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

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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


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

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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

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

A w a n g m t of Sections

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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

Food Safety Act 1990 s 1

Commissioners of Customs and Excise, shall enforce or execute them. Legal proceedings for offences against the Act or regulations made thereunder

may be instituted by enforcement authorities but Ministers may take over the conduct of any such proceedings which have been instituted by some other person.

1. (1) In this Act 'food' includes— (a) drink; (6) articles and substances of no nutritional value which are used for

human consumption; (c) chewing gum and other products of a like nature and use; and (d) articles and substances used as ingredients in the preparation of food or

anything falling within this subsection.

(2) In this Act 'food' does not include— (a) live animals or birds, or live fish which are not used for human con

sumption while they are alive; (b) fodder or feeding stuffs for animals, birds or fish; (c) controlled drugs within the meaning of the Misuse of Drugs Act 1971;

or (d) subject to such exceptions as may be specified in an order made by the

Ministers— (i) medicinal products within the meaning of the Medicines Act 1968

in respect of which product licences within the meaning of that Act are for the time being in force; or

(ii) other articles or substances in respect of which such licences are for the time being in force in pursuance of orders under section 104 or 105 ofthat Act (application of Act to other articles and substances).

(3) In this Act, unless the context otherwise requires— 'business' includes the undertaking of a canteen, club, school, hospital

or institution, whether carried on for profit or not, and any undertaking or activity carried on by a public or local authority;

'commercial operation', in relation to any food or contact material, means any of the following, namely— (a) selling, possessing for sale and offering, exposing or advertising for

sale; (b) consigning, delivering or serving by way of sale; (c) preparing for sale or presenting, labelling or wrapping for the pur

pose of sale; (d) storing or transporting for the purpose of sale; (e) importing and exporting; and, in relation to any food source, means deriving food from it for the purpose of sale or for purposes connected with sale;

'contact material' means any article or substance which is intended to come into contact with food;

'food business' means any business in the course of which commercial operations with respect to food or food sources are carried out;

Part I: Preliminary

'food premises' means any premises used for the purposes of a food business;

'food source' means any growing crop or live animal, bird or fish from which food is intended to be derived (whether by harvesting, slaughtering, milking, collecting eggs or otherwise);

'premises' includes any place, any vehicle, stall or moveable structure and, for such purposes as may be specified in an order made by the Ministers, any ship or aircraft of a description so specified.

(4) The reference in subsection (3) above to preparing for sale shall be construed, in relation to any contact material, as a reference to manufacturing or producing for the purpose of sale.

General. This section re-enacts and extends the definition of 'food' in s 131 of the Food Act 1984. The intention has been to ensure that all food from whatever source and of all classes, including ingredients, raw materials and additives is subject to control by the Act.

Water is now deemed to be food and the exemption for water in the Acts of 1956 and 1984 has been abolished. However, water supplied to any premises by a water undertaker (water authority in Scotland) or by means of a private supply is not subject to the Act; see ss 55 and 56. The Water Act 1989 and the Water (Scotland) Act 1980 are amended by those sections to ensure that water supplied for food production purposes is subject to the quality and safety provisions of those Acts. Criminal liability for water under this Act may arise from the time when water is sold etc as a food in its own right or is used as an ingredient in food.

The definitions in sub-s (3) which, except for 'business' are all new, are included in this Act to give expression to the much wider criminal liability arising from trade in food products and the notice and order making powers conferred on authorised officers, the Ministers and the courts. The definition of 'premises' is much wider than that in former legislation and may be further extended by an Order made by the Ministers. Definitions. For 'human consumption', 'substance', 'preparation', 'article', 'animal', 'fish', 'exporting' and 'importing' see s 53(1). Food. Food is defined in the Shorter Oxford English Dictionary, 3rd Edn, as 'what one takes into the system to maintain life and growth and to supply waste, aliment, nourishment, victuals...' Bearing in mind the definition of 'preparation' in s 53(1) as including manufacture and any form of processing or treatment and sub-s 1(c) and (d) supra it is clear that that any substance, whether or not ingested, taken into the mouth for sustenance or pleasure is deemed to be food.

However, the question remains as in former legislation, whether a substance which is not food but which is supplied in response to a demand for food is caught by the criminal provisions of this Act. The point was considered in Meah v Roberts, Lansley v Roberts [1978] 1 All ER 97, [1977] 1 WLR 1187, DC. A customer in a restaurant ordered two glasses of lemonade for his children. They were served by mistake with a caustic soda solution. The reason for what happened was that a third person, an employee of a brewery who supplied the restaurant, had used the botde whilst cleaning the beer supply equipment. He had written 'cleaner' in small letters on the botde and had told the waiter but not the manager. Held, that there was a sale of 'food', for the purposes of the Food and Drugs Act 1955, which turned out not to be of the substance demanded and unfit for human consumption contrary to ss 2 and 8 of that Act. The third person was also held to be guilty of the offences even though he was not concerned with the sale of food {Knight v Bowers (1885) 14 QBD 845 followed).

7


2. Extended meaning of 'sale' etc. (1) For the purposes of this Act— (a) the supply of food, otherwise than on sale, in the course of a business;

and (b) any other thing which is done with respect to food and is specified in an

order made by the Ministers, shall be deemed to be a sale of the food, and references to purchasers and purchasing shall be construed accordingly.

(2) This Act shall apply— (a) in relation to any food which is offered as a prize or reward or given

away in connection with any entertainment to which the public are admitted, whether on payment of money or not, as if the food were, or had been, exposed for sale by each person concerned in the organisation of the entertainment;

(b) in relation to any food which, for the purpose of advertisement or in furtherance of any trade or business, is offered as a prize or reward or given away, as if the food were, or had been, exposed for sale by the person offering or giving away the food; and

(c) in relation to any food which is exposed or deposited in any premises for the purpose of being so offered or given away as mentioned in paragraph (a) or (b) above, as if the food were, or had been, exposed for sale by the occupier of the premises;

and in this subsection 'entertainment' includes any social gathering, amusement, exhibition, performance, game, sport or trial of skill.

General. This section provides for the extended meaning of the term 'sale' so as to bring all food, supplied in all circumstances, within the scope of the Act. Sub-s (1) is similar to the former provisions of s 131(2) of the Food Act 1984. Sub-s (2) is new and extends the term 'expose for sale' to include food offered as prizes or awards or given away at entertainment events; free samples, prizes or gifts in relation to advertising or other sales promotions; and to make it clear that food deposited on premises by one person with the intention that it be given away or offered is deemed to be so exposed by the occupier of the premises. This section should be read with the definition of 'business' in s 1(3), and s 54 in relation to liability for food supplied by Crown establishments.

Defintions. For 'food', 'premises' and 'business' see s 1. For 'advertisement' see s53(l).

Supply of food otherwise than by sale. This phrase has sometimes come into question. It is submitted that since the sub-s extends criminal liability it should be narrowly rather than widely construed. In that sense it may be held to refer to a person who intends to consume the food but does not give a consideration for it. In Swain v Old Kentucky Restaurants Ltd (1973) 138 JP Jo 84, a customer in a restaurant ordered a meal which included a jacket potato. The meal was served with a potato which was bad inside. The customer returned the potato and was not asked to pay for it. An information under s 2 of the Food and Drugs Act 1955 for selling food not of the quality demanded was dismissed by the Justices on the grounds that the potato, having been rejected by the customer, had not been sold. On appeal by

8

Part I: Preliminary

the prosecutor to the Divisional Court it was held that s 131(2)(α) of that Act clearly provided that the supply of food in the course of a business should be deemed to be a sale of food and covered the present case which was returned to the Justices with a direction to convict.

SELL, OFFER, EXPOSE, POSSESS AND ADVERTISE FOR SALE

Sell. The essence of a sale of goods is the existence of a contract by which the seller transfers or agrees to transfer the property in goods to the buyer for a money consideration, called the price. There may be a contract of sale between one part owner and another and a contract of sale may be absolute or conditional (s 2; Sale of Goods Act 1979). However, the extended meaning of the term 'sale' in this section applies to all offences in this Act where sale is an element and thus encompasses 'supply in the course of a business' and any such other thing done with respect to food as may be specified in an Order made by the Ministers. 'Supply' takes place on the physical transfer of goods from one person to another and there need be no money consideration. Thus the supply of food in staff canteens and in similar circumstances is a 'sale' within the meaning of this section. Note also the new provisions of s 54 in respect of Crown immunity which affects food supplied in National Health hospitals and other government establishments and the meaning of the term 'business' in s 1(3), and the note thereto.

Intention to sell. There must be an intention to sell. In Thomas v Ball (1948) 92 Sol Jo 272, the respondent (a licensee of a public house) reluctantly complied with an order for half a pint of whisky at the request of the appellant (an inspector of weights and measures). The Justices found that the bottle in question had not been displayed for sale to the public and was kept for the licensee's own use. They decided that there had, therefore, been no sale as there had never been any real agreement or intention to sell. The summons alleging the sale of adulterated whisky to the prejudice of the purchaser contrary to s 3(1) of the Food and Drugs Act 1938 was accordingly dismissed.

Supply. The transfer of food from one person to another constitutes the 'supply of food' within the meaning of this section and there need be no money consideration providing the supply is in the course of a business. In Graff v Evans (1882) 8 QBD 373 it was decided that where a stock of intoxicating liquor is bought by a club on behalf of the whole body of members and distributed to them in accordance with club rules, the transactions between the club and individual members are of 'supply' and not of 'sale'. Similarly, the supply of food in exchange for free tokens, as prizes, gifts or by any other means in the course of business is subject to the Act.

The application of sub-s (1) must be taken into account by a court. In Fleming v Edwards (1985) 150 JP 539 the Justices wrongly dismissed two informations in respect of the selling of food to the prejudice of the purchaser which was not of the substance demanded under s 2 of the Food and Drugs Act 1955 by concluding on the facts that there has been no sale. Section 135 of that Act (now s 2(1) of this Act) was not drawn to their attention and it was clear that the whole answer to the case was to be found in that section and in Swain v Old Kentucky Restaurants Ltd (1973) 138 JP Jo 84. On appeal to the Divisional Court the case was remitted to the Justices with a direction to convict.

Sales without the knowledge of the owner. In circumstances where an agent or employee sells food which is adulterated or otherwise unlawful without the knowledge of the proprietor of the business, there can be no doubt that the proprietor is criminally liable but proceedings may also be brought against the agent or employee by whose act or default the offence has been committed (see s 20). The test is whether the sale has taken place in the course of the business of the proprietor. There have been a number of cases under licensing legislation where the

9


liability of licensees and their employees has been considered. They are:

Jones v Hartley (1918) 88 LJKB 271; proprietor convicted in respect of unlawful sales by her employees made without her knowledge.

Hotel Regina (Torquay) Ltd v Moon [1940] 2 KB 69, [1940] 2 All ER 495; proprietors of an unlicensed hotel who had allowed their staff to sell intoxicating liquor by retail were themselves taking part in the sale and were accordingly liable.

Mellow v Lydiate [1914] 3 KB 1141; where the manager of premises where the sales were carried out was licensed but the owners (the appellants) were not, the owners were not liable.

Peckover v Defries and Newton (1906) 71 JP 38: unlicensed persons cannot protect themselves by selling liquor under the cloak of the licence of another person whose liquor they were not selling.

Goodfellow v Johnson [1966] 1 QB 83, [1965] 1 All ER 941; a manager and licensee of premises owned by a brewery company was liable for sales made by an unlicensed barmaid who was in the employ of the brewery company.

