A Guide to the Food Safety Act 1990 PDF
Preview A Guide to the Food Safety Act 1990
Managing Editor Shaun W Thorpe LLB Guide Editor David Hallam LLB 11 Butterworths Law of Food and Drugs A Guide to the Food Safety Act 1990 Editor A. A. Painter, FBIM, MITSA, ACI Arb, Trading Standards and Consumer Protection Consultant Consulting Editor Brian Harvey, MA, LLM (Cantab), Solicitor, Professor of Property Law, University of Birmingham London Butterworths 1990 United Kingdom: Butterworth & Co (Publishers) Ltd, 88 Kingsway, London, WC2B 6AB, and 4 Hill Street, Edinburgh, EH2 3JZ Australia: Butterworths Pty Ltd, Sydney, Melbourne, Brisbane, Adelaide, Perth, Canberra and Hobart Canada: Butterworths Canada Ltd, Toronto and Vancouver Ireland: Butterworth (Ireland) Ltd, Dublin Malaysia: Malayan Law Journal Sdn Bhd, Kuala Lumpur New Zealand: Butterworths of New Zealand Ltd, Wellington and Auckland Puerto Rico: Equity de Puerto Rico Ine, Hato Rey Singapore: Malayan Law Journal Pte Ltd, Singapore United States of America: Butterworth Legal Publishers, Austin Texas; Boston Massachusetts; Clearwater Florida (D & S Publishers); Orford New Hampshire (Equity Publishing); St Paul Minnesota; and Seattle Washington All rights reserved. No part of this publication may be reproduced in any material form (including photocopying or storing it in any medium by electronic means and whether or not transiently or incidentally to some other use of this publication) without the written permission of the copyright owner except in accordance with the provisions of the Copyright, Designs and Patents Act 1988 or under the terms of a licence issued by the Copyright Licensing Agency Ltd, 33-34 Alfred Place, London, England WC1E 7DP. Applications for the copyright owner's written permission to reproduce any part of this publication should be addressed to the publisher. Warning: The doing of an unauthorised act in relation to a copyright work may result in both a civil claim for damages and criminal prosecution. © Butterworth & Co (Publishers) Ltd 1990 ISBN 0 406 32732 7 ISBN (Butterworths Law of Food and Drugs) 0 406 11610 5 Typeset, printed and bound in Great Britain by Thomson Litho Ltd, East Kilbride, Scotland. IV Preface This special publication contains the text of the Food Safety Act 1990 which received the Royal Assent on 29 June 1990. The provisions as to emergency control orders to be issued by the Ministers came into force on 29 June 1990. The remainder of the Act will be brought into force by a series of commencement orders. It is expected that the principal provisions of the Act will come into force on 1 January 1991 and the remaining provisions on I April 1991. During the period from the Royal Assent to the full implementation of the Food Safety Act 1990, the relevant provisions of the Food Act 1984 and the Food and Drugs (Scotland) Act 1956 will remain in force. The 1984 Act will therefore be maintained in Division B of Butterworths Law of Food and Drugs but will be replaced by the Food Safety Act 1990 once that Act is substantially in force. The annotations in this guide are concentrated on those matters which are either new or which are important for a full understanding of the new Act. When the Act is incorporated into the looseleaf volumes the annotations will be expanded to cover all relevant matters of interpretation and reference. During the period between the issue of this guide and the date of the Act coming fully into force a series of commencement orders and regulations on such matters as enforcement, registration and licensing of food premises and the training of food handlers will be made. They will be summarised in Butterworths Law of Food and Drugs as soon as possible. The editor would like to extend his special thanks to Professor Brian Harvey, MA, LLM, solicitor, for his assistance in the preparation of this guide. A. A. Painter II July 1990 VII Food Safety Act 1990 (1990 c 16) An Act to make new provision in place of the Food Act 1984 (except Parts HI and V), the Food and Drugs (Scotland) Act 1956 and certain other enactments relating to food; to amend Parts III and V of the said Act of 1984 and Part I of the Food and Environment Protection Act 1985; and for connected purposes. [29 June 1990] Introduction. This Act repeals and replaces the whole of the Food Act 1984 except for Parts III (Markets) and V (Sugar beet and cold storage). It also repeals the whole of the Food and Drugs (Scotland) Act 1956, the Milk and Dairies (Scotland) Act 1914, the Milk and Dairies (Amendment) Act 1922, the Milk Act 1934, the Milk (Special Designations) Act 1949, the Control of Food Premises (Scotland) Act 1977, and the Importation of Milk Act 1983. It also makes numerous consequential amendments to other statutes. The Act is misleadingly entitled in that it is not only concerned with food safety but also re-enacts the provisions of the 1956 and 1984 Acts as to composition, labelling and advertising and includes certain new provisions as to the implementation and enforcement of European Community food law. Although this Act retains certain major provisions of the 1984 and 1956 Acts which have proved to be effective over many