Statutory Instrument

S.I. No. 442 of 2002

European Communities (Suspending the Placing on the Market, the Importation and the use in Manufacture of Jelly Confectionery Containing the Food Additive E 425 Konjac) Regulations, 2002

Dublin

Published by the Stationery Office

S.I. No. 442 of 2002

European Communities (Suspending the Placing on the Market, the Importation and the Use in Manufacture of Jelly Confectionery Containing the Food Additive E 425 Konjac) Regulations, 2002

I, Micheál Martin, Minister for Health and Children, in exercise of the powers conferred on me by Section 3 of the European Communities Act, 1972 ( No. 27 of 1972 ), having regard to Regulation (EC) No. 178/2002 of the European Parliament and of the Council of 28 January 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 safety¹ , and in particular Article 53(1) thereof, and having regard to Directive 95/2/EC of the European Parliament and of the Council of 20 February 1995 on food additives other than colours and sweeteners² , and for the purposes of giving effect to Commission Decision of 27 March 2002 suspending the placing on the market and import of jelly confectionery containing the food additive E 425 konjac (2002/247/EC³ ), hereby make the following Regulations:-

PART I

Preliminary

1.         These Regulations may be cited as the European Communities (Suspending the Placing on the Market, the Importation and the Use in Manufacture of Jelly Confectionery Containing the Food Additive E 425 Konjac) Regulations, 2002 and they shall come into operation on 3^rd September 2002.

2.         (1)       In these Regulations:

“the Act of 1998” means the Food Safety Authority of Ireland Act, 1998 (No. 29 of 1998) ;

“the Act of 1999” means the Health (Eastern Regional Health Authority) Act, 1999 (No. 13 of 1999) ;

“approved examiner” for the purposes of these Regulations has the meaning assigned to it by the European Communities (Official Control of Foodstuffs) Regulations, 1998 ( S.I. No. 85 of 1998 );

“authorised officer” means -

(a)        an authorised officer appointed under Section 49 of the Act of 1998, or

(b)        in relation to the functional area of a health board, a person or a person belonging to a class of persons, authorised by the chief executive officer of the health board concerned to perform the functions of an authorised officer under these Regulations;

“the Authority” means the Food Safety Authority of Ireland, established under Section 9 of the Act of 1998;

“the Decision” means Commission Decision of 27 March 2002 suspending the placing on the market and import of jelly confectionery containing the food additive E 425 konjac (2002/247/EC);

“foodstuff” means any substance used for food or drink by man, and

(a)        any substance which enters into or is used in the composition or preparation of human food,

(b)        any substance which enters into or is used in the composition or preparation of any such substance aforesaid, and

(c)        chewing gum and products of a similar composition and use

and references to foodstuff include, as the context may require, references to a particular food, particular foods or a class or classes of food;

“functional area” means

(a)        in relation to a health board established under Section 4 of the Health Act, 1970 ( No. 1 of 1970 ), the functional area of the health board as specified in the Health Boards Regulations, 1970 ( S.I. No. 170 of 1970 );

(b)        in relation to an Area Health Board established by Section 14(1) of the Act of 1999, the functional area of each Area Health Board as specified in Section 14(4) of the Act of 1999;

“functions” includes powers and duties and references to the performance of functions include references to the exercise of powers and the performance of duties;

“health board” means

(a)        a board established under Section 4 of the Health Act, 1970 ( No. 1 of 1970 ), and/or

(b)        an Area Health Board established by Section 14(1) of the Act of 1999;

“import” means importation from a country other than a Member State;

“konjac” means the food additive E 425 konjac, whether it takes the form of konjac gum or konjac glucomannane;

“manufacture” includes the production and processing of food, other than primary production for private domestic use and domestic preparation, handling and storage of food for private domestic consumption, and cognate words shall be construed accordingly;

“Member State” means a Member State of the European Community and shall be construed as including reference to those States that are Contracting Parties to the EEA Agreement;