Elias v Dunlop [1906] 1 KB 266; Stallard v Marks (1878) 3 QBD 412; Killick v Graham, Lintern v Burchell [1896] 2 QB 196; Davies v Appleby [1916] Brewing Tr Rev 67: a person having a licence to sell beer from one premises but who made sales from another unlicenced premises was liable.

Time of sale. The time of payment is immaterial for a sale to be completed within the terms of this section. The material point is whether a sale is made before disclosure that the food is not that required or of the quality demanded; Miles v Melias Ltd (1930) British Food Journal, April 1930, p54. However, regard should always be had to the judgment in Pharmaceutical Society of Great Bntain v Boots Cash Chemists (Southern) Ltd [1952] 2 QB 795, [1952] 2 All ER 456; affd. [1953] 1 QB 401, [1953] 1 All ER 482, CA in which it was held that in a self-service shop, the contract of sale is not completed until the customer's offer to buy, constituted by taking the article from the shelf, is accepted by the cashier by his acceptance of the purchase price. The display of such articles for sale is merely an invitation to treat. It appears unlikely that the act of removing an article from a shelf by the customer is a 'supply of food otherwise than on sale' within the meaning of sub-s(l)(a) above.

Offer or expose for sale. These terms, together with 'possession for sale' and 'advertise for sale', which were limited to ss 6 and 8 of the Food Act 1984, acquire a new importance in this Act because of the greatly extended criminal liability arising from enforcement in the factory, at the point of importation and elsewhere. The provisions of s 8, for example, which create a series of offences for food which does not comply with the food safety requirements, apply in all such circumstances. On premises where food is being manufactured, for example, it may be difficult to decide whether the food has progressed in its preparation to a point where it may be deemed to be 'offered for sale', 'exposed for sale' or 'in possession for sale'. In framing an information under s 8(1)(α), for example, it is important to choose the term most appropriate to the evidence available.

It is important to distinguish between an offer for sale and an invitation to treat in some contexts. In Partridge v Cnttenden [1968] 3 All ER 421, [1968] 1 WLR 1204 the defendant inserted an advertisement in the 'for sale' column of a periodical advertising bramble-finch cocks and hens for 25s each. The words 'offer for sale' were not used. The defendant was charged with unlawfully offering for sale a live wild bird contrary to the Protection of Birds Act 1954 and was convicted. On appeal the conviction was quashed by the Divisional Court. Ί think that when one is dealing with advertisements and circulars, unless indeed they come from manufacturers, there is business sense in their being construed as invitations to treat

10

Part I: Preliminary

and not offers for sale.' A similar decision was reached in Fisher v Bell [1961] 1 QB 294, [1960] 3 All ER 731, with regard to the display in a shop of an offensive weapon (a flick knife). 'It is clear that, according to the ordinary law of contract, the display of an article with a price on it in a shop is merely an invitation to treat. It is in no sense an offer for sale, the acceptance of which constitutes a contract'—per Lord Parker. See also Pharmaceutical Society of Great Britain v Boon Cash Chemists (Southern) Ltd [1952] 2 QB 795, [1952] 2 QB 795, [1952] 2 All ER 456 and British Car Auctions Ltd v Wright [1972] 3 All ER 462, [1972] 1 WLR 1519.

Exposure for sale in relation to food means exposure to view in a context where sales are carried on or are anticipated. It need not be limited to circumstances where the intending purchaser can actually see it.

Examples of cases where it was held that there was an exposure for sale of food are:

Keating v Horwood (1926) 90 JP 141. A baker was delivering bread from an open car. Having completed his round and while returning to the bakehouse, he was stopped by an inspector, who weighed the remaining loaves and found a deficiency. It was held that there was an exposure for sale of the bread left in the car, since, when the journey started, it was uncertain which, if any, loaves would remain unsold, and they were taken for the purpose of being sold if customers required them. (Dicta to the effect that this also constituted an offer for sale were disapproved of in Fisher v Bell above).

Wheat v Brown [1892] 1 QB 418. In this case the issue was whether margarine had been 'exposed for sale' within s 6 of the Margarine Act 1887 (repealed). It was held that the meaning of these words was not limited to such an exposure as would enable purchasers to see the margarine itself, but that margarine when wrapped in paper so as to be invisible to the purchaser might be exposed for sale within the meaning of the Act.

McNair v Tenoni [1915] 1 KB 526. The respondent carried on a business as confectioner and eating-house proprietor. An inspector asked to buy a glass of milk for the purpose of analysis. There was milk in a pan on the counter but the respondent's manager had instructions to sell it for the purpose of mixing with tea or other liquids. The manager refused to sell it to the inspector. It was held that although the milk was intended to be sold only in the manner described it had nevertheless been exposed for sale and the respondent was therefore liable to a penalty in respect of the refusal to sell under the Sale of Food and Drugs Act 1875 s 17 (repealed).

Ollet v Jordan [1918] 2 KB 41. Under the Public Health Act 1875 s 117 (repealed) it was an offence to expose for sale meat for human consumption if it was unsound. It was held that the expression 'exposure for sale' included an exposure for the purpose of completing an agreement to sell previously entered into.

The expression 'exposure for sale' or the like appears in other penal statutes—see for instance Consumer Safety Act 1978 s 2(1), which refers to 'exposing or possessing goods for supply'. It normally imports an intention to sell at the particular time of exposure, and therefore will not apply in respect of goods already sold (Rye v Collip Ltd (1957) unreported, in which goods having been sold were in course of deh very, and the seller was held not to have them in possession for sale).

For instances of other actions not constituting 'exposure for sale' see Luke v Charles (1861) 25 JP 148 (exposure for view only); Newton-in-Makerfield Urban Council v Lyon (1900) 69 LJQB 230; Philpott v Allright (1906) 70 JP 287; Clark v Strachan (1940) JC 29 (sausages made to order of customer lying in dish in shop held not 'exposed for sale').

Offences involving and 'offer for sale' or 'exposure for sale' are unlikely to occur in

11

Food Safety Act 1990 s2

manufacturing, importing or wholesale premises. In most cases where unlawful food is found in such premises the offence will be one of 'possession for sale'.

Possession for sale. The word 'possession' in this context would appear to mean possession by the accused or his agent in fact, and 'should be given a popular and not a narrow construction', per Lord Reading CJ in Webb v Baker [1916] 2 KB 753, 80 JP 449. The court in that case declined to hold that unsound rabbits in fact delivered to the purchaser's premises were nevertheless still in the vendor's possession. It was agreed that such might be the true legal position under the contract of sale having regard to the Sale of Goods Act 1893 (now the Sale of Goods Act 1979). See also Kilsby v Horsford (1948) 93 Sol Jo 601, and Challand v Bartlett [1953] 2 All ER 832, [1953] 1 WLR 1105. In these cases the decision in Oliver v Goodger [1944] 2 All ER 481, was queried and that case distinguished. See also Cant v Harley & Sons Ltd [1938] 2 All ER 768; Wieland v Butler-Hogan (1904) 73 LJKB 513; and Ollett v Henry [1919] 2 KB 88.

Bearing in mind the foregoing authorities and those which follow it may be reasonably concluded that food which is in the possession of a food business (see definition of 'business' in s 1(3), and the note thereto) anywhere in the manufacturing and distribution chain may be in possession for sale. The question arises as to the point at which food becomes 'in possession for sale' during manufacture or preparation. There can be no doubt that once the food is prepackaged or assigned for delivery to a purchaser it is indeed in possession for sale but it is possible that food which, for example, does not comply with the food safety requirement (see s 8), may be found on food premises in an unfinished state. If the manufacturer is aware of the defect in the food, and has put it aside pending removal from the premises, it may not be in possession for sale. It is therefore important that all food in manufacturing, processing and importation premises which has not yet been checked for compliance with the food safety requirements or which has been checked and has been found not to comply with those requirements be clearly identified as such and kept separately from other food which is being used in manufacture or preparation. In such circumstances an offence of 'possession for sale' may not arise and a defence of all reasonable precautions and all due diligence under s 21 may be available in the event of proceedings.

Other cases concerning 'possession for sale' are:

(a) A person who could be said to import meat may also be in possession of it. In Dover District Council vC R Barron Ltd (1979) (unreported) the defendant company was charged with— (i) importing into the United Kingdom for sale for human consumption frozen

beef unaccompanied by an official certificate contrary to regs 12 and 17 of the Imported Food Regulations 1968 as amended (being regulations made under the Food and Drugs Act 1955);

(ii) landing in the United Kingdom meat to which reg 13 applied (prohibiting its removal from Dover otherwise that for exportation) contrary to regs 15 and 17. The defendant pleaded the statutory defence under s 115 which applied to offences under the Act or regulations made thereunder provided the offence involved (inter alia) 'having in possession for the purpose of sale, any article or substance'. As to the first charge, since the regulations defined an importer as 'including any person w h o . . . is in possession of the food or in any way entitled to the custody or control of it', it followed that the ingredients of the offence of importing for sale included 'possession for the purpose of sale'. Accordingly the statutory defence was available. However, this did not apply to the second charge and the offence in question did not fall within s 115 of the Act. Whilst the defendant might in fact have been in possession of the meat for the purpose of sale, it was not an ingredient of the offence that the meat removed was being removed 'for

12

Part I: Preliminary

the purpose of sale'. The prosecutor's appeal against the justice's decision on this point was allowed. (Challand v Bartlett [1953] 2 All ER 832, [1953] 1 WLR 1105 and Towers & Co Ltd v Gray [1961] 2 QB 351, [1961] 2 AU ER 68 considered).

(b) Physical possession of food by an agent does not divest the owner of possession in the ordinary commercial sense. Thus in Towers & Co Ltd v Gray [1961] 2 QB 351, [1961] 2 All ER 68, DC it was held that (in the context of the Merchandise Marks Act 1887) the word possession' from the points of view of the criminal law and the commercial community must be given its popular meaning in penal statutes dealing with sellers of goods. It accordingly covered a case where goods were in the custody of a bailee on terms on which the bailor could recover them on demand, the bailor being held to be in possession of the goods. The case concerned the liability of a company importing frozen chickens which bore incorrect indications of their weight on the packaging. The chickens had been sent for cold storage to third parties, and it was argued that the company could not in these circumstances be 'in possession' since the bailees, and storage company, had custody and legal possession. Lord Parker said that 'possession' bore a meaning governed by the context in which it was used. In the case of a penal statute dealing with sellers of goods, 'it is to be observed that at any rate possession in the eyes of the commercial community is a word perfectly apt to cover an owner of goods who has those goods warehoused or in the hands of some third person.' That appears from the judgment of Bransom J in City Fur Manufacturing Co Ltd v Fureenbond (Brokers) London Ltd [1937] 1 All ER 799. In that case the learned judge had said 'Possession by an agent, possession by a warehouseman or mercantile agent, is a perfectly well known form of possession in the business world, and I can see no reason for confining the meaning of it to personal possession or actual possession of the person who has sold the goods'. See also R v Sleep (1861) 25 JP 532; Webb v Baker [1916] 2 KB 753, DC which was distinguished in Towers & Co Ltd v Gray (above), and Oliver v Goodger [1944] 2 AU ER 481, DC.

(c) Food left for collection by the buyer at a place determined in the contract of sale may not be in the possession of the vendor. In Oliver v Goodger [1944] 2 All ER 481, DC a farmer had taken a churn of milk from his farm to a road side collection point in accordance with his contract with the Milk Marketing Board. It was held that the milk was not in his possession. 'He had taken the milk off his farm and had, as it were, done all he could to divest himself of possession of the milk. In a popular sense he no longer had possession' per Lord Parker, commenting on this case in Towers & Co Ltd v Gray above. In that case the supplying company had sufficient control over the chickens which it had deposited to give them possession.

