The Food Hygiene (England) Regulations 2005

Regulation 2(1)

SCHEDULE 1DEFINITIONS OF COMMUNITY LEGISLATION

• “Regulation 178/2002” means 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(1) as last amended by Regulation (EC) No. 1642/2003 of the European Parliament and of the Council amending Regulation (EC) No. 178/2002 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(2);

• “Regulation 852/2004” means Regulation (EC) No. 852/2004 of the European Parliament and of the Council on the hygiene of foodstuffs(3);

• “Regulation 853/2004” means Regulation (EC) No. 853/2004 of the European Parliament and of the Council laying down specific hygiene rules for food of animal origin(4) as read with Directive 2004/41;

• “Regulation 854/2004” means Regulation (EC) No. 854/2004 of the European Parliament and of the Council laying down specific rules for the organisation of official controls on products of animal origin intended for human consumption(5) as amended by Regulation (EC) No. 882/2004 of the European Parliament and of the Council on official controls performed to ensure the verification of compliance with feed and food law, animal health and animal welfare rules(6) and as read with Directive 2004/41; and

• “Directive 2004/41” means Directive 2004/41/EC of the European Parliament and of the Council repealing certain directives concerning food hygiene and health conditions for the production and placing on the market of certain products of animal origin intended for human consumption and amending Council Directives 89/662/EEC and 92/118/EEC and Council Decision 95/408/EC(7).

Regulations 2(1) and 17

SCHEDULE 2SPECIFIED COMMUNITY PROVISIONS

Regulation 29

SCHEDULE 3BULK TRANSPORT IN SEA–GOING VESSELS OF LIQUID OILS OR FATS AND THE BULK TRANSPORT BY SEA OF RAW SUGAR

Offence

1.  A person who contravenes or fails to comply with any of the requirements of this Schedule shall be guilty of an offence.

Liquid oils or fats

2.—(1) The bulk transport in sea–going vessels of liquid oils or fats which are to be processed, and which are intended for or likely to be used for human consumption, is permitted in tanks that are not exclusively reserved for the transport of foodstuffs, subject to the following conditions —

(a)where the oil or fat is transported in a stainless steel tank, or tank lined with epoxy resin or technical equivalent, the immediately previous cargo transported in the tank shall have been a foodstuff or a cargo from the list of acceptable previous cargoes for liquid oils or fats; and

(b)where the oil or fat is transported in a tank of materials other than those specified in sub–paragraph (a), the three previous cargoes transported in the tanks shall have been foodstuffs or from the list of acceptable previous cargoes for liquid oils or fats.

(2) For the purposes of this paragraph, “list of acceptable previous cargoes for liquid oils or fats” means the list set out in the Annex to Commission Directive 96/3/EC.

3.  The bulk transport in sea–going vessels of liquid oils or fats which are not to be further processed, and which are intended for or are likely to be used for human consumption, is permitted in tanks that are not exclusively reserved for the transport of foodstuffs, subject to the following conditions —

(a)the tank shall be of stainless steel or lined with epoxy resin or technical equivalent; and

(b)the three previous cargoes transported in the tank shall have been foodstuffs.

4.  The captain of a sea–going vessel transporting, in tanks, bulk liquid oils or fats intended for or likely to be used for human consumption shall keep accurate documentary evidence relating to the three previous cargoes carried in the tanks concerned, and the effectiveness of the cleaning process applied between those cargoes.

5.  Where the cargo has been trans–shipped, in addition to the documentary evidence required by virtue of paragraph 4, the captain of the receiving vessel shall keep accurate documentary evidence that the transport of the bulk liquid oil or fat complied with the provisions of paragraph 2 or 3 during previous shipment and of the effectiveness of the cleaning process used between those cargoes on the vessel from which they were trans–shipped.

6.  Upon request, the captain of the vessel shall provide the enforcement authority with the documentary evidence described in paragraphs 4 and 5.

Raw sugar

7.  The bulk transport by sea of raw sugar which is not intended for use as food or as a food ingredient without a full and effective refining process is permitted in receptacles, containers or tankers that are not exclusively used for the transport of foodstuffs.

