(c)Article 20 (defence of due diligence) with the modification that-�

(i)paragraphs (2) to (4) apply in relation to an offence under regulation 3 as they apply in relation to an offence under Article 13 or 14, and

(ii)in paragraph (4) the references to -�sale-� are deemed to include references to -�placing on the market-�;

(d)Article 30(8) (which relates to documentary evidence);

(e)Article 34(1) (obstruction etc. of officers);

(f)Article 34(2), with the modification that the reference to -�any such requirement as is mentioned in paragraph (1)(b)-� shall be deemed to be a reference to any such requirement as is mentioned in Article 34(1)(b) as applied by sub-�paragraph (e);

(g)Article 36(1) (punishment of offences), in so far as it relates to offences under Article 34(1) as applied by sub-�paragraph (e); and

(h)Article 36(2) and (3), in so far as it relates to offences under Article 34(2) as applied by sub-�paragraph (f).

(2) Subject to paragraph (3), Article 8 of the Order (inspection and seizure of suspected food) applies for the purposes of these Regulations as if it read as follows -�

-�8.-�(1) An authorised officer may at all reasonable times inspect any food intended for human consumption which has been placed on the market and paragraphs (2) to (7) shall apply where, on such an inspection, it appears to the authorised officer that the placing on the market of any food fails to comply with the requirements specified in regulation 3(2)(a) and (c) of the Contaminants in Food Regulations (Northern Ireland) 2010 (-�the EU requirements-�).

(2) The authorised officer may either -�

(a)give notice to the person in charge of the food that, until the notice is withdrawn, the food or any specified portion of it -�

(i)is not to be used for human consumption, and

(ii)either is not to be removed or is to be removed to a place at which there are facilities to carry out sampling in the manner required by law; or

(b)seize the food and remove it in order to have it dealt with by a justice of the peace.

(3) Where the authorised officer gives notice under paragraph (2)(a), that officer shall, as soon as is reasonably practicable and in any event before the expiration of 21 days from the date of notice, determine whether or not the food complies with the EU requirements and -�

(a)if satisfied that it does comply, shall forthwith withdraw the notice;

(b)if not so satisfied, shall seize the food and remove it in order to have it dealt with by a justice of the peace.

(4) Where an authorised officer seizes and removes food under paragraph (2)(b) or (3)(b), the officer shall inform the person in charge of the food of the intention to have it dealt with by a justice of the peace and any person who in connection with regulation 3(2)(a) or (c) of the Contaminants in Food Regulations (Northern Ireland) 2010 might be liable to a prosecution in respect of the food shall, if that person attends before the justice of the peace by whom the food falls to be dealt with, be entitled to be heard and to call witnesses.

(5) If it appears to a justice of the peace, on the basis of such evidence as the justice considers appropriate in the circumstances, that any food falling to be dealt with under this Article fails to comply with the EU requirements the justice shall condemn the food and order -�

(a)the food to be destroyed or to be so disposed of as to prevent it from being used for human consumption; and

(b)any expenses reasonably incurred in connection with the destruction or disposal to be defrayed by the owner of the food.

(6) If a notice under paragraph (2)(a) is withdrawn, or the justice of the peace by whom any food falls to be dealt with under this Article refuses to condemn it, the district council shall compensate the owner of the food for any depreciation in its value resulting from the action taken by the authorised officer.

(7) Any disputed question as to the right to or the amount of any compensation payable under paragraph (6) shall be determined by arbitration.

(8) Any person who knowingly contravenes the requirements of a notice under paragraph (2)(a) shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.-�.

(3) The expression -�authorised officer-� which is used in Article 8 of the Order so far as it applies for the purposes of these Regulations by virtue of paragraph (2), shall, for those purposes, mean any person, whether or not an officer of a district council, who is authorised by it in writing to act in matters arising under these Regulations.

Consequential amendment

6. In the Food Safety (Sampling and Qualifications) Regulations (Northern Ireland) 1991(10), in Schedule 1 (provisions to which those Regulations do not apply) for the title and reference of the Contaminants in Food Regulations (Northern Ireland) 2009(11) substitute the title and reference of the Contaminants in Food Regulations (Northern Ireland) 2010.