Oliver v Goodger has been queried and distinguished in Kilsby v Horsford (1949) 93 Sol Jo 601 and Challand v Bartlett [1953] 2 AU ER 832, [1953] 1 WLR 1105. See also United States of America and Republic of France v Dollfus Mieq et Compagnie SA and Bank of England [1952] AC 582 at 605, HL.

There are numerous cases under general Ucensing, road traffic and dangerous drugs law, on possession but they are not helpful in the context in which this term appears in this Act, mainly because such cases tend to deal with personal possession by the accused as opposed to commercial possession relevant here.

Advertise for sale. This term, as used in s 8, for example, is new to food law. 'Advertise' is defined by s 53 as including a notice, circular, label, wrapper, invoice or other document and any pubhc announcement made oraUy or by means of producing or transmitting Ught or sound. This very broad definition includes every means of communicating the fact that food is available for sale. Although in certain

13


circumstances advertise for sale' may be synonymous with 'offer for sale' it also includes, it is submitted, an invitation to treat. In cases where a food manufacturer advertises his products he may not be offering them for sale because he does not deal directly with the public. Such advertising is, however, caught by the term 'advertise for sale' in s 8.

Person. This includes a body corporate; see the Interpretation Act 1978; Sch 1 which provides that the expression 'person' includes a body of persons corporate or unincorporate. In the sense in which the term 'person' is used in sub-s (2) supra any person who has exposed food for sale in the circumstances there described may be guilty of an offence where the section creating the offence applies. This is consistent with the principles of vicarious liability at criminal law subject to the defences in ss 20 and 21. It was held in Pearks, Gunston and Tee Ltd v Ward [1902] 2 KB 1, that there was no contrary intention in the equivalent section to s 14, then in force. In many cases the sale is conducted by an employee of the proprietor of the business. In Goodfellow v Johnson [1966] 1 QB 83, [1965] 1 All ER 941, the Divisional Court considered the legal position arising out of a sale of watered gin in a public house by a barmaid to an authorised sampling officer. As Parker LJ stated at 88, 89:

'As is well known, s 2 of the Food and Drugs Act 1955 (now s 14 of this Act) constitutes an absolute offence... The forbidden act in a provision such as this is not the parting of title by the owner but is the physical handling and handing over the goods by way of sale: in other words, the shop assistant, or in this case the barmaid, is liable, and accordingly, in view of the general principle to which I have referred, any person on whose behalf that act of handling and handing over is done is also liable.'

Where a business is being carried on by a receiver, the receiver is the person to be prosecuted; Meigh v Wickenden [1942] 2 KB 160, [1942] 2 All ER 68. See also in this connection the remarks of Alverstone CJ in Marchant v London County Council [1910] 2 KB 379.

For the application of the Act to the Crown see s 54.

In the course of a business. This phrase is not defined in this Act but see the definition of 'business' in s 1. There are also definitions in other analogous statutes such as s 137 of the Fair Trading Act 1973 which defines business as including a professional practice and other undertaking which is carried on for gain or reward, or which is an undertaking in the course of which goods or services are supplied otherwise free of charge. There are a number of authorities under the Trade Descriptions Act 1968 which, although not stricly relevant to this Act, may be instructive. They are:

Havering London Borough v Stevenson [1970] 3 All ER 609, [1970] 1 WLR 1373, QBD. Davies v Sumner [1984] 1 WLR 405, 148 JP 134, QBD; affd. on appeal [1984] 3 AU ER 831; [1984] 1 WLR 1301, HL. Abernethie v AM&JKleiman Ltd [1970] 1 QB 10, [1969] 2 All ER 790, CA. Blakemore v Bellamy (1982) 147 JP 89 (QBD). Southwark London Borough v Charlesworth (1983) 147 JP 470 (QBD). Corfield v Sevenways Garage Ltd (1984) 148 JP 648 (QBD).

As to the meaning of this term in connection with a mercantile agent, see De G orter v Attenborough & Son (1904) 21 TLR 19 andjanesich v Attenborough & Son (1910) 102 LT 605.

3. Presumptions that food intended for human consumption. (1) The following provisions shall apply for the purposes of this Act.

14

Part I: Preliminary

(2) Any food commonly used for human consumption shall, if sold or offered, exposed or kept for sale, be presumed, until the contrary is proved, to have been sold or, as the case may be, to have been or to be intended for sale for human consumption.

(3) The following, namely— (a) any food commonly used for human consumption which is found on

premises used for the preparation, storage, or sale ofthat food; and (b) any article or substance commonly used in the manufacture of food for

human consumption which is found on premises used for the preparation, storage or sale of that food,

shall be presumed, until the contrary is proved, to be intended for sale, or for manufacturing food for sale, for human consumption.

(4) Any article or substance capable of being used in the composition or preparation of any food commonly used for human consumption which is found on premises on which that food is prepared shall, until the contrary is proved, be presumed to be intended for such use.

General. This section creates a most important presumption that any food or article or substance capable of being used in the composition or preparation of food is, when on premises used for the preparation of food or in circumstances where the food is sold, offered, exposed or kept for sale, for human consumption unless the contrary is proved. Bearing in mind the provisions of s 2, it is reasonable to assume that any food etc existing in any of the circumstances covered by that section is for human consumption.

The effect of this section, when read together with s 2, and s 54, (application of the Act to the Crown), and subject to any Orders made by the Ministers under s2(l)(£), is that food, food ingredients and additives etc are for human consumption in all circumstances except for purely domestic purposes, unless the contrary is proved. It is often the case that food raw materials, ingredients, additives or finished products are on trade premises but are not ready for human consumption or have been rejected as such. In those circumstances it is prudent to keep them in separate rooms, areas or batches clearly identified as being 'not fit for human consumption' so as to contribute to the degree of proof required.

Definitions. For 'food', 'food premises', and 'premises' see s 1(3). For 'human consumption', 'article', 'substance' and 'preparation' see s 53(1). Until the contrary is proved. This does not mean 'prove beyond reasonable doubt', but merely 'prove', see Cant v Harley & Sons Ltd [1938] 2 AU ER 768.

In Hooper v Petrou (1973) 71 LGR 347, [1973] Crim LR 198, where a restaurant proprietor was charged with having mice-infested pies in his possession for the purposes of preparation for sale contrary to s 8(1 )(α) of the Food and Drugs Act 1955, the contaminated pies being in an inaccessible place in a storeroom, it was held on appeal to the Divisional Court that the similar presumption in s 111(6) of that Act was open to rebuttal either by evidence, or exceptionally, by facts speaking strongly for themselves, that the food in question was not intended for human consumption. However, in this case the rebuttal did require evidence and since the information against one of the two defendants had been dismissed on a submission of no case to answer and that defendant's evidence had not therefore been heard, it seemed impossible that the Justices could have reached that conclusion by hearing the prosecution evidence alone. The Justices' disregard of s 111 therefore, vitiated

15


the proceedings and the case was remitted to a different bench for re-hearing.

4. Ministers having functions under Act. (1) In this Act— 'the Minister' means, subject to subsection (2) below—

(a) in relation to England and Wales the Minister of Agriculture, Fisheries and Food or the Secretary of State;

(b) in relation to Scotland, the Secretary of State; 'the Ministers' means—

(a) in relation to England and Wales, the following Ministers acting jointly, namely, the Minister of Agriculture, Fisheries and Food and the Secretaries of State respectively concerned with health in England and food and health in Wales;

(b) in relation to Scotland, the Secretary of State.

(2) In this Act, in its application to emergency control orders, 'the Minister' means the Minister of Agriculture, Fisheries and Food or the Secretary of State.

5. Food authorities and authorised officers. (1) Subject to subsections (3) and (4) below, the food authorities in England and Wales are— (a) as respects each London borough, district or non-metropolitan county,

the council of that borough, district or county; (b) as respects the City of London (including the Temples), the Common

Council; (c) as respects the Inner Temple or the Middle Temple, the appropriate

Treasurer.

(2) Subject to subsection (3)(a) below, the food authorities in Scotland are the islands or district councils.

(3) Where any functions under this Act are assigned— (a) by an order under section 2 or 7 of the Public Health (Control of Dis

ease) Act 1984, to a port health authority or, by an order under section 172 of the Public Health (Scotland) Act 1897, to a port local authority;

(b) by an order under section 6 of the Public Health Act 1936, to a joint board for a united district; or

(c) by an order under paragraph 15(6) of Schedule 8 to the Local Government Act 1985, to a single authority for a metropolitan county,

any reference in this Act to a food authority shall be construed, so far as relating to those functions, as a reference to the authority to whom they are so assigned.

(4) The Ministers may by order provide, either generally or in relation to cases of a particular description, that any functions under this Act which are exercisable concurrently— (a) as respects a non-metropolitan district, by the council of that district

and the council of the non-metropolitan county; (ft) as respects the Inner Temple or the Middle Temple, by the appropriate

16

Part I: Preliminary

Treasurer and the Common Council, shall be exercisable solely by such one of those authorities as may be specified in the order.

(5) In this section— 'the appropriate Treasurer' means the Sub-Treasurer in relation to the

Inner Temple and the Under Treasurer in relation to the Middle Temple; 'the Common Council' means the Common Council of the City of Lon

don; 'port local authority' includes a joint port local authority.

(6) In this Act 'authorised officer', in relation to a food authority, means any person (whether or not an officer of the authority) who is authorised by them in writing, either generally or specially, to act in matters arising under this Act; but if regulations made by the Ministers so provide, no person shall be so authorised unless he has such qualifications as may be prescribed by the regulations.

General. This section continues the local authority based enforcement system for food law in Great Britain with certain important changes. In the metropolitan districts, the district councils remain the food authorities for all purposes under the Act except where an Order under the Local Government Act 1985 assigns functions under this Act to a single authority for a metropolitan county.

In the non-metropolitan counties both the county councils and the district councils are food authorities but under powers conferred by sub-s (4) the Ministers may provide by Order that specified functions, either generally or in relation to cases of a particular description, shall be exercisable solely by one such of those authorities. As in former legislation the Common Council of the City of London and the Treasurers of the Inner Temple and the Middle Temple are food authorities. In Scotland the islands or district councils are the food authorities.

Sub-s (3)(a) and (b) maintains the former system of food law enforcement in relation to Port Local Authorities and joint boards for a united district.

When the government announced its intention in 1986 to review food law it was hoped that the opportunity would be taken to create single tier enforcement authorities to bring greater order and uniformity to food law administration. That has not been done, but the enabling powers in sub-ss (4) and (6) empower Ministers to create such authorities in specified areas. It should also be pointed out that local authorities in England and Wales enjoy the power to combine for specified functions under s 101(5) of the Local Government Act 1972. Similar powers are conferred on Scottish local authorities by s 56(5) of the Local Government (Scodand) Act 1973. In the English metropolitan areas the district councils may combine for trading standards and related matters if such arrangements are confirmed by order of the Secretary of State under Schedule 8 to the Local Government Act 1985.

By virtue of sub-s (6) supra, an 'authorised officer' is a person authorised in writing by the food authority. Ministers are empowered for the first time in the history of food law to prescribe qualifications for authorised officers.

This section should be read with s 6. Definitions. For 'the Ministers' see s 4.

6. Enforcement of Act. (1) In this Act 'the enforcement authority', in relation to any provisions of this Act or any regulations or orders made

17


under it, means the authority by whom they are to be enforced and executed.

(2) Every food authority shall enforce and execute within their area the provisions of this Act with respect to which the duty is not imposed expressly or by necessary implication on some other authority.

(3) The Ministers may direct, in relation to cases of a particular description or a particular case, that any duty imposed on food authorities by subsection (2) above shall be discharged by the Ministers or the Minister and not by those authorities.