8.  The receptacles, containers or tankers referred to in paragraph 7 shall be subject to the following conditions —

(a)prior to loading the raw sugar, the receptacle, container or tanker shall be effectively cleaned to remove residues of the previous cargo and other soiling and inspected to establish that such residues have been removed effectively; and

(b)the immediate previous cargo prior to the raw sugar shall not have been a bulk liquid.

9.  A food business operator who is responsible for the transport of raw sugar by sea under paragraph 7 shall keep documentary evidence, accurately describing in detail the immediate previous cargo carried in the receptacle, container or tanker concerned, and the type and effectiveness of the cleaning process applied prior to the transport of the raw sugar.

10.  The documentary evidence shall accompany the consignment of raw sugar during all stages of transport to the refinery and a copy shall be retained by the refinery. The documentary evidence shall be marked as follows in a clearly visible and indelible fashion, in one or more Community languages: “This product must be refined before being used for human consumption”.

11.  On request, a food business operator responsible for the transport of the raw sugar or the refining process shall provide the enforcement authority with the documentary evidence referred to in paragraphs 9 and 10.

12.  Raw sugar which has been transported by sea in receptacles, containers or tankers which are not exclusively reserved for the transport of foodstuffs shall be subjected to a full and effective refining process before being considered suitable for use as food or as a food ingredient.

13.  In fulfilling his obligations under Article 5(1) of Regulation 852/2004 (hazard analysis and critical control points) in relation to the bulk transport of raw sugar by sea under paragraph 7, a food business operator who is responsible for the transport or refining of raw sugar shall —

(a)consider the cleaning process undertaken prior to the loading of the sugar for transport by sea to be a critical control point as referred to in Article 5(2)(b) of Regulation 852/2004; and

(b)take into account the nature of the previous cargo which has been transported in any receptacle, container or tanker used for the transport of the sugar.

Interpretation

14.—(1) For the purposes of this Schedule any words or expressions used both in this Schedule and in Commission Directive 96/3/EC or Commission Directive 98/28/EC granting a derogation from certain provisions of Directive 93/43/EEC on the hygiene of foodstuffs as regards the transport by sea of bulk raw sugar(10) shall bear the same meanings as they respectively have in those Directives.

(2) In this Schedule, “Commission Directive 96/3/EC” means Commission Directive 96/3/EC granting a derogation from certain provisions of Council Directive 93/43/EEC on the hygiene of foodstuffs as regards the transport of bulk liquid oils and fats by sea(11) as amended by Commission Directive 2004/4/EC amending Directive 96/3/EC granting a derogation from certain provisions of Council Directive 93/43/EEC on the hygiene of foodstuffs as regards the transport of bulk liquid oils and fats by sea(12).

Regulation 30

SCHEDULE 4TEMPERATURE CONTROL REQUIREMENTS

Scope

1.  This Schedule does not apply in relation to —

(a)any food business operation to which Regulation 853/2004 applies; or

(b)any food business operation carried out on a ship or aircraft.

Chill holding requirements

2.—(1) Subject to sub–paragraph (2) and paragraph 3, any person who keeps any food —

(a)which is likely to support the growth of pathogenic micro–organisms or the formation of toxins; and

(b)with respect to which any commercial operation is being carried out,

at or in food premises at a temperature above 8°C shall be guilty of an offence.

(2) Sub–paragraph (1) shall not apply in relation to any food which, as part of a mail order transaction, is being conveyed to the final consumer.

(3) Subject to paragraph 3, no person shall supply by mail order any food which —

(a)is likely to support the growth of pathogenic micro-organisms or the formation of toxins; and

(b)is being or has been conveyed by post or by a private or common carrier to the final consumer,

at a temperature which has given rise to or is likely to give rise to a risk to health.