years, it introduces a new regime of food law designed to control modern food manufacture and distribution practice. It is a highly innovative and imaginative statute of commendable conciseness and clarity. However, concern may be reasonably expressed about the very extensive enabling powers conferred on Ministers to make regulations and the powers conferred on authorised enforcement officers to issue improvement, prohibition and emergency prohibition notices. Such concern is compounded by the fact that the opportunity has not been taken to bring ail enforcement responsibilities within a single authority employing a multi-disciplinary team of officers. The Act consists of only 61 sections and 5 schedules. It is therefore much shorter than the Food Act 1984 with its 136 sections and 11 schedules. This brevity is accounted for by the fact that the 1990 Act does not include provisions as to markets and sugar beet; that the special provisions of the 1984 Act as to milk and dairies have not been re-enacted; and that many matters of detail relating to enforcement are to be dealt with by regulations. Application. The Act applies to England, Wales and Scotland. It will also apply to the Isles of Scilly subject to such exceptions and modifications as Ministers may by Order direct. Her Majesty may by Order in Council direct that any of the provisions of the Act shall extend to any of the Channel Islands with any exceptions and modifications as may be specified in the Order. Territorial waters of the United Kingdom adjacent to any part of Great Britain are treated as being situated in that part. The Act does not apply to Northern Ireland except for ss 5 (food authorities and authorised officers), 59(2) and (4) (application of s 23 of the Oil and Gas (Enterprise) Act 1982 to food safety legislation), 60(1) and paras 7, 29 and 30 of Sch 3 (amendments to Northern Ireland legislation). 1 Food Safety Act 1990 Commencement. Sections 13 (emergency control orders), 52 (contamination of food: emergency orders), 53 and para 2 of Sch 2 (amendments to the Food Act 1984 as to markets) came into force on the day the Act was passed, ie 29 June 1990. All other provisions of the Act will come into force on days to be appointed by the Ministers. Arrangement of Sections Part I Preliminary 1 Meaning of 'food' and other basic expressions. 2 Extended meaning of 'sale' etc 3 Presumptions that food intended for human consumption 4 Ministers having functions under Act 5 Food authorities and authorised officers 6 Enforcement of Act Part II Main Provisions Food safety 7 Rendering food injurious to health 8 Selling food not complying with food safety requirements 9 Inspection and seizure of suspected food 10 Improvement notices 11 Prohibition orders 12 Emergency prohibition notices and orders 13 Emergency control orders Consumer protection 14 Selling food not of the nature or substance or quality demanded 15 Falsely describing or presenting food Regulations 16 Food safety and consumer protection 17 Enforcement of Community provisions 18 Special provisions for particular foods etc 19 Registration and licensing of food premises Defences etc 20 Offences due to fault of another person 21 Defence of due diligence 22 Defence of publication in the course of business Miscellaneous and supplemental 23 Provision of food hygiene training 24 Provision of facilities for cleansing shellfish 25 Orders for facilitating the exercise of functions 26 Regulations and orders: supplementary provisions 2 Food Safety Act 1990 Commencement. Sections 13 (emergency control orders), 52 (contamination of food: emergency orders), 53 and para 2 of Sch 2 (amendments to the Food Act 1984 as to markets) came into force on the day the Act was passed, ie 29 June 1990. All other provisions of the Act will come into force on days to be appointed by the Ministers. Arrangement of Sections Part I Preliminary 1 Meaning of 'food' and other basic expressions. 2 Extended meaning of 'sale' etc 3 Presumptions that food intended for human consumption 4 Ministers having functions under Act 5 Food authorities and authorised officers 6 Enforcement of Act Part II Main Provisions Food safety 7 Rendering food injurious to health 8 Selling food not complying with food safety requirements 9 Inspection and seizure of suspected food 10 Improvement notices 11 Prohibition orders 12 Emergency prohibition notices and orders 13 Emergency control orders Consumer protection 14 Selling food not of the nature or substance or quality demanded 15 Falsely describing or presenting food Regulations 16 Food safety and consumer protection 17 Enforcement of Community provisions 18 Special provisions for particular foods etc 19 Registration and licensing of food premises Defences etc 20 Offences due to fault of another person 21 Defence of due diligence 22 Defence of publication in the course of business Miscellaneous and supplemental 23 Provision of food hygiene training 24 Provision of facilities for cleansing shellfish 25 Orders for facilitating the exercise of functions 26 Regulations and orders: supplementary provisions 2 Awangmt of Sections Part III Administration and Enforcement Administration 27 