(4) Regulations or orders under this Act shall specify which of the following authorities are to enforce and execute them, either generally or in relation to cases of a particular description or a particular area, namely— (a) the Ministers, the Minister, food authorities and such other authorities

as are mentioned in section 5(3) above; and (b) in the case of regulations, the Commissioners of Customs and Excise; and any such regulations or orders may provide for the giving of assistance and information, by any authority concerned in the administration of the regulations or orders, or of any provisions of this Act, to any other authority so concerned, for the purposes of their respective duties under them.

(5) An enforcement authority in England and Wales may institute proceedings under any provisions of this Act or any regulations or orders made under it and, in the case of the Ministers or the Minister, may take over the conduct of any such proceedings which have been instituted by some other person.

General. Food authorities, as established by s 5, are under a duty to enforce and execute this Act for all purposes except where a duty is expressly or by necessary implication assigned to another authority. Where any provisions of this Act or regulations or orders made under it are assigned to a food authority, that food authority is the 'enforcement authority' for those purposes, see sub-ss(l) and (2). Thus, if the present structure of enforcement is maintained by regulations or orders made under sub-s (4), for example, a non-metropolitan county council in England and Wales is a food authority but an enforcement authority for composition, labelling and similar duties only and a non-metropolitan district council is a food authority but on enforcement authority for health and hygiene matters only.

Sub-s (3) empowers the Ministers to direct that particular duties imposed on food authorities shall be discharged by themselves and not by those authorities. It should also be noted that the Ministers may take over the conduct of proceedings which have been instituted by some other person under sub-s (5)

Regulations or Orders made under this Act must specify whether they are to be enforced by the Ministers, food authorities or such other authorities as are mentioned in s 5(3). In the case of regulations, such authorities may include the Commissioners of Customs and Excise; see sub-s (4). Regulations made under the Food Act 1984, or continued in force by that Act, are continued in force under this Act by s 5(3) of and Sch4, para 2(1) and (2) to this Act. Where such regulations do not specify the appropriate enforcement authority they must continue to be enforced by food authorities subject to any orders made by the Ministers under s 5(4). Definitions. For 'food authority' see s 5. For 'the Ministers' see s4.

18

Part II: Main Provinons

Shall enforce and execute. For consequences of default by a food authority, see s 42. The failure of a food authority may give rise to proceedings for mandamus; see R v Leicester Guardians [1899] 2 QB 632. It may be, however, that because s 42 provides an effective remedy to a breach of duty by a food authority, mandamus would not issue to compel such an authority to perform its duty under the Act (cf Pasmore v Oswaldwistle UDC [1898] AC 387; Stepney Borough Council vjohn Walker & Sons Ltd [1934] AC 265).

The powers conferred on authorised officers acting on behalf of a food authority under ss 9 (inspection and seizure of suspected food), 10 (improvement notices), and 12 (emergency prohibition notices) may be subject to judical review notwithstanding the fact that appeal procedures are provided by ss 37, 38, and 39. In wholly exceptional cases, where there is clear evidence that an authority has not taken into account matters which it ought to have taken into account and the failure so to do has serious consequences not capable of remedy under the appeal provisions a judicial review may lie; Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 All ER 680.

The power to institute proceedings under sub-s (5) is not exclusive and a private person is not prevented from prosecuting contraventions of the Act, see Snodgrass v Topping (1952) 116 JP 332. For the institution of proceedings by an enforcement authority see s 6(3).

Commissioners of Customs and Excise. 'Her Majesty may from time to time, under the Great Seal of the United Kingdom, appoint persons to be Commissioners of Customs and Excise, and any person so appointed shall hold office during Her Majesty's pleasure and may be paid such remuneration and allowances as the Treasury may determine' (Customs and Excise Managment Act 1979, s 6).

Partii Main Provisions Introduction. This Part of the Act re-enacts with modifications the principal criminal provisions of the Food Act 1984 (ss 7, 8, 9, 14 and 15) and confers a number of new notice and order making powers on local enforcement authorities, the courts and the Ministers (ss 10, 11, 12 and 13). These powers are unique in consumer protection law. The government has sought to achieve a balance between the need for prompt and effective control measures to deal with unsafe food but without hindering the production of, or causing unnecessary costs to the food industry.

Section 7 re-enacts with only slight changes s 1 of the Food Act 1984. It is in much the same form as the similar provisions of the Food and Drugs Acts of 1928, 1938 and 1955. Although seldom employed by enforcement authorities the basic prohibition of the addition to or abstraction from food of articles or substances so as to render the food injurious to health provides an excellent foundation to food control law.

Section 8 creates the new concept of a 'food safety requirement'. That requirement, as defined, embodies the former provisions in regard to food which is injurious to health or which is unfit for human consumption but then introduces a prohibition as to food which is contaminated, whether by extraneous matter or otherwise, such that it would not be reasonable to expect it to be used for human consumption. This provides a flexible sanction which is capable of dealing with food which, although not unfit for human consumption, may also fall outside the alternative offence of 'food not of the substance demanded', now re-enacted in s 14.

19


Shall enforce and execute. For consequences of default by a food authority, see s 42. The failure of a food authority may give rise to proceedings for mandamus; see R v Leicester Guardians [1899] 2 QB 632. It may be, however, that because s 42 provides an effective remedy to a breach of duty by a food authority, mandamus would not issue to compel such an authority to perform its duty under the Act (cf Pasmore v Oswaldwistle UDC [1898] AC 387; Stepney Borough Council vjohn Walker & Sons Ltd [1934] AC 265).

The powers conferred on authorised officers acting on behalf of a food authority under ss 9 (inspection and seizure of suspected food), 10 (improvement notices), and 12 (emergency prohibition notices) may be subject to judical review notwithstanding the fact that appeal procedures are provided by ss 37, 38, and 39. In wholly exceptional cases, where there is clear evidence that an authority has not taken into account matters which it ought to have taken into account and the failure so to do has serious consequences not capable of remedy under the appeal provisions a judicial review may lie; Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 All ER 680.

The power to institute proceedings under sub-s (5) is not exclusive and a private person is not prevented from prosecuting contraventions of the Act, see Snodgrass v Topping (1952) 116 JP 332. For the institution of proceedings by an enforcement authority see s 6(3).

Commissioners of Customs and Excise. 'Her Majesty may from time to time, under the Great Seal of the United Kingdom, appoint persons to be Commissioners of Customs and Excise, and any person so appointed shall hold office during Her Majesty's pleasure and may be paid such remuneration and allowances as the Treasury may determine' (Customs and Excise Managment Act 1979, s 6).

Partii Main Provisions Introduction. This Part of the Act re-enacts with modifications the principal criminal provisions of the Food Act 1984 (ss 7, 8, 9, 14 and 15) and confers a number of new notice and order making powers on local enforcement authorities, the courts and the Ministers (ss 10, 11, 12 and 13). These powers are unique in consumer protection law. The government has sought to achieve a balance between the need for prompt and effective control measures to deal with unsafe food but without hindering the production of, or causing unnecessary costs to the food industry.

Section 7 re-enacts with only slight changes s 1 of the Food Act 1984. It is in much the same form as the similar provisions of the Food and Drugs Acts of 1928, 1938 and 1955. Although seldom employed by enforcement authorities the basic prohibition of the addition to or abstraction from food of articles or substances so as to render the food injurious to health provides an excellent foundation to food control law.

Section 8 creates the new concept of a 'food safety requirement'. That requirement, as defined, embodies the former provisions in regard to food which is injurious to health or which is unfit for human consumption but then introduces a prohibition as to food which is contaminated, whether by extraneous matter or otherwise, such that it would not be reasonable to expect it to be used for human consumption. This provides a flexible sanction which is capable of dealing with food which, although not unfit for human consumption, may also fall outside the alternative offence of 'food not of the substance demanded', now re-enacted in s 14.

19


Section 9 repeats the substance of s 9 of the 1984 Act as to the detention, seizure and condemnation of food but increases the powers of authorised offices as to inspection of food, the issue of notices restricting the use of food and the seizure, condemnation and destruction of batches or part batches of food.

Section 10 introduces new provisions as to the issue of improvement notices by authorised officers. Where such an officer has reasonable grounds for believing that hygiene or processing regulations are being breached he can issue a notice specifying the alleged breaches and calling on the proprietor of the business to take specified measures to secure compliance. Failure to comply with an improvement notice is an offence.

Section 11 empowers a court before whom the proprietor of a food business has been convicted and where the court is satisfied that any process or treatment, the construction or state of premises or use of equipment poses a risk to health, to issue a prohibition order to the proprietor or any manager of the business. Such order may prohibit the use of the process, treatment, premises or equipment of that or any other food business. These powers replace those in ss 21 to 26 of the Food Act 1984 in relation to the closure of food premises.

Section 12 introduces another new notice and order making power to deal with health risk conditions of a more urgent nature than those for which ss 10 or 11 may be appropriate. An authorised officer may issue an emergency prohibition notice which must be confirmed by a court by the issue of an emergency prohibition order within three days from the service of the notice. If the order is not issued by the court or if no application for one is made within that period the emergency prohibition notice lapses. Where an order has been made it ceases to have effect upon the issue by the enforcement authority of a certificate to the effect that they are satisfied that the health risk condition is no longer fulfilled.

Section 13 empowers the Minister to issue emergency control orders where it appears to him that the carrying out of commercial operations with respect to food, food sources or contact materials involves or may involve imminent risk of injury to health. In such circumstances the Minister may prohibit the carrying out of such operations.

Section 14 re-enacts the long established requirements of s 2 of the Food Act 1984. The Government has wisely retained the prohibitions of the sale of food which is not of the nature or substance or quality demanded by the purchaser. It should be noted, however, that the defences in s 3 of the 1984 Act relating to operations not being carried out fraudulently or that extraneous matter was an unavoidable consequence of the process of collection or preparation have not been re-enacted, reliance being placed instead on the general defence of all reasonable precautions and all due diligence in s 21 of this Act.

Section 15 re-enacts the prohibitions as to false or misleading labels and advertisements in s 6 of the Food Act 1984. A new offence relating to the presentation of food which is misleading as to its nature, substance or quality has been added.

Sections 16 to 19 and 25 empower the Ministers to make regulations and orders for general food safety and consumer protection; for special provisions for particular foods; for the registration and licensing of food premises; for food hygiene training; and for facuities for sampling and the giving of information. The powers are very wide and it is difficult to conceive a problem arising from food manufacture or distribution which cannot be dealt with by the exercise of these powers. If used wisely and with restraint these powers should be capable of providing a sound basis for food control. If used hastily or excessively these powers could incur unnecessary

20


costs thus increasing the price of foods to consumers, or they could inhibit the development of new products. Section 20 provides for the prosecution of another person by whose act or default an offence has been committed. Section 21 provides for a single-limbed defence of 'all reasonable precautions and all due diligence' and thus brings the statutory defences under this Act into line with the Consumer Protection Act 1987 and the Weights and Measures Act 1985. If the current review of the Trade Descriptions Act 1968 results in a similar defence for prosecutions brought under that Act, all aspects of food manufacture and distribution, including safety, quality, composition, quantity and price, will fall within a common form of defence. It will then be possible for all food companies, if they so choose, to establish control systems which will enhance consumer confidence in their products and reduce the frequency of prosecutions. Section 22 retains the standard defence in consumer law of innocent publication of an advertisement. Sections 23, 24, 25 and 26 provide for the provision of food hygiene training, facilities for cleansing shellfish and supplementary provisions for regulations and orders.

Food safety

7. Rendering food injurious to health. (1) Any person who renders any food injurious to health by means of any of the following operations, namely— (a) adding any article or substance to the food; (b) using any article or substance as an ingredient in the preparation of the

food; (c) abstracting any constituent from the food; and (d) subjecting the food to any other process or treatment, with intent that it shall be sold for human consumption, shall be guilty of an offence.