“Minister” means the Minister for Health and Children;

“official control of foodstuffs” hereinafter called “control of foodstuffs” means an inspection by authorised officers of the compliance of :-

-        foodstuffs,

-        food additives, vitamins, mineral salts, trace elements and other additives intended to be sold as such, or

-        materials and articles intended to come into contact with food,

with provisions aimed at preventing risks to public health, guaranteeing fair commercial transactions or protecting consumer interests, including provisions on consumer information;

“official laboratory” for the purposes of these Regulations means a laboratory approved in writing by the Minister or by the chief executive officer of a health board pursuant to the European Communities (Official Control of Foodstuffs) Regulations, 1998 ( S.I. No. 85 of 1998 );

“placing on the market” means the holding of foodstuff for the purposes of sale, including offering for sale or any other form of transfer, whether free of charge or not, and the sale, distribution, and other forms of transfer themselves, and cognate words shall be construed accordingly.

(2)       A word or expression that is used in these Regulations and that is also used in the Decision has, unless the context otherwise requires, the same meaning in these Regulations as it has in the Decision.

(3)       (a)        A reference in these Regulations to a Regulation is to a Regulation of these Regulations, unless it is indicated that reference to some other Regulation is intended.

(b)       A reference in these Regulations to a paragraph or subparagraph is to the paragraph or subparagraph of the provision in which the reference occurs, unless it is indicated that reference to some other provision is intended.

PART II

General Provisions

3.     These Regulations concern the placing on the market, the importation and the use in manufacture of jelly confectionery, including jelly mini-cups, containing konjac.

4.     From the date of coming into operation of these Regulations, a person shall not -

(a)  use konjac in the manufacture of jelly confectionery, including jelly mini-cups,

(b)  place on the market jelly confectionery, including jelly mini-cups, containing konjac, or

(c)  import jelly confectionery, including jelly mini-cups, containing konjac.

PART III

Enforcement

5.         Official control of foodstuffs shall be carried out in accordance with the provisions of these Regulations.

6.         These Regulations shall be enforced by the Authority.

7.         These Regulations shall be deemed to be food legislation for the purposes of the Act of 1998 and the enforcement provisions contained in that Act shall accordingly apply for the purposes of ensuring compliance with these Regulations.

8.         (1)       Without prejudice to Regulation 7, the powers contained in the European Communities (Official Control of Foodstuffs) Regulations, 1998 ( S.I. No. 85 of 1998 ), as amended, may be exercised for the purposes of ensuring compliance with these Regulations.

(2)       An official certificate given in accordance with Regulation 14(1) of the said Regulations of 1998, as amended, may be adduced in evidence in a prosecution under these Regulations and shall be prima facie evidence of the matters contained therein, until the contrary is proved.

9.         Without prejudice to Regulations 7 and 8, before the European Communities (Suspending the Placing on the Market, the Importation and the Use in Manufacture of Jelly Confectionery Containing the Food Additive E 425 Konjac) Regulations, 2002 are added to Schedule 1 of the service contract entered into by a health board and the Authority under the Act of 1998, the powers contained in Regulations 10 to 15 may be exercised by health boards in their functional areas, for the purposes of ensuring compliance with these Regulations.

10.       (1)       The chief executive officer of a health board may appoint in writing such and so many officers of the health board as he or she thinks fit to be authorised officers for the purposes of ensuring compliance with these Regulations in the functional area of the health board.

(2)       An authorised officer appointed pursuant to paragraph (1) shall be furnished with a certificate of his appointment as an authorised officer and when exercising any power conferred on an authorised officer under these Regulations, shall, if requested by any person affected, produce the certificate to that person.

(3)       For the purposes of ensuring compliance with these Regulations, the appointments referred to in paragraph (1) shall continue in force after these Regulations are added to Schedule 1 of the service contract entered into by a health board and the Authority under the Act of 1998.