Revocations

7. The Contaminants in Food Regulations (Northern Ireland) 2009 are revoked.

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations revoke and re-enact with changes the Contaminants in Food Regulations (Northern Ireland) 2009 (S.R. 2009 No. 220). They make provision for the continuing execution and enforcement of Commission Regulation (EC) No. 1881/2006 setting maximum levels for contaminants in foodstuffs (OJ No. L364, 20.12.2006, p.5) (-�the Commission Regulation-�).

The Commission Regulation, which replaced with amendments the provisions formerly contained in Commission Regulation (EC) No. 466/2001, has recently been amended by Commission Regulation (EU) No. 165/2010 which concerns maximum levels for aflatoxins and the treatment of certain foods found to contain aflatoxins in excess of those levels (OJ No. L50, 27.2.2010, p8). The Commission Regulation has previously also been amended by -�

(a)Commission Regulation (EC) No. 1126/2007 (OJ No. L255, 29.9.2007, p.14), concerning maximum permitted levels for Fusarium toxins in maize and maize products;

(b)Commission Regulation (EC) No. 565/2008 (OJ No. L160, 19.6.2008, p.20), concerning maximum permitted levels for dioxins and PCBs in fish liver;

(c)Commission Regulation (EC) No. 629/2008 (OJ No. L173, 3.7.2008, p.6), concerning maximum permitted levels for certain heavy metals; and

(d)Commission Regulation (EU) No. 105/2010 (OJ No. L35, 6.2.2010, p.7), concerning maximum permitted levels for ochratoxin A.

These Regulations also provide for the execution and enforcement of Commission Regulation (EC) No. 124/2009 (OJ No. L40, 11.2.2009, p.7) (-�Regulation 124/2009-�), which concerns maximum permitted levels for certain feed additives that may, in specified circumstances, occur in food.

The Regulations -�

(a)provide that it is an offence, (except in certain cases relating to food placed on the market before a date given in specified EU legislation) -�

(i)to place on the market certain foods if they contain contaminants of any kind specified in the Commission Regulation or in Regulation 124/2009 at levels exceeding those specified,

(ii)to use food containing contaminants at levels in excess of those permitted by the Commission Regulation as ingredients in the production of certain foods,

(iii)to mix foods that do not comply with the maximum levels prescribed by the Commission Regulation or Regulation 124/2009 with foods which do comply,

(iv)to mix foods to which the Commission Regulation relates and which are intended for direct consumption or as food ingredients with foods to which the Commission Regulation relates and which are intended to be sorted or otherwise treated prior to consumption, or

(v)to detoxify by chemical treatment food containing mycotoxins in excess of the limits specified in the Commission Regulation (regulation 3);

(b)specify the enforcement authorities (regulation 4);

(c)provide for the application of specified provisions of the Food Safety (Northern Ireland) Order 1991 for the purposes of these Regulations (regulation 5);

(d)make a consequential amendment to the Food Safety (Sampling and Qualifications) Regulations (Northern Ireland) 1991, the effect being to disapply the sampling and analysis provisions of those Regulations only to the extent that those matters are regulated by the EU instruments mentioned in paragraph (a) to (d) below.

The Commission Regulation specifies the European Union methods of sampling and analysis that are required to be used for the official control of levels of the substances covered by it. Those methods are set out in -�

(a)Commission Regulation (EC) No. 401/2006 laying down the methods of sampling and analysis for the official control of the levels of mycotoxins in foodstuffs (OJ No. L70, 9.3.2006, p.12), as amended by Commission Regulation (EU) No 178/2010 (OJ No. L52, 3.3.2010, p.32);

(b)Commission Regulation (EC) No. 1882/2006 laying down methods of sampling and analysis for the official control of levels of nitrates in certain foodstuffs (OJ No. L364, 20.12.2006, p.25);

(c)Commission Regulation (EC) No. 1883/2006 laying down methods of sampling and analysis for the official control of levels of dioxins and dioxin-like PCBs in certain foodstuffs (OJ No. L364, 20.12.2006, p.32);

(d)Commission Regulation (EC) No. 333/2007 laying down the methods of sampling and analysis for the official control of the levels of lead, cadmium, mercury, inorganic tin, 3-MCPD and benza(a)pyrene in foodstuffs (OJ No. L88, 29.3.2007, p29).