General exemptions from the chill holding requirements

3.  Sub–paragraphs (1) and (3) of paragraph 2 shall not apply in relation to —

(a)food which —

(i)has been cooked or reheated,

(ii)is for service or on display for sale, and

(iii)needs to be kept at or above 63°C in order to control the growth of pathogenic micro–organisms or the formation of toxins;

(b)food which, for the duration of its shelf life may be kept at ambient temperatures with no risk to health;

(c)food which is being or has been subjected to a process such as dehydration or canning intended to prevent the growth of pathogenic micro–organisms at ambient temperatures, but not where —

(i)after or by virtue of that process the food was contained in a hermetically sealed container, and

(ii)that container has been opened;

(d)food which must be ripened or matured at ambient temperatures, but not when the process of ripening or maturation is completed;

(e)raw food intended for further processing (including cooking) before human consumption, but only if that processing, if undertaken correctly, will render that food fit for human consumption;

(f)food to which Council Regulation 1906/90 applies; and

(g)food to which Council Regulation 1907/90 applies.

Upward variation of the 8°C temperature by manufacturers etc.

4.—(1) In any proceedings for an offence consisting of a contravention of sub–paragraph (1) of paragraph 2, it shall be a defence for the accused to prove that —

(a)a food business responsible for manufacturing, preparing or processing the food, including, where relevant, the accused, has recommended that it is kept —

(i)at or below a specified temperature between 8°C and ambient temperatures, and

(ii)for a period not exceeding a specified shelf life;

(b)that recommendation has, unless the accused is that food business, been communicated to the accused either by means of a label on the packaging of the food or by means of some other appropriate form of written instruction;

(c)the food was not kept by the accused at a temperature above the specified temperature; and

(d)at the time of the commission of the alleged offence, the specified shelf life had not been exceeded.

(2) A food business responsible for manufacturing, preparing or processing food shall not recommend that any food is kept —

(a)at or below a specified temperature between 8°C and ambient temperatures; and

(b)for a period not exceeding a specified shelf life,

unless that recommendation is supported by a well–founded scientific assessment of the safety of the food at the specified temperature.

Chill holding tolerance periods

5.—(1) In any proceedings for an offence consisting of a contravention of sub–paragraph (1) of paragraph 2, it shall be a defence for the accused to prove that the food —

(a)was for service or on display for sale;

(b)had not previously been kept for service or on display for sale at a temperature above 8°C or, where a recommendation has been made pursuant to sub–paragraph (1) of paragraph 4, the recommended temperature; and

(c)had been kept for service or on display for sale for a period of less than four hours.

(2) In any proceedings for an offence consisting of a contravention of sub–paragraph (1) of paragraph 2, it shall be a defence for the accused to prove that the food —

(a)was being transferred —

(i)from premises at which the food was going to be kept at or below 8°C or in appropriate circumstances the recommended temperature to a vehicle used for the purposes of a food business, or

(ii)to such premises from such a vehicle; or

(b)was kept at a temperature above 8°C or, in appropriate circumstances, the recommended temperature for an unavoidable reason, such as —

(i)to accommodate the practicalities of handling during and after processing or preparation,

(ii)the defrosting of equipment, or

(iii)temporary breakdown of equipment,

and was kept at a temperature above 8°C or, in appropriate circumstances, the recommended temperature for a limited period only and that period was consistent with food safety.

Hot holding requirements

6.  Any person who in the course of the activities of a food business keeps at or in food premises at a temperature below 63°C any food which —

(a)has been cooked or reheated;

(b)is for service or on display for sale; and

(c)needs to be kept at or above 63°C in order to control the growth of pathogenic micro–organisms or the formation of toxins,

shall be guilty of an offence.

Hot holding defences

7.  In any proceedings for an offence consisting of a contravention of paragraph 6, it shall be a defence for the accused to prove that —

(a)a well–founded scientific assessment of the safety of the food at temperatures below 63°C has concluded that there is no risk to health if, after cooking or re–heating, the food is held for service or on display for sale —

(i)at a holding temperature which is below 63°C, and

(ii)for a period not exceeding any period of time specified in that scientific assessment; and

(b)at the time of the commission of the alleged offence, the food was held in a manner which was justified in the light of that scientific assessment.

(2) In any proceedings for an offence consisting of a contravention of paragraph 6, it shall be a defence for the accused to prove that the food —

(a)had been kept for service or on display for sale for a period of less than two hours; and

(b)had not previously been kept for service or on display for sale by that person.