11.       (1)       An authorised officer may for the purposes of ensuring that these Regulations are being complied with -

(a)       require any employee of the health board, a former employee of the health board or any person otherwise currently or previously retained by the health board, or any person who carries or has carried on any trade, business or activity to which these Regulations relate or any person currently or previously employed in connection with that trade, business or activity to produce to him or her such records, and in the case of such information in a non-legible form to reproduce it in a permanent legible form, or to give him or her such information, as the officer may reasonably require in relation to any entries in such records;

(b)       at all reasonable times enter any premises, subject to paragraph (3), at which there are reasonable grounds to believe that any trade, business or activity in connection with the production, processing, disposal, manufacture, exportation, importation, storage, distribution, sale, marketing or labelling for the purposes of marketing, of any foodstuff to which these Regulations apply is or has been carried on, or that records in relation to such trade, business or activity are kept, and search and inspect the premises and any foodstuff, label or records found in or on the premises;

(c)       secure for later inspection any premises or any part thereof in which such foodstuff, label or records are kept or in respect of which there are reasonable grounds for believing that such foodstuff, labels or records are kept;

(d)       inspect and take copies of or extracts from any such records (including in the case of information in a non-legible form a copy of or extract from such information in a permanent legible form);

(e)       seize, remove, detain and/or direct the withdrawal from the market of any foodstuff intended for sale for human consumption which is suspected by him to fail to comply with the provisions of these Regulations;

(f)        seize, remove, detain and/or direct the prohibition of the placing on the market of any foodstuff which is suspected to fail to comply with these Regulations;

(g)       seize, remove and/or detain any foodstuff to which these Regulations apply which he reasonably believes has been manufactured or imported or intended for import in contravention of these Regulations;

(h)       seize, remove and/or detain any foodstuff to which these Regulations apply which he reasonably believes is intended for use in contravention of these Regulations;

(i)        remove and retain the said foodstuff, labels or records for such period as may be reasonable for further examination or until the conclusion of any legal proceedings;

(j)        as regards any product or any article or substance used in the manufacture or preparation of a foodstuff the officer finds at or in a premises, require any person in charge thereof or any person who appears to the officer to be in possession of the product or the article or substance, to supply without payment, for test, examination or analysis sufficient samples thereof;

(k)       require any person to afford the officer such facilities and assistance within his or her control or responsibilities as are reasonably necessary to enable the officer to exercise any of the powers conferred on an authorised officer under this Regulation;

(l)        require a person referred to in subparagraph (a) to give to the officer any information which the officer may reasonably require in regard to the trade, business or activity or in regard to the persons carrying on such trade, business or activity or employed in connection with that trade, business or activity;

(m)      require any person referred to in subparagraph (a) by or on whose behalf data equipment is or has been used in relation to a business within the meaning of subparagraph (b) or any person having charge of, or otherwise concerned with the operation of, the data equipment or any associated apparatus or material, to afford the officer all reasonable assistance in relation to its use thereto;

(n)       summon, at any reasonable time, any other person being or having been an employee of the health board or retained or having been retained by the health board or employed in connection with the trade, business or activity under examination by the health board to give to the officer any information which the officer may reasonably require in regard to that trade, business or activity and to produce to the officer any records which are in that person's power or control;

(o)       examine any procedure connected with the manufacture of a foodstuff;

(p)       exercise such other powers as may be necessary to ensure that these Regulations are being complied with.

(2)       Where an authorised officer has reasonable grounds for believing that a person has contravened any provision of these Regulations and so informs such person, the authorised officer may require such person to state his name and address, and, if the authorised officer thinks it necessary, to produce corroborative evidence of his name and address.

(3)       An authorised officer shall not, other than with the consent of the occupier, enter a private dwelling unless he or she has obtained a warrant from the District Court under paragraph (6) authorising such entry.

(4)       Where an authorised officer in the exercise of the officer's powers under this Regulation is prevented from entering any premises, an application may be made to the District Court under paragraph (6) for a warrant authorising such entry.

