2009 No. 220
Food
The Contaminants in Food Regulations (Northern Ireland) 2009
Made 28th May 2009
Coming into operation 1st July 2009

The Department of Health, Social Services and Public Safety makes the following Regulations in exercise of the powers conferred by Articles 15(1)(a), (e) and (f), 16(2), 25(1)(a) and (3), and 47(2) of the Food Safety (Northern Ireland) Order 1991, as read with paragraph 1A of Schedule 2 to the European Communities Act 1972.
Formerly the Department of Health and Social Services; see S.I. 1999/283 (N.I.I) Article 3(6)
S.I. 1991/762 (N.I.7) as amended by S.I. 1996/1663 (N.I.12), paragraphs 26 to 42 of Schedule 5 and Schedule 6 to the Food Standards Act 1999 c.28 and S.R. 2004 Nos. 482 and 505
1972 c.68; paragraph 1A of Schedule 2 was inserted by section 28 of the Legislative and Regulatory Reform Act 2006 (2006 c.51)
These Regulations make provision for a purpose mentioned in section 2(2) of the European Communities Act 1972 and it appears to the Department of Health, Social Services and Public Safety that it is expedient for references to the Annex to the Community instrument as specified in regulation 2(4) to be construed as references to that Annex as it may be amended from time to time.
In accordance with Article 47(3A) of that Order, it has had regard to relevant advice given by the Food Standards Agency.
As required by Article 9 of Regulation (EC) No. 178/2002 of the European Parliament and of the Council laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety, there has been open and transparent public consultation during the preparation and evaluation of these Regulations.
OJNo. L31, 1.2.2002, p.1, as last amended by Commission Regulation (EC) No. 202/2008 amending Regulation (EC) No. 178/2002 of the European Parliament and of the Council as regards the number and names of the Scientific Panels of the European Food Safety Authority (OJNo. L60, 5.3.2008, p.17)

1 Citation and commencement
These Regulations may be cited as the Contaminants in Food Regulations (Northern Ireland) 2009 and come into operation on 1st July 2009.

2 Interpretation
1 In these Regulations —
“the Commission Regulation” means Commission Regulation (EC) No. 1881/2006 setting maximum levels for certain contaminants in foodstuffs as amended at the date of making of the Contaminants in Food Regulations (Northern Ireland) 2009;
“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;
“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;
“the Order” means the Food Safety (Northern Ireland) Order 1991.
OJNo. L364, 20.12.2006, p.5; this Regulation has been amended by Commission Regulations (EC) No. 1126/2007 (OJNo. L255, 29.9.2007, p.14), 565/2008 (OJNo. L160, 19.6.2008, p.20) and 629/2008 (OJNo. L173, 3.7.2008, p.6)
OJNo. L173, 3.7.2008, p.6
OJNo. L40, 11.2.2009, p.7
2 Any other expression used in these Regulations and in the Commission Regulation or in Commission Regulation 124/2009 has the same meaning in these Regulations as it bears in those Regulations.
3 Any reference to a numbered Article is a reference to the Article so numbered in the Commission Regulation.
4 Any reference to the Annex is a reference to the Annex to the Commission Regulation as that Annex may be amended from time to time, and any reference to the Commission Regulation is to be construed accordingly.
5 The Interpretation Act (Northern Ireland) 1954 shall apply to these regulations as it applies to an Act of the Assembly.
1954 c.33

3 Offences and penalties
1 Subject to the transitional arrangements contained in Article 11 and those in Article 2 of Commission Regulation 629/2008, a person who contravenes or fails to comply with any of the Community provisions specified in paragraph (2) is guilty of an offence.
2 The provisions mentioned in paragraph (1) are —
(a) Article 1(1), (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, nuts, dried fruit and maize, with Article 4;
(b) Article 3 (prohibitions on use, mixing and detoxification);
(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.

4 Enforcement and competent authorities
1 It shall be the duty of each district council within its district to execute and enforce —
(a) these Regulations;
(b) the Commission Regulation; 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) (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.

5 Application of various Articles of the Food Safety (Northern Ireland) Order 1991
1 The following provisions of the Order shall apply for the purposes of these Regulations with the modification that any reference in those provisions to the Order or Part thereof shall 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), as it applies for the purpose of Article 13 or 14;
(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) shall apply 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) 2009 (“the Community 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 Community 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) 2009 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 Community 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.

6 Consequential amendment
In the Food Safety (Sampling and Qualifications) Regulations (Northern Ireland) 1991, in Schedule 1 (provisions to which those Regulations do not apply) for the title and reference of the Contaminants in Food Regulations (Northern Ireland) 1997 substitute the title and reference of the Contaminants in Food Regulations (Northern Ireland) 2009.
S.R. 1991 No. 198
S.R 1997 No. 338

7 Revocations
The Contaminants in Food Regulations (Northern Ireland) 2007 and the Contaminants in Food (Amendment) Regulations (Northern Ireland) 2007 are revoked.
S.R. 2007 No. 66
S.R. 2007 No. 443
Sealed with the Official Seal of the Department of Health, Social Services and Public Safety on 28th May 2009.
Michael McBride A senior officer of the Department of Health, Social Services and Public Safety

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) 2007 (S.R. 2007 No. 66 as amended) (“the 2007 Regulations”). They make provision for the execution and enforcement of Commission Regulation (EC) No. 1881/2006 setting maximum levels for contaminants in foodstuffs (OJNo. L364, 20.12.2006, p.5) (“the Commission Regulation”).
The Commission Regulation, which consolidated and made further amendments to the provisions formerly contained in Commission Regulation (EC) No. 466/2001, was recently amended by —
(a) Commission Regulation (EC) No. 565/2008 (OJNo. L160, 19.6.2008, p.20), which concerns maximum levels for dioxins and PCBs in fish liver; and
(b) Commission Regulation (EC) No. 629/2008 (OJNo. L173, 3.7.2008, p.6), which concerns maximum permitted levels for certain heavy metals.
These Regulations also provide for the execution and enforcement of Commission Regulation (EC) No. 124/2009 (OJNo. 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 Community 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 (regulation 6), the effect being to disapply the sampling and analysis provisions of those Regulations only to the extent that those matters are regulated by the Community instruments mentioned in paragraph (a) to (f) below.
The Commission Regulation specifies the Community 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 Directive 2001/22/EC laying down the sampling methods and the methods of analysis for the official control of the levels of lead, cadmium, mercury and 3-MCPD in foodstuffs (OJNo. L77, 16.3.2001, p.14), as corrected by Commission Decision 2001/873/EC (OJNo. L325, 8.12.2001, p.34), and as amended by Commission Directive 2005/4/EC (OJNo. L19, 21.1.2005, p.50);
(b) Commission Directive 2004/16/EC laying down the sampling methods and the methods of analysis for the official control of the levels of tin in canned foods (OJ No. L42, 13.2.2004, p.16);
(c) Commission Directive 2005/10/EC laying down the sampling methods and the methods of analysis for the official control of the levels of benzo(a)pyrene in foodstuffs (OJNo. L34, 8.2.2005, p.15);
(d) 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 (OJNo. L70, 9.3.2006, p.12);
(e) Commission Regulation (EC) No. 1882/2006 laying down methods of sampling and analysis for the official control of levels of nitrates in certain foodstuffs (OJNo. L364, 20.12.2006, p.25);
(f) 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 (OJNo. L364, 20.12.2006, p.32).