(2) In determining for the purposes of this section and section 8(2) below whether any food is injurious to health, regard shall be had— (a) not only to the probable effect of that food on the health of a person

consuming it; but (b) also to the probable cumulative effect of food of substantially the same

composition on the health of a person consuming it in ordinary quantities.

(3) In this Part 'injury', in relation to health, includes any impairment, whether permanent or temporary, and 'injurious to health' shall be construed accordingly.

General. This section re-enacts the substance of s 1 of the Food Act 1984 and is derived from much earlier legislation dating back to 1872. The equivalent provisions of the 1984 Act and the Food and Drugs Act 1955 were seldom the subject of proceedings because the direct adulteration of food by the addition or subtraction of

21


substances has not been the problem which it once was and, where it has occurred, the safer and more appropriate provisions as to nature, substance and quality (see s 14), have been employed. In recent times detailed controls over the use of additives or treatments and the presence of contaminants by regulations has also reduced the need for general prohibitions such as those in this section. However, this section offers a useful bench-mark for food control and has been retained for that reason.

Note that this section does not apply to food which has become injurious to health by reason of decomposition. Positive action such as addition, subtraction or treatment is required before an offence may be committed. In cases of decomposition s 8 (food not complying with food safety requirements), or s 14 (food not of the nature or substance or quality), are appropriate.

In the past proof that one of the prohibited practices was injurious to health has been difficult to achieve. Sub-s (3) is new and is intended to ensure, when read with sub-s (2) that the potential for injury to health as well as actual injury is taken into account.

It should be noted that where a person has been injured by a defect in a food product other than agricultural produce, there may be cause for an action for damages under Part 1 of the Consumer Protection Act 1987.

Enforcement and prosecutions. For the enforcement of this section see ss 5, 6, 29, 30, 32, and 33. For defences see ss 20, 21 and 22. For liability of bodies corporate see s 36. For prosecutions see ss 34 and 35. For application to the Crown see section 54.

Definitions. For 'sell' see s 2, for 'human consumption' and 'preparation' see s 3(1).

Abstract. Failure to correct the natural tendency of a constituent of a fluid to rise to the top or to sink to the bottom of a container may amount to abstraction; ci Penrice v Brander (1921) JC 63 and Budges v Gnffin [1925] 2 KB 233. The same would appear to be true of the failure to prevent the escape of an evanescent constituent. Reducing the proportion of a constituent by dilution is not abstraction; oi Dear den v Whitely (1916) 85 LJKB 1420.

Injurious to health. In Hull v Hornsell (1902) 68 JP 591 it was held in relation to the equivalent provisions of the Act then in force, it must be proved that to constitute an offence the end product has been rendered injurious to health. However, the fact that an ingredient in the final article of food is injurious to health does not automatically render that final article so injurious because, for example, the amount of ingredient mixed may be very small and the amount of the article of food very large. However, in this section proceedings could be brought under s7(l)(o) to overcome this difficulty.

Food is not injurious merely because exceptional people are liable to be injured by it. Hoever, in Cullen v McNair (1908) 72 JP 376 the sale of a pot of cream containing a small quantity of preservative which was harmless to a normal adult in ordinary quantities but injurious to invalids and children was held to be an offence since it was injurious to a substantial portion of the community which was likely to use it. Such circumstances could not occur today because of the comprehensive EC Community wide controls as to the use of additives in foods. For a similar case concerning the use of preservatives in food see Haigh v Aerated Bread Co Ltd [1916] 1 KB 878.

In cases of food poisoning regard should be had to the provisions of the Public Health (Control of Disease) Act 1984. S 11 of that Act requires that cases of food poisoning be reported and s 18 provides for information to be given by the occupier of any premises where there is, or has been, any person suffering from food poisoning.

Intent. Most of the offences in this Act are of strict liability. However, sub-s (1)

22


requires proof of intent that the food was for sale for human consumption in that particular state.

Probable cumulative effect. Proof of the probable cumulative effect on a person of a particular food has always been difficult. Over the last 20 years, however, there have been major advances in dietary knowledge and medical evidence in relation to harmful substances. Expert evidence may now be more readily available.

Ordinary quantities. This phrase is important in limiting liability to cases where a person has consumed food in quantities appropriate to his or her sex, size and weight. The probable adverse effects of gluttony would not, it is submitted, give rise to proceedings.

8. Selling food not complying with food safety requirements. (1) Any person who— (a) sells for human consumption, or offers, exposes or advertises for sale

for such consumption, or has in his possession for the purpose of such sale or of preparation for such sale; or

(b) deposits with, or consigns to, any other person for the purpose of such sale or of preparation for such sale,

any food which fails to comply with food safety requirement shall be guilty of an offence.

(2) For the purposes of this Part food fails to comply with food safety requirements if— (a) it has been rendered injurious to health by means of any of the oper

ations mentioned in section 7(1) above; (b) it is unfit for human consumption; or (c) it is so contaminated (whether by extraneous matter or otherwise) that

it would not be reasonable to expect it to be used for human consumption in that state;

and references to such requirements or to food complying with such requirements shall be construed accordingly.

(3) Where any food which fails to comply with food safety requirements is part of a batch, lot or consignment of food of the same class or description, it shall be presumed for the purposes of this section and section 9 below, until the contrary is proved, that all of the food in that batch, lot or consignment fails to comply with those requirements.

(4) For the purposes of this Part, any part of, or product derived wholly or partly from, an animal— (a) which has been slaughtered in a knacker's yard, or of which the carcase

has been brought into a knacker's yard; or (b) in Scotland, which has been slaughtered otherwise than in a slaughter

house, shall be deemed to be unfit for human consumption.

(5) In subsection (4) above, in its application to Scotland, 'animal' means any description of cattle, sheep, goat, swine, horse, ass or mule; and para-

23


graph (b) of that subsection shall not apply where accident, illness or emergency affecting the animal in question required it to be slaughtered as mentioned in that paragraph.

General. This section introduces a concept new to food law, namely, the food safety requirement. It is similar to the general safety requirement applicable to nonfood consumer products by virtue of Part II of the Consumer Protection Act 1987 but is more narrowly defined. Food is deemed to have failed to comply with the safety requirement if it has been rendered injurious to health by any of the operations which are prohibited by s 7; or if it is unfit for human consumption (formerly an offence against s 8 of the Food Act 1984); or if it is so contaminated that it would not be reasonable to expect it to be used for human consumption in that state. This latter provision is entirely new.

Where food is contaminated by mould, is partially rancid or stale, or has minor infestation, it may not be unfit for human consumption. Under the Food Act 1984 and former statutes it was necessary to prosecute such cases under s 2 thereof, for being 'not of the substance or quality demanded', which offence was not always entirely appropriate to the circumstances or did not adequately emphasise the nature of the contamination. Sub-s 8(2)(c) attempts to bridge the gap between unfitness and substance or quality. It is akin to the concept of 'unwholesomeness' to be found in the law relating to imported food and in the Water Act 1989 and regulations made thereunder. The offence is widely drawn and should, by virtue of the words * whether by extraneous matter or otherwise', be capable of dealing with all conceivable forms of contamination.

It will be noted that the offence includes offers for sale, exposure or advertising for sale and possession for sale or of preparation for sale in addition to actual sale. The offence may therefore arise at any stage of production, processing or distribution and is not limited, as is s 14, to circumstances where a sale has taken place. It therefore follows that offences may arise from detection in premises other than retail shops or stores.

Sub-s (3) makes it clear that where a part of a batch, lot or consignment of food of the same class or description fails to comply with the food safety requirement it is presumed, until the contrary is proved, that all the food in that batch, lot or consignment fails to comply with the requirements. This provision removes a difficulty experienced under s 9 of the Food Act 1984 which authorised the seizure of food found to be unfit for human consumption without reference to quantity involved.

This section should be read with s 9, which replaces and greatly extends the powers of authorised officers in dealing with unfit food.

Definitions. For 'human consumption', 'animal', 'knackers yard', 'slaughterhouse', and 'preparation' see s 53(1). For 'injurious to health' see s 7(3). For 'sale etc' see s2.

Deposit with or consign to. These words are clearly intended to cast the net as widely as possible to ensure that food is subject to the food safety requirement at any stage between production or importation and delivery to the consumer. 'Deposit with' has a wider meaning than 'delivery' which is defined in s 61 of the Sale of Goods Act 1979 as meaning the voluntary transfer of possession from one person to another. The owner of a batch of food may, for example, deposit it with a processor after which he may recover it for sale to the public. Similarly, 'consign' would appear to allocate a batch of food to a particular destination or to send it on its way to that destination without a requirement for arrival.

Unfit for human consumption. For 'human consumption' see s 53. Whether or not

24


food is unfit for human consumption is clearly a question of fact. Extraneous objects which, although undesirable, do not necessarily render food unfit for human consumption but food which is putrid or decomposed is, beyond doubt, unfit. Local authorities considering prosecution under the Food Act 1984 were sometimes in doubt as to the appropriateness of s 8 (food unfit for human consumption) and s 2 (food not of the substance demanded) for cases concerning foreign bodies in or mould on food. The following cases reflect that problem but under this act the offence created by sub-s (1) concerns a breach of the food safety requirements and it is of littìe consequence whether the food was unfit for human consumption (sub-s2(ò)) or contaiminated (sub-s (2)(c)). The following cases are now of academic interest only.

In David Greig Ltd v Goldfinch (1961) 105, Sol Jo 367, DC the appellant's conviction for selling a pork pie bearing mould of the penicillin type, not of itself harmful to human beings, was upheld. Lord Parker CJ said that the phrase 'unfit for human consumption' meant more than unsuitable. A stale loaf would be unsuitable but not unfit. He was not prepared to say that in all cases the prosecution must prove the food injurious or dangerous. The phrase must be looked at in a broad sense. See also Kyle v Laird (1951) JC 65, 37 JP 267.

The phrase also covers the situation where food contains toxic extraneous material. In ChibnalVs Bakeries v Cope Brown [1956] Crim LR 263, a loaf of bread which contained a used and dirty bandage was held to be unfit. See also Meah v Roberts; Lansley v Roberts [1978] 1 AU ER 97, [1977] 1 WLR 1187.

However, where a cream bun contained a piece of metal (J Miller Ltd v Battersea Borough Council [1956] 1 QB 43, [1955] 3 AU ER 279), and where a loaf of bread contained a piece of string {Turner & Son Ltd v Owen [1956) 1 QB 48, [1955] 3 All ER 565) it was held in each case by the Divisional Court that the extraneous object did not render the food unfit for human consumption. Such cases would, of course, be an offence against sub-s (2)(c) and also s 14(1), by virtue of its not being of the 'substance demanded'.

The certification by a Public Analyst that food is unfit for human consumption may be important in deciding whether or not such is the case; see Barton v Unigate Dairies ltd (Ì9S6) 151 JP 128. Contaminated. Whether or not food is contaminated within the extended meaning in sub-s (2)(c) is a question of fact. It is submitted that the prohibition is so wide as to include the presence in food of foreign bodies, mould, pesticides residues, heavy metals, mite and similar infestation, radioactive contamination and unauthorised additives. Reasonable to expect it to be used for human consumption in that state. The words 'in that state' are particularly important. In R v Southampton Justices, ex p Barrow Lane & Bal lard Ltd (1983) unreported a Justice of the peace had made an order under reg 6 of the Imported Food Regulations 1968 (SI 1968 No 97) that a consignment of dates should be destroyed on the grounds that they were unwholesome. The dates had been imported and were found to be contaminated with insect excrement, webbing, dead larvae and insect fragments. The dates were to be used for the manufacture of brown sauce and it was accepted that they could be rendered fit for that purpose by processing. In allowing the appeal by the applicant for a Judicial Review the Master of the Rolls said that there were two issues. The first was whether there was power to order the destruction of materials which were 'unwholesome' as opposed to being 'unfit for human consumption'. The second was whether, in the circumstances, the Magistrate had asked himself the right question. On the first point it was held that in the absence of a definition of 'unwholesome', the regulation, being a penal regulation, should be construed restrictively and it seemed that 'unsoundness' and 'unwholesomeness' should be judged in the context of the specified use intended for the food. In this case it was

25


not disputed that the dates were intended for use as an ingredient in brown sauce for which purpose they were capable of treatment to render them wholesome, but this point was never clearly put to the Magistrate. On the second point, therefore, he had erred in that respect and his order must be quashed.