Appointment of public analysts 28 Provision of facilities for examinations Sampling and analyns etc 29 Procurement of samples 30 Analysis etc of samples 31 Regulation of sampling and analysis etc Powers of entry and obstruction etc 32 Powers of entry 33 Obstruction etc of officers Offences 34 Time limit for prosecutions 35 Punishment of offences 36 Offences by bodies corporate Appeals 37 Appeals to magistrates' court or sheriff 38 Appeals to Crown Court 39 Appeals against improvement notices Part IV Miscellaneous and Supplemental Powers of Ministers 40 Power to issue codes of practice 41 Power to require returns 42 Default powers Protective provisions 43 Continuance of registration or licence on death 44 Protection of officers acting in good faith Financial provisions 45 Regulations as to charges 46 Expenses of authorised officers and county councils 47 Remuneration of tribunal chairmen Instruments and documents 48 Regulations and orders 49 Form and authentication of documents 50 Service of documents Amendments of other Acts 51 Contamination of food: emergency orders 52 Markets, sugar beet and cold storage Supplemental 53 General interpretation 54 Application to Crown 55 Water supply: England and Wales 56 Water supply: Scotland 3 Food Safety Act 1990 57 Scilly Isles and Channel Islands 58 Territorial waters and the continental shelf 59 Amendments, transitional provisions, savings and repeals 60 Short title, commencement and extent Schedules: Schedule 1—Provisions of regulations under section 16(1) Schedule 2—Amendments of Parts III and V of 1984 Act Schedule 3—Minor and consequential amendments Schedule 4—Transitional provisions and savings Schedule 5—Repeals 4 Part I: Preliminary Parti Preliminary Introduction. This part of the Act lays down the foundations for the application of the Act by defining 'food' and other basic expressions such as 'food business', 'food source' and 'food premises'. Presumptions that food is intended for human consumption are continued and the Ministers having functions under the Act and food authorities are defined. Provision is made for the execution and enforcement of the Act. Section I extends the definition of 'food' to include water. All water sold as such, or used in the manufacture of food, is subject to the Act from the point at which control under the Water Act 1989 or the Water (Scotland) Act 1980 ceases to have effect. Section 2 extends the meaning of 'sale' to include the supply of food otherwise than by sale as in the Food Act 1984 and the Food and Drugs (Scotland) Act 1956 but food supplied by or on behalf of the Crown is now subject to the Act. Section 3 continues the presumption that food commonly used for human consumption and which is sold or offered, exposed or kept for sale is for human consumption until the contrary is proved. The presumption is extended to include articles or substances capable of being used in the composition or preparation of food. Section 4 provides that The Minister of Agriculture, Fisheries and Food and the Secretaries of State for Scotland, for health in England and for food and health in Wales are designated as 'the Ministers' for the purposes of this Act. Section 5 provides that for the purposes of this Act 'food authorities' are as respects each London Borough, district or non-metropolitan county, the council of that borough, district or county. The Common Council of the City of London and the appropriate treasurers of the Inner Temple or Middle Temple are similarly designated. In Scotland, the food authorities are the islands or district councils. Ministers are empowered to provide by Order that where any functions under the Act are exercisable concurrently such functions as they may decide shall be exercisable solely by one of the authorities concerned. 'Authorised officer' in relation to food authorities are persons, whether or not an officer of the authority, who are authorised by them in writing to act in matters arising under the Act. Ministers may make regulations as to the qualifications of such persons. Regulations or Orders under this Act are required to specify which of the food authorities, the Minister or the Ministers or, in the case of regulations, the Commissioners of Customs and Excise shall enforce or execute them. Section 6 imposes the duty of execution and enforcement of the Act on food authorities but the Act introduces the concept of an 'enforcement authority' to distinguish between food authorities generally and those with specific enforcement responsibilities. Every food authority is under a statutory duty to enforce and execute the Act within their area where that duty is not imposed on some other authority. An 'enforcement authority' is a food authority with such specified enforcement duties. Ministers may direct, in relation to cases of a particular description or a particular case, that the duties imposed on food authorities shall be discharged by the Ministers and not by those authorities. Regulations or Orders under this Act are required to specify which of the food authorities, the Minister or the Ministers or, in the case of regulations, the 5
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