(5)       An authorised officer, where he or she considers it necessary, may be accompanied by a member of the Garda Síochána when performing any powers conferred on an authorised officer under these Regulations.

(6)       If a judge of the District Court is satisfied on the sworn information of an authorised officer that there are reasonable grounds for suspecting that there is information required by an authorised officer under this Regulation held on or in any premises or any part of any premises or there is a foodstuff which an authorised officer requires to inspect for purposes of these Regulations or that such inspection is likely to disclose evidence of a contravention of these Regulations, the judge may issue a warrant authorising an authorised officer, accompanied, if appropriate, by other authorised officers or by a member of the Garda Síochána, at any time or times within one month from the date of issue of the warrant, on production, if so requested, of the warrant, to enter, if need be by reasonable force, the premises and exercise all or any of the powers conferred on an authorised officer under this Regulation.

(7)       An application under paragraph (6) shall be made to the judge of the District Court in whose district court district the premises is situated.

12.       (1)       An authorised officer may destroy or otherwise dispose of any foodstuff seized, removed and detained by him or her under Regulation 11(1)(e), with the consent of the owner or person responsible for the foodstuff or upon the granting of an order under paragraph (3).

(2)       An authorised officer who has seized, removed and detained any foodstuff under Regulation 11(1)(e) may, on giving notice in writing to the owner or person responsible for the foodstuff apply to a judge of the District Court in whose district court district the foodstuff was seized for an order directing that the foodstuff be destroyed or otherwise disposed of as being a foodstuff which is not in compliance with these Regulations.

(3)       A judge of the District Court to whom an application is made under paragraph (2) shall, if satisfied that such foodstuff does not comply with these Regulations order that it be destroyed or otherwise disposed of after such period, not exceeding 14 days, as may be specified in the order, as being a foodstuff which is not in compliance with these Regulations.

13.         (1)     An authorised officer may, for the purposes of these Regulations, purchase or take without payment a sample of any foodstuff.

(2)          An authorised officer may for the purposes of taking a sample of a foodstuff open any receptacle.

(3)       Where an authorised officer purchases or takes without payment, with the intention of having it analysed by an approved examiner, a sample of a foodstuff which is suspected by him to fail to comply with the provisions of these Regulations applicable to such foodstuff, he may, by notice in writing to the seller, owner or person in apparent charge or control of such foodstuff (as the case may be) prohibit the removal of the foodstuff except to any place which may be specified in the notice, during such period as may be specified in the notice, but not exceeding fourteen days from the date of the taking of the sample.

(4)       Where an authorised officer purchases or takes without payment a sample of a foodstuff with the intention of having it analysed by an approved examiner in an official laboratory, he shall after purchasing or taking the sample forthwith notify the seller, owner or person in apparent charge or control of the foodstuff (as the case may be) of his intention of having the sample analysed.

(5)       Nothing in this Regulation shall authorise the examination or detention of a foodstuff without the consent of an officer of the Revenue Commissioners where the duties of such officer in relation to such item have not been wholly discharged.

14.       (1)       Where a sample of any product, article or substance is supplied pursuant to Regulation 11(1)(g) and where the division of the sample is reasonably practicable, the authorised officer concerned may divide the sample into not more than three approximately equal parts each of which he shall mark in such a way as to identify it as a part of the sample so supplied.

(2)       The authorised officer shall mark, seal and fasten each part in such a manner as its nature will permit, forward one part to an official laboratory where it may be tested, examined or analysed for the purposes of these Regulations by an approved examiner, give or send one part to the seller, owner or person in apparent charge or control of the product, article or substance and retain the third part.

(3)       Where an authorised officer takes a sample consisting of a product, article or substance contained in unopened containers and its division into parts-

(a)       is not reasonably practicable, or

(b)       might affect the composition or impede the proper analysis of the sample,

the provisions of paragraph (1) as regards the division of samples into parts shall be deemed to be complied with if the authorised officer divides the containers into three lots and deals with each lot as if it were a sample as specified under paragraph (1).