It is clear that the contamination provisions of sub-s (2)(c) are similar to the unwholesome provisions of the Imported Food Regulations 1978 and any processing intended for the food before it is offered for human consumption must be taken into account. Batch, lot or consignment. Sub-s (3) is new and makes it clear that if any part of a batch, lot or consignment fails the food safety requirements it may be assumed, until the contrary is proved, that all the food in that batch, lot or consignment fails to comply.

9. Inspection and seizure of suspected food. (1) An authorised officer of a food authority may at all reasonable times inspect any food intended for human consumption which— (a) has been sold or is offered or exposed for sale; or (b) is in the possession of, or has been deposited with or consiged to, any

person for the purpose of sale or of preparation for sale; and subsections (3) to (9) below shall apply where, on such an inspection, it appears to the authorised officer that any food fails to comply with food safety requirements.

(2) The following provisions shall also apply where, otherwise than on such an inspection, it appears to an authorised officer of a food authority that any food is likely to cause food poisoning or any disease communicable to human beings.

(3) 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 not to be removed except to some place specified in the notice; or

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

and any person who knowingly contravenes the requirements of a notice under paragraph (a) above shall be guilty of an offence.

(4) Where the authorised officer exercises the powers conferred by subsection (3)(a) above, he shall, as soon as is reasonably practicable and in any event within 21 days, determine whether or not he is satisfied that the food complies with food safety requirements and— (a) if he is so satisfied, shall forthwith withdraw the notice; (b) if he is not so satisfied, shall seize the food and remove it in order to

have it dealt with by a justice of the peace.

(5) Where an authorised officer exercises the powers conferred by subsection (3)(i) or (4)(é) above, he shall inform the person in charge of the

26

Part II: Main Provisions

food of his intention to have it dealt with by a justice of the peace and— (a) any person who under section 7 or 8 above might be liable to a pros

ecution in respect of the food shall, if he 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; and

(b) that justice of the peace may, but need not, be a member of the court before which any person is charged with an offence under that section in relation to that food.

(6) If it appears to a justice of the peace, on the basis of such evidence as he considers appropriate in the circumstances, that any food falling to be dealt with by him under this section fails to comply with food safety requirements, he 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.

(7) If a notice under subsection (3)(a) above is withdrawn, or the justice of the peace by whom any food falls to be dealt with under this section refuses to condemn it, the food authority shall compensate the owner of the food for any depreciation in its value resulting from the action taken by the authorised officer.

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

(9) In the application of this section to Scotland— (a) any reference to a justice of the peace includes a reference to the sheriff

and to a magistrate; (b) paragraph (b) of subsection (5) above shall not apply; (c) any order made under subsection (6) above shall be sufficient evidence

in any proceedings under this Act of the failure of the food in question to comply with food safety requirements; and

(d) the reference in subsection (8) above to determination by arbitration shall be construed as a reference to determination by a single arbiter appointed, failing agreement between the parties, by the sheriff.

General. This section re-enacts the provisions of s 9 of the Food Act 1984 in substantially modified form and makes new provision for the issue of notices by authorised officers that food may not be used for human consumption or restricting the movement of food; the seizure and submission of food to a Justice of the Peace for condemnation; the payment of compensation; and the submission of disputes as to compensation to arbitration. The new provisions are: (a) an authorised officer may inspect food at all reasonable times at any stage

between production and distribution to check whether it complies with the food safety requirements and, where it does not so comply, take the action described below;

27


(b) the action specified below may also be taken where it appears that the food is likely to cause food poisoning or any disease communicable to human beings and the circumstances have been discovered otherwise than by way of inspection;

(c) in the circumstances given above the officer may issue a notice that the food is not to be used for human consumption and is either not to be removed or may only be removed to a specified place;

(d) contravention of such a notice is an offence; (e) if, after further investigation, the officer is satisfied that the food complies with

the food safety requirements he must withdraw the notice; ( / ) if he is not satisfied that the food complies with the food safety requirements he

must seize and remove it to have it dealt with by a Justice of the Peace; (g) if it appears to a Justice of the Peace, having heard evidence, that food

submitted to him fails to comply with the food safety requirements he must condemn it and order that it be destroyed or disposed of so as to prevent it being used for human consumption;

(A) the Justice may also order that expenses incurred in connection with the disposal or destruction of the food be defrayed by the owner of the food;

(t) if a notice is withdrawn or a Justice of the Peace refuses to condemn the food, the food authority must compensate the owner of the food for any depreciation in its value resulting from the action taken by the officer and any dispute in connection with the compensation must be referred to arbitration.

Definitions. For 'officer', 'human consumption', and 'preparation', see s 3(1). For 'authorised officer' see s 5(6). For 'food safety requirements' see s 8(2). For 'sale etc' see s2.

All reasonable times. What is a reasonable time is a question of fact. Under former legislation there was a general proposition that times when food businesses are ordinarily open for business are reasonable. Thus in Small v Buckley (1875) 40 JP 119 it was held that a Sunday afternoon when a shop is closed is not a reasonable time. Again in Davies v Winstanley (1930) 95 JP 21 it was held that the right to inspect a dangerous drugs register at all reasonable times was avoided when, the shop being open, the register was not available being locked in a cupboard the key to which was in the possession of the manager who was absent. Bearing in mind that the purpose of this section and this Act generally is to protect the public against harmful food it is submitted that the foregoing authorities may not be appropriate to all circumstances.

Inspect. This term is not defined in this Act but regard should be had to regulations made under s 17 in implementation of Community law and, in particular, Council Directive 89/397/EEC on the Official Control of Foodstuffs.

Food poisoning or any disease communicable to human beings. For notification of cases of food poisoning see the Public Health (Control of Disease) Act 1984.

Give notice. The notice must be in writing and be given in accordance with ss 49 and 50.

Seize the food and remove it. In most cases concerning large batches, lots or consignments of food it will be impracticable for an authorised officer to seize and remove it. He must therefore exercise his powers under sub-s9(3)(a)(ii). The notice given to that end must be in writing (see s 49), and give specific and unambiguous instructions.

Justice of the Peace. A Justice of the Peace on the supplemental list may not act under this section: see the Justices of the Peace Act 1949. The validity of a warrant granted by him is not, however, affected.

28


Know, knowingly. For the offence against sub-s 9(3) to be proved the prosecutor must prove that the defendant had a guilty mind, ie that he knew both of the existence of the notice and of its contents; Woolmington v DPP [1935] AC 462, [1935] 25 Cr App Rep 72; and Gaumont British Distributors Ltd v Henry [1939] 2 KB 711, [1939] 2 AU ER 808.

In Taylors's Central Garages (Exeter) Ltd v Roper (1951) 115 JP 445 at 449, Devlin J drew a distinction between three degrees of knowledge. The first is actual knowledge. In R v Kemp [1964] 2 QB 341, [1964] 1 AU ER 649, the Court of Criminal Appeal held that the state of mind of a person is material and it is relevant therefore to consider whether there was an intent to deceive. Actual knowledge may be inferred from the nature of the act that was done, for no one can prove the state of another's mind. It may thus be found to exist even if the defendant gives evidence to the contrary.

The second is knowledge of the second degree, where the defendant had shut his eye to an obvious means of knowledge, or deliberately refrained from making enquiries, the results of which he did not care to have. This constitutes in law actual knowledge of the facts in question, see Knox v Boyd (1941) JC 82 at 86.

There is a distinction between knowledge to the second degree and the third sort of knowledge which is generally known in law as constructive knowledge. This involves merely neglecting to make such inquiries as a reasonable and prudent person would make. This is not actual knowledge, see London Computator Ltd v Seymour [1944] 2 All ER 11 and Mallon v Allon [1964] 1 QB 385, [1963] 3 AU ER 843 at 394 and 847 respectively. Thus, mere carelessness is not enough.

There have been numerous cases under the Licensing Act 1964 and earlier licensing statutes which may be relevant to the interpretation of the term 'knowingly' in this Act. For example, in Bloomfield v Williams (1970) The Times, 25 February, the Divisional Court (Lord Parker CJ, Ashworth and Donaldson JJ) held that on a charge of knowingly making a false statement in an application for a licence it was not sufficient that the person making the statement had the means of knowledge that the statement was false; (here the defendant had not read through the application form which had been filled in by someone else, and he was therefore not aware of what he was declaring). Hence he was held not to know that what he was declaring was false. In Goodwin v Baldwin (1974) 138 JP Jo 225, the Divisional Court (Lord Widgery CJ, MacKenna and May JJ) held that the presence of the word 'knowingly' in s 169(1) of the Licensing Act 1964 required either actual knowledge or the wilful avoidance of knowledge. It was held on the facts that there had not been any indication of wilful or deliberate blindness on the part of the licensee in serving liquor to girls who were under age. See also Ross v Moss [1965] 2 QB 396, [1965] 3 All ER 145; Linnett v Metropolitan Police Commissioner [1946] KB 20, [1946] 1 AU ER 380; and Vane v Yiannopoullos [1964] 2 QB 739, [1964] 2 AU ER 820.

There are also a number of judgments on the meaning of the term 'knowing or beUeving them to be stolen' in s 22(1) of the Theft Act 1968 which may be of interest but perhaps not binding because of the different wording from that of this Act and the entirely different circumstances of the cases:

Atwal v Massey [1971] 3 AU ER 881—it is not sufficient merely to show that goods were received in circumstances that would lead a prudent man to beheve that they had been stolen.

R v Hall (1985) 129 Sol Jo 283, CA—belief is something short of knowledge. An obvious inference that goods were stolen by a reasonable person was sufficient to satisfy the burden of proof but mere suspicion was not.

For the liability of a body corporate for the acts of its agents see DPP v Kent and Sussex Contractors Ltd [1944] KB 146; [1944] 1 AU ER 119; R v ICR Haulage Ltd

29


[1944] KB 551, [1944] 1 All ER 691; and Moore v I Bresler Ltd [1944] 2 AU ER 515. For a general discussion of strict liability, mens rea and vicarious liability see

L J Edwards, Mens Rea in Statutory Offences.

Guilty of an offence. For prosecutions see s 35, for time limits on prosecutions see s 34, for offences by corporations see s 36 and for appeals see ss 37 and 38.

Satisfied. There is authority for saying that if an authorised officer is honestly satisfied or not satisfied, it is irrelevant whether or not he has taken reasonable care to satisfy himself; see Harward v Hackney Union and Frost (1898) 14 TLR 306, CA, and Everett v Griffiths [1920] 3 KB 163, CA; affd., [1921] 1 AC 361, HL. The medical officer is the sole judge of the matter: see eg Re City of Plymouth (City Centre) Declaratory Order 1946, Robinson v Minister of Town and Country P fanning [1947] KB 702, [1947] 1 AU ER 851, CA; and Re Beck andPollitzer's Application [1948] 2 KB 339; and see also Thorneloe and Clarkson Ltd v Board of Trade [1950] 2 AU ER 245, and Smith v East Elbe RDC [1956] AC 736, [1956] 1 All ER 855. See however, Ross-ClunL· v Papadopoullos [1958] 2 AU ER 23, PC, and Customs and Excise Commrs v Cure and Deeley Ltd [1962] 1 QB 340, [1961] 3 All ER 641.