Interpretation

8.  In this Schedule —

“Council Regulation 1906/90” means Council Regulation (EEC) No. 1906/90 on certain marketing standards for poultry(13) as last amended by Council Regulation (EC) No. 1101/98 amending Regulation (EEC) No. 1906/90 on certain marketing standards for poultrymeat(14);

“Council Regulation 1907/90” means Council Regulation (EEC) No. 1907/90 on certain marketing standards for eggs(15) as last amended by Council Regulation (EC) No. 2052/2003 amending Regulation (EEC) No. 1907/90 on certain marketing standards for eggs(16);

“recommended temperature” means a specified temperature which has been recommended in accordance with sub–paragraph (1)(a)(i) of paragraph 4; and

“shelf life” means —

Regulation 31

SCHEDULE 5DIRECT SUPPLY BY THE PRODUCER OF SMALL QUANTITIES OF MEAT FROM POULTRY AND LAGOMORPHS SLAUGHTERED ON THE FARM

Scope

1.  The requirements of this Schedule apply in relation to the direct supply by the producer of small quantities of meat from poultry or lagomorphs that have been slaughtered on the farm to the final consumer or to local retail establishments directly supplying such meat to the final consumer as fresh meat.

Offence

2.  A person who contravenes or fails to comply with any of the requirements of this Schedule shall be guilty of an offence.

Requirements

3.  No person shall sell meat from poultry or lagomorphs unless it bears a label or other marking clearly indicating the name and address of the farm where it was slaughtered.

4.  The producer shall —

(a)keep a record in adequate form to show the number of birds and the number of lagomorphs received into, and the amounts of fresh meat despatched from, his premises during each week;

(b)retain the record for a period of one year; and

(c)make the record available to an authorised officer on request.

Regulation 32

SCHEDULE 6RESTRICTIONS ON THE SALE OF RAW MILK INTENDED FOR DIRECT HUMAN CONSUMPTION

1.  Any person who sells raw milk intended for direct human consumption in contravention of paragraph 5 shall be guilty of an offence.

2.—(1) If any person other than the occupier of a production holding or a distributor sells raw cows' milk intended for direct human consumption he shall be guilty of an offence.

(2) If the occupier of a production holding sells raw cows' milk intended for direct human consumption in contravention of paragraph 3 he shall be guilty of an offence.

(3) If a distributor sells raw cows' milk intended for direct human consumption in contravention of paragraph 4 he shall be guilty of an offence.

3.  The occupier of a production holding may only sell raw cows' milk intended for direct human consumption —

(a)at or from the farm premises where the animals from which the milk has been obtained are maintained; and

(b)to —

(i)the final consumer for consumption other than at those farm premises,

(ii)a temporary guest or visitor to those farm premises as or as part of a meal or refreshment, or

(iii)a distributor.

4.  A distributor may only sell raw cows' milk intended for direct human consumption —

(a)which he has bought pursuant to sub–paragraph (b)(iii) of paragraph 3;

(b)in the containers in which he receives the milk, with the fastenings of the containers unbroken;

(c)from a vehicle which is lawfully used as a shop premises; and

(d)direct to the final consumer.

5.  The raw milk shall meet the following standards:

6.  In the case where farm premises are being used for the sale of raw cows' milk intended for direct human consumption pursuant to sub–paragraph (a) of paragraph 3, the Agency shall carry out such sampling, analysis and examination of the milk as it considers necessary to ensure that it meets the standards specified in paragraph 5.

7.  In any case where the Agency carries out sampling, analysis and examination of raw cows' milk in accordance with paragraph 6, there shall be due to the Agency from the occupier of the production holding who is selling the milk a fee of £63, which is payable by the occupier to the Agency on demand.

8.  In this Schedule —

“distributor” means a person who sells raw cows' milk that has been produced on a production holding of which he is not the occupier;

“farm premises” means a farm occupied by the occupier of a production holding as a single farm and includes the production holding and any other building situated on that farm and occupied by the same occupier;

“occupier” means any person carrying on the business of producing or handling raw cows' milk or his duly authorised representative;

“production holding” means premises at which milk-producing cows are kept; and

“shop premises” means premises from which any food is sold to the final consumer.

Regulation 33

SCHEDULE 7REVOCATIONS