(4)       In proceedings for an offence under these Regulations, the result of any test, examination or analysis of, or report on a sample of a product, article or substance taken pursuant to these Regulations shall not be adduced unless before the proceedings were instituted the sample was divided as specified in paragraphs (1), (2) and (3) of this Regulation. The part, package or container retained by the authorised officer shall be produced at the hearing.

15.       (1)       The approved examiner or a person under his direction shall analyse as soon as possible any sample of a product, article or substance submitted to him in pursuance of these Regulations and the approved examiner shall certify to the person who submitted the sample to him the result of such analysis.

(2)       If the approved examiner finds that any sample analysed by him or her under paragraph (1) is not in compliance with these Regulations the form of certificate set out in Schedule 1 to these Regulations or a certificate in like form shall be used.

(3)       An official certificate given in accordance with paragraph (1) may be adduced in evidence in a prosecution under these Regulations and shall be prima facie evidence of the matters contained therein, until the contrary is proved.

16.       Where a sample of a product, article or substance is taken by an authorised officer in pursuance of these Regulations for analysis by the approved examiner, and where the seller, owner or person in apparent charge or control of such item requests in writing the results of such analysis, the request shall be made to the health board in whose functional area the sample was taken, or to the Authority, and the health board or the Authority shall comply with such request.

17.       (1)       A person who fails to comply with these Regulations shall be guilty of an offence.

(2)       For the purposes of these Regulations, every contravention of a Regulation shall be deemed a separate contravention and every contravention of a paragraph shall also be deemed to be a separate contravention and shall carry the same penalty as for a single contravention of any Regulation of these Regulations.

(3)       A person who falsely represents himself to be an authorised officer shall be guilty of an offence.

(4)       A person who -

(a)        obstructs or interferes with an authorised officer in the exercise of the officer's powers under these Regulations, or

(b)        fails or refuses to state his name or address in compliance with a requirement under these Regulations, or

(c)        fails to comply with a request from an authorised officer under these Regulations, or

(d)        makes a statement to an authorised officer which the person knows is false or misleading, or

(e)        gives in purported compliance with a requirement under these Regulations a name, an address or corroborative evidence which is false or misleading

shall be guilty of an offence.

(5)       A person who is guilty of an offence under these Regulations shall be liable on summary conviction to a fine not exceeding 1,900 or at the discretion of the Court to imprisonment for a term not exceeding six months, or both.

18.       Where an offence under these Regulations is committed by a body corporate or by a person acting on behalf of a body corporate and is proved to have been so committed with the consent, connivance or approval of, or to be attributable to any neglect or default on the part of any director, manager, secretary or any other officer of such body, or a person who was purporting to act in any such capacity, such person shall also be guilty of an offence and shall be liable to be proceeded against and punished as if he were guilty of the first-mentioned offence.

19.       An offence under these Regulations may be prosecuted by -

(1)       the Authority, or

(2)       a health board within whose functional area the offence was committed.

20.       (1)       Any person who forges, or utters knowing it to be forged, a certificate or other document purporting to be issued, granted or given under these Regulations (hereafter in this Regulation referred to as “a forged document”), is guilty of an offence.

(2)        Any person who alters with intent to defraud or deceive, or who utters knowing it to be so altered, a certificate or other document issued, granted or given under these Regulations (hereafter in this Regulation referred to as “an altered document”), is guilty of an offence.

(3)        Any person who, without lawful authority, has in his or her possession a forged document or an altered document is guilty of an offence.

(4)        Any person who, with intent to defraud or deceive -

(a)       tampers with any thing so as to procure that any sample taken pursuant to these Regulations does not correctly represent the substance sampled, or

(b)       tampers or interferes with any sample taken under these Regulations,

is guilty of an offence.