Forthwith. There is no difference between 'forthwith' and 'immediately', per Cockburn LCJ in R v Berkshire Justices (1879) 4 QBD 469, 43 JP 607. The test of immediacy in relation to the word 'forthwith' remains stringent, see R v Southam, ex parte Lamb (1881) 19 Ch D 169, CA and in re Musovitch, ex parte Musovitch [1939] Ch 694, [1939] 1 AU ER at 139, CA it was held 'having regard to the construction which was put on the word 'forthwith', which is peremptory, and admits no interval of time . . . save as may be imposed by circumstances which cannot be avoided', that seven days afterwards was not forthwith; nor is two days (Parsons v Birmingham Dairy Co (1882) 9 QBD 172, 46 JP 727). See also Brown v Bonnyrigg and Lasswade Magistrates (1936) SC 258; Hillingdon London Borough Council v Cutler [1968] 1 QB 124, [1967] 2 AU ER 361. However, an inspector who entered an inn two minutes after his agent had bought gin was held to have divided the same forthwith (Somerset v Miller (1890) 54 JP 614; Stace v Smith (1880) 45 JP 141; Garforth v Esam (1892) 56 JP 521).

Condemn. Condemnation of food in accordance with sub-s (6) must precede an order that the food be destroyed or disposed of and for payment of expenses. The condemnation must be a positive act by the Justice of the Peace based on the weight put upon such evidence as he considers appropriate in the circumstances.

Expenses reasonably incurred. The similar provisions of s 9 of the Food Act 1984 occasionally gave rise to difficulties in areas where there were no facilities for the destruction of food and it was necessary for the condemned food to be transported a considerable distance. It is submitted that the expenses must be reasonable bearing in mind the most appropriate means of destruction having regard to environmental considerations and the provisions of the Environmental Protection Act 1990.

Owner of the food. Expenses to be paid in accordance with an order made under sub-s (6) must be paid by the owner and not the possessor where these are not the same person. Liability to pay therefore falls on the person having legal title to the food.

Compensate. The provisions for payment of compensation in sub-s (7) are similar to those in s 9(4) of the Food Act 1984 but are extended to 'the action taken by the authorised officer' instead of 'seizure and removal'. This is to cover the issue of notices by the officer under sub-s (3).

Arbitration. The provisions of s 109 of the Food Act 1984, which imposed special conditions for arbitration, have not been re-enacted. Accordingly, any arbitration arising from sub-s (8) can be conducted by an independent arbitrator acting in

30


accordance with the Arbitration Act 1975.

10. Improvement notices. If an authorised officer of an enforcement authority has reasonable grounds for believing that the proprietor of a food business is failing to comply with any regulations to which this section applies, he may, by a notice served on that proprietor (in this Act referred to as an 'improvement notice')— (a) state the officer's grounds for believing that the proprietor is failing to

comply with the regulations; (b) specify the matters which constitute the proprietor's failure so to com

ply; (c) specify the measures which, in the officer's opinion, the proprietor

must take in order to secure compliance; and (d) require the proprietor to take those measures, or measures which are at

least equivalent to them, within such period (not being less than 14 days) as may be specified in the notice.

(2) Any person who fails to comply with an improvement notice shall be guilty of an offence.

(3) This section and section 11 below apply to any regulations under this Part which make provision— (a) for requiring, prohibiting or regulating the use of any process or treat

ment in the preparation of food; or (b) for securing the observance of hygienic conditions and practices in con

nection with the carrying out of commercial operations with respect to food or food sources.

General. This section provides for the first of a series of new powers conferred on enforcement authorities, the courts, and the Ministers to issue notices and orders to prevent and control risks to health arising from food, equipment used for the manufacture and sale of food and food premises. This section, which was controversial and much amended during its Parliamentary passage, empowers an authorised officer of an enforcement authority to issue an improvement notice where he has reasonable grounds for believing that the proprietor of a food business is failing to comply with certain regulations.

The fundamental objection to this power is that it requires an officer, usually not trained or qualified in law, to make a judgment as to whether statutory provisions are being contravened. This objection was only partially mitigated by an amended sub-s (l)(a) and (b) which requires the officer to state his grounds for believing that the proprietor is in breach of the regulations; to specify the matters which constitute such failure; to specify the measures which ought to be taken to rectify the breach; and to require the proprietor to take those measures within 14 days of the issue of the notice.

A further objection to this section is that, unlike s 12, there is no provision for payment of compensation by the enforcement authority where an improvement notice is issued in error or unreasonably. Appeal by a person aggrieved by the service of an improvement notice may be made to a magistrates' court see s 37. Definitions. For 'proprietor', 'preparation', and 'treatment' see s 53(1). For 'authorised officer' see s 5(6). For 'food', 'food source', 'food business' see s 1.

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Grounds for believing. This phrase approximates to the more usual Reasonable cause to believe' which has received some judicial interpretation. InRv Banks [1916] 2 KB 621; R v Harrison [1938] 3 All ER 134; and Nakkuda AH vjayaratine [1951] AC 66, PC it was held, inter aha, that the words 'reasonable cause to believe' require not only that the person in question had reasonable cause to believe but also that he did actually believe. In the Scottish case of Readers Digest Association Ltd v Pirie (1973) SLT 170, the High Court of Judiciary gave judgment in a case brought under the UnsoHcited Goods and Services Act 1971, s 2(1). The Association had sent copies of its magazine and requests for payment to a subscriber after he had cancelled his subscription. This was done at the direction of a computer which had not been informed of the cancellation by junior staff who had received the subscriber's notice of cancellation. The court held that the Association had reasonable cause to believe that payment was due and that the knowledge of its junior staff could not be imputed to it.

Within 14 days. The first day is excluded, Radcliffe v Bartholomew [1892] 1 QB 161.

Notice. An improvement notice must be served in accordance with s 50.

Regulations. There is at present no definitive list of the regulations which are subject to this section and s 11 by virtue of sub-s (3). The test as to applicability is whether the subject matter of the regulations, in whole or in part, fall within parameters of sub-s (3)(a) or (b). Quaere, for example, whether regulations controlling the use of additives are subject to this sub-section.

Certain regulations dealing with matters which would be subject to this subsection were made under the European Communities Act 1972 and are not therefore applicable to these provisions. It is open to Ministers to amend those regulations by virtue of their powers under s 17, so as to bring them within the scope of this section and s 11.

The regulations which appear to be specified in sub-s (3) are:

Milk and Dairies (General) Regulations 1959 (SI 1959 No 277) Food Hygiene (Docks, Carriers etc) Regulations 1960 (SI 1960 No 1602). Liquid Egg (Pasteurisation) Regulations 1963 (SI 1963 No 1503) Meat (Treatment) Regulations 1964 (SI 1964 No 19) Food Hygiene (Market Stalls and Delivery Vehicles) Regulations 1966 (SI 1966

No 791) Food (Control of Irradiation) Regulations 1967 (SI 1967 No 385) Food Hygiene (General) Regulations 1970 (SI 1970 No 1172) Poultry Meat (Hygiene) Regulations 1976 (SI 1976 No 1209) Food Hygiene (Ships) Regulations 1979 (SI 1979 No 27) Meat (Sterilisation and Staining) Regulations 1982 (SI 1982 No 1018) Milk-based Drinks (Hygiene and Heat Treatment) Regulations 1983 (SI 1983

No 1508) Milk and Dairies (Heat Treatment of Cream) Regulations 1983 (SI No 1509) Imported Food Regulations 1984 (SI 1984 No 1918) Fresh Meat Export (Hygiene and Inspection) Regulations 1987 (SI 1987 No 2237) Milk (Special Designation) Regulations 1988 (SI 1988 No 2204) Milk and Dairies (Semi-skimmed and Skimmed Milk) (Heat Treatment and

Labelling) Regulations 1988 (SI 1988 No 2206)

Regulations subject to this section which were made under or continued in operation by the Food Act 1984 continue in operation under this Act by virtue of s 59(3) and Sch4, and ss 16 and 17 of the Interpretation Act 1978.

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11. Prohibition orders. (1) If— (a) the proprietor of a food business is convicted of an offence under any

regulations to which this section applies; and (b) the court by or before which he is so convicted is satisfied that the

health risk condition is fulfilled with respect to that business, the court shall by an order impose the appropriate prohibition.

(2) The health risk condition is fulfilled with respect to any food business if any of the following involves risk of injury to health, namely— (a) the use for the purposes of the business of any process or treatment; (b) the construction of any premises used for the purposes of the business,

or the use for those purposes of any equipment; and (c) the state or condition of any premises or equipment used for the pur

poses of the business.

(3) The appropriate prohibition is— (a) in a case falling within paragraph (a) of subsection (2) above, a prohib

ition on the use of the process or treatment for the purposes of the business;

(b) in a case falling within paragraph (b) of that subsection, a prohibition on the use of the premises or equipment for the purposes of the business or any other food business of the same class or description;

(c) in a case falling within paragraph (c) of that subsection, a prohibition on the use of the premises or equipment for the purposes of any food business.

(4) I f -(a) the proprietor of a food business is convicted of an offence under any

regulations to which this section applies by virtue of section 10(3)(ò) above; and

(b) the court by or before which he is so convicted thinks it proper to do so in all the circumstances of the case,

the court may, by an order, impose a prohibition on the proprietor participating in the management of any food business, or any food business of a class or description specified in the order.

(5) As soon as practicable after the making of an order under subsection (1) or (4) above (in this Act referred to as a 'prohibition order'), the enforcement authority shall— (a) serve a copy of the order on the proprietor of the business; and (b) in the case of an order under subsection (1) above, affix a copy of the

order in a conspicuous position on such premises used for the purposes of the business as they consider appropriate;

and any person who knowingly contravenes such an order shall be guilty of an offence.

(6) A prohibition order shall cease to have effect— (a) in the case of an order under subsection (1) above, on the issue by the

enforcement authority of a certificate to the effect that they are satisfied

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that the proprietor has taken sufficient measures to secure that the health risk condition is no longer fulfilled with respect to the business;

(6) in the case of an order under subsection (4) above, on the giving by the court of a direction to that effect.

(7) The enforcement authority shall issue a certificate under paragraph (a) of subsection (6) above within three days of their being satisfied as mentioned in that paragraph; and on an application by the proprietor for such a certificate, the authority shall— (a) determine, as soon as is reasonably practicable and in any event within

14 days, whether or not they are so satisfied; and (b) if they determine that they are not so satisfied, give notice to the pro

prietor of the reasons for that determination.

(8) The court shall give a direction under subsection (6)(6) above if, on an application by the proprietor, the court thinks it proper to do so having regard to all the circumstances of the case, including in particular the conduct of the proprietor since the making of the order; but no such application shall be entertained if it is made— (a) within six months after the making of the prohibition order; or (b) within three months after the making by the proprietor of a previous

application for such a direction.

(9) Where a magistrates' court or, in Scotland, the sheriff makes an order under section 12(2) below with respect to any food business, subsection (1) above shall apply as if the proprietor of the business had been convicted by the court or sheriff of an offence under regulations to which this section applies.

(10) Subsection (4) above shall apply in relation to a manager of a food business as it applies in relation to the proprietor of such a business; and any reference in subsection (5) or (8) above to the proprietor of the business, or to the proprietor, shall be construed accordingly.