21.       (1)       A notice or other document under these Regulations shall, subject to paragraph (2), be addressed to the person concerned by name, and may be served on or given to the person in one of the following ways:

(a)       by delivering it to the person,

(b)       by leaving it at the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, at that address,

(c)       by sending it by post in a prepaid registered letter to the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, to that address,

(d)       where the address at which the person ordinarily resides cannot be ascertained by reasonable inquiry and the notice, direction or other document relates to land, by delivering it to some person over 16 years of age resident or employed on the land or by affixing it in a conspicuous position on or near the land.

(2)       It shall not be lawful for a person at any time during the period of 12 months after a direction or other document is affixed under sub-paragraph (d) of paragraph (1) to remove, damage or deface the notice, direction or other document without lawful authority.

(3)       For the purposes of this Regulation, a company within the meaning of the Companies Acts, 1963 to 2001, shall be deemed to be ordinarily resident at its registered office, and every other body corporate and every unincorporated body shall be deemed to be ordinarily resident at its principal office or place of business.

Schedule 1

Form of official certificate to be given by an approved examiner to an authorised officer.

European Communities (Suspending the Placing on the Market, the Importation and the Use in Manufacture of Jelly Confectionery Containing the Food Additive E 425 Konjac) Regulations, 2002

Certificate of Analysis

To (1)  ..................................

I, the undersigned (2)  ......................................

being the Approved Examiner for the purpose of Regulations 14 and 15 of the above Regulations certify that on

the  ........................day of  .......................20 .......

a sample marked (3)    .................................

Date    ..................................

Number     .................................

Weight or Measure (4)   .....................................

was submitted to me by you and I certify that the sample has been analysed/examined by me or under my direction (5) and as a result I am of the opinion that (6)

Observations: (7)

I further certify that the sample has undergone no change which would effect my opinion/observations expressed above.

Certified by me this ................ day of ............................ 20 .....

at (8)  .............................

Name in BLOCK LETTERS  .................................................

Status  .................................................

Signature  .................................................

_{____________________}

Official Stamp

NOTES

(1)       Insert the name and address of the person submitting the sample for analysis.

(2)       Insert description (i.e. officer of health board etc.).

(3)       Insert particulars of marking (e.g. name, date etc.).

(4)       This may be left unanswered if the sample cannot be conveniently weighed or measured or the weight or measurement is not material to the result of analysis.

(5)       State whether the analysis was carried out by an approved examiner or under his direction by deleting appropriate words (“by me” or “under my direction”).

(6)       Here the approved examiner should specify the result of the analysis having regard to the provisions of relevant legislation.

(7)       Here the approved examiner may insert, at his discretion, his opinion whether the analysis indicates any addition, abstraction, deficiency or the presence of foreign matter or other defect and whether the composition or quality is thereby affected; any physical, chemical or other properties bearing on the composition or quality of the article; whether the article is injurious to health or unfit for human consumption; whether and in what respect a label and description relating to the sample is incorrect or misleading; and he may add any other observations as he may consider relevant.

(8)       Insert the name and address of the laboratory carrying out the analysis/examination.

Explanatory Note

(This note is not part of the Instrument and does not purport to be a legal interpretation).

These Regulations give effect to Commission Decision 2002/247/EC of 27 March 2002 suspending the placing on the market and the import of jelly confectionery, including jelly mini-cups containing the food additive E 425 konjac. The Regulations also prohibit the use of E 425 konjac in the manufacture of jelly confectionery.

These Regulations, may be cited as the European Communities (Suspending the Placing on the Market, the Importation and the Use in Manufacture of Jelly Confectionery Containing the Food Additive E 425 Konjac) Regulations, 2002, and they come into effect on 3^rd September 2002.

¹ O.J. L 31, 1.2.2002, p. 1.

² O.J. L 61, 18.3.1995, p. 1.

³ O.J. L 84, 28.3.2002, p. 69.