(11) In subsection (10) above 'manager', in relation to a food business, means any person who is entrusted by the proprietor with the day to day running of the business, or any part of the business.

General. This section introduces new powers for the courts to make prohibition orders replacing the closure and emergency order powers in ss 14, 21 and 22 of the Food Act 1984. Those powers were concerned solely with the closure of, or restriction as to the use of, premises. These new powers go much further in that a court, before whom the proprietor of a food business has been convicted, on being satisfied that the health risk condition is fulfilled, must prohibit the use of processes, treatments or equipment, as appropriate, in addition to or instead of the premises. Additionally, the court may prohibit the food business proprietor or a manager who has been convicted from participating in the management of any food business as specified in the order.

The health risk condition is prescribed in sub-s (2) and the test is whether there is a risk of injury to health arising from the use of any process or treatment, the

34


construction of any premises, or the use for those purposes of any equipment, or the state or condition of any premises or equipment used for the purposes of the business. Whether or not the health risk condition is fulfilled is, therefore, a question of fact to be determined in each case.

The appropriate prohibition is prescribed in sub-s (3) but additionally the court may prohibit the proprietor of the food business or any manager of that business from participating in the management of any food business or any food business of a class or description specified in the order by virtue of sub-ss (4) and (10). It should be noted that the appropriate prohibition is not limited to the food business which was the subject of the proceedings but, in the circumstances falling within sub-ss (3)(b) and (c), (4) and (10), it may be applied to any food business.

As soon as practicable after the making of an order the enforcement authority is required to deal with copies of the order as laid down in sub-s (5). The order ceases to have effect when the enforcement authority is satisfied that the health risk condition is no longer fulfilled and takes the action required by sub-s (6) within the time limits laid down by sub-s (7). A prohibition order in relation to premises, equipment and processes ceases to have effect on certification by the enforcement authority but an order relating to the proprietor or a manager of a food business only ceases to have effect after the giving by the court of a direction to that effect (see sub-s (6)(ft) and (8)).

It is an offence to knowingly contravene a prohibition order. Appeal against a decision of an enforcement authority to refuse to issue a certificate under sub-s (6)(a) is to a magistrates' court or, in Scotland, to the sheriff.

Definitions. For 'food business', 'food premises' and 'premises' see s 1(3). For 'proprietor', 'equipment', 'contravene' and 'treatment' see s 53(1). For 'manager' see sub-s (lì) supra.

Use, used. These terms, which have given rise to litigation in the context of former food statutes and the Weights and Measures Act 1985, should present no such difficulty in this section. The question is merely whether the process, treatment or premises are being used for the purposes of the food business concerned and not the person by whom they were being used.

Sufficient measures; sub-s (6)(a). The court making the prohibition order is not obliged to specify the measures to be taken to secure that the health risk condition is no longer fulfilled.

Within 3 days. The first day is excluded; Radcliffe v Bartholomew [1892] 1 QB 161.

Manager. The extension of prohibition orders to managers as defined in sub-s (11) was a late amendment to the Bill during its Parliamentary progress and it breaks new ground in trading legislation. It was originally believed that it was sufficient to empower the courts to prohibit the food business proprietor from carrying on business and such prohibition, especially if the proprietor was a corporate body, would ensure that culpable staff would find themselves unemployed where such an order was made. The government accepted that a manager whose activities posed a health risk to the public ought to be debarred from seeking other employment until the order ceased to have effect.

The inclusion of the words 'or any part of the business' in sub-s (11) may well give rise to difficulties where duties within a food business are not clearly stated in job specifications.

12. Emergency prohibition notices and orders. (1) If an authorised officer of an enforcement authority is satisfied that the health risk condition is fulfilled with respect to any food business, he may, by a notice served on

35


the proprietor of the business (in this Act referred to as an 'emergency prohibition notice'), impose the appropriate prohibition.

(2) If a magistrates' court or, in Scotland, the sheriff is satisfied, on the application of such an officer, that the health risk condition is fulfilled with respect to any food business, the court or sheriff shall, by an order (in this Act referred to as an 'emergency prohibition order'), impose the appropriate prohibition.

(3) Such an officer shall not apply for an emergency prohibition order unless, at least one day before the date of the application, he has served notice on the proprietor of the business of his intention to apply for the order.

(4) Subsections (2) and (3) of section 11 above shall apply for the purposes of this section as they apply for the purposes of that section, but as if the reference in subsection (2) to risk of injury to health were a reference to imminent risk of such injury.

(5) As soon as practicable after the service of an emergency prohibition notice, the enforcement authority shall affix a copy of the notice in a conspicuous position on such premises used for the purposes of the business as they consider appropriate; and any person who knowingly contravenes such a notice shall be guilty of an offence.

(6) As soon as practicable after the making of an emergency prohibition order, the enforcement authority shall— (a) serve a copy of the order on the proprietor of the business; and (b) affix a copy of the order in a conspicuous position on such premises

used for the purposes of that business as they consider appropriate; and any person who knowingly contravenes such an order shall be guilty of an offence.

(7) An emergency prohibition notice shall cease to have effect— (a) if no application for an emergency prohibition order is made within the

period of three days beginning with the service of the notice, at the end of that period;

(b) if such an application is so made, on the determination or abandonment of the application.

(8) An emergency prohibition notice or emergency prohibition order shall cease to have effect on the issue by the enforcement authority of a certificate to the effect that they are satisfied that the proprietor has taken sufficient measures to secure that the health risk condition is no longer fulfilled with respect to the business.

(9) The enforcement authority shall issue a certificate under subsection (8) above within three days of their being satisfied as mentioned in that subsection; and on an application by the proprietor for such a certificate, the authority shall—

36


(a) determine, as soon as is reasonably practicable and in any event within 14 days, whether or not they are so satisfied; and

(ft) if they determine that they are not so satisfied, give notice to the proprietor of the reasons for that determination.

(10) Where an emergency prohibition notice is served on the proprietor of a business, the enforcement authority shall compensate him in respect of any loss suffered by reason of his complying with the notice unless— (a) an application for an emergency prohibition order is made within the

period of three days beginning with the service of the notice; and (6) the court declared itself satisfied, on the hearing of the application, that

the health risk condition was fulfilled with respect to the business at the time when the notice was served;

and any disputed question as to the right to or the amount of any compensation payable under this subsection shall be determined by arbitration or, in Scotland, by a single arbiter appointed, failing agreement between the parties, by the sheriff.

General. This section provides for emergency prohibition notices and orders to deal with circumstances which pose an imminent risk of injury to health. An emergency prohibition notice may be issued by an authorised officer of an enforcement authority where he is satisfied that the health risk condition is fulfilled. The health risk condition and the prohibitions which may be applied are the same as those in s 11(2) and (3) save for the requirement that the risk of injury to health must be an imminent one. It should be noted that this section does not provide for prohibitions on food business proprietors or managers.

An emergency prohibition notice must be served and dealt with by the enforcement authority in accordance with sub-ss (3), (5) and (6), following which an application must be made to a magistrates' court (the sheriff in Scodand) for the issue of an emergency prohibition order within three days of the service of the notice. It is an offence to knowingly contravene an emergency prohibition notice or order.

The notice ceases to have effect if no such application is made to a court within the three day period or if an application is so made, on the determination or abandonment of the application. Unless the application for an order is made within the three day period and the court declares itself satisfied on hearing the application that the health risk condition was fulfilled the enforcement authority must compensate the proprietor of the food business for any loss suffered by reason of his complying with the notice. Any dispute as to compensation must be settled by arbitration in accordance with sub-s(lO).

An emergency prohibition notice or order ceases to have effect on the issue by the enforcement authority of a certificate to the effect that they are satisfied that the proprietor has taken sufficient measures to secure that the health risk condition is no longer fulfilled. The authority must determine whether or not they are so satisfied as soon as reasonably practicable and in any event within 14 days and issue the certificate within three days of being so satisfied. If they are not so satisfied they must give notice to the proprietor of the reasons for that determination (sub-ss (8) and (9)).

Appeal against a decision of an enforcement authority to refuse to issue a certificate under sub-s (8) may be made to a magistrates' court or, in Scotland, to the sheriff (s 38(1 )(b)). Appeal against the decision of a court to make an emergency prohibition order is to the Crown Court (s 39(b)).

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Definitions. For 'authorised officer' see s 5(6). For 'enforcement authority' see s 6(1). For 'food business', 'business' and 'premises' see s 1(3). For 'contravention' and 'proprietor' see s 53(1).

13. Emergency control orders. (1) If it appears to the Minister that the carrying out of commercial operations with respect to food, food sources or contact materials of any class or description involves or may involve imminent risk of injury to health, he may, by an order (in this Act referred to as an 'emergency control order'), prohibit the carrying out of such operations with respect to food, food sources or contact materials of that class or description.

(2) Any person who knowingly contravenes an emergency control order shall be guilty of an offence.

(3) The Minister may consent, either unconditionally or subject to any condition that he considers appropriate, to the doing in a particular case of anything prohibited by an emergency control order.

(4) It shall be a defence for a person charged with an offence under subsection (2) above to show— (a) that consent had been given under subsection (3) above to the contra

vention of the emergency control order; and (b) that any condition subject to which that consent was given was com

plied with.

(5) The Minister— (a) may give such directions as appear to him to be necessary or expedient

for the purpose of preventing the carrying out of commercial operations with respect to any food, food sources or contact materials which he believes, on reasonable grounds, to be food, food sources or contact materials to which an emergency control order applies; and

(b) may do anything which appears to him to be necessary or expedient for that purpose.

(6) Any person who fails to comply with a direction under this section shall be guilty of an offence.

(7) If the Minister does anything by virtue of this section in consequence of any person failing to comply with an emergency control order or a direction under this section, the Minister may recover from that person any expenses reasonably incurred by him under this section.

General. This section empowers the Minister to make emergency control orders in respect of commercial operations with respect to food etc which may involve imminent risk of injury to health. He may give directions for the prevention of commercial operations and may do anything else which appears to him to be necessary or expedient for the purpose of control orders. He may also consent, either unconditionally or subject to conditions, to the doing of anything prohibited by an emergency control order. It is an offence to knowingly contravene an

38


emergency control order. The purpose of the very wide powers contained in this section is to enable the

Minister to deal effectively with an emergency which is too widespread or too serious for it to be left to enforcement and food authorities to deal with under their powers in ss 9 and 11. These powers are complementary to those on Part 1 of the Food and Environment Protection Act 1985, as amended by s 51 of this Act, which are used in respect of nuclear or chemical contamination of food over a wide area. Cases which might be dealt with by use of the powers in this section are the contamination of packaged food which has been distributed across the country or the possible contamination of milk by the use of cattle feeding stuffs containing heavy metals or other contaminants.

Definitions. For 'the Minister' see s 4. For ' commercial operations', 'food source', 'contact materials' see s 1(3).

Consumer protection

14. Selling food not of the nature or substance or quality demanded. (1) Any person who sells to the purchaser's prejudice any food which is not of the nature or substance or quality demanded by the purchaser shall be guilty of an offence.

(2) In subsection (1) above the reference to sale shall be construed as a reference to sale for human consumption; and in proceedings under that subsection it shall not be a defence that the purchaser was not prejudiced because he bought for analysis or examination.

General. This section re-enacts the provisions of s 2 of the Food Act 1984. The offences created by this section have been the foundation of food law in the United Kingdom since they first appeared in s 6 of the Food and Drugs Act 1875. The three offences contained in this section have provided a flexible and far reaching means of preventing the adulteration, contamination and misdescription of food and have been followed in the Agriculture Act 1970 with respect to animal feeding stuffs and the Medicines Act 1968 with respect to medicinal products. During the past 100 years by far the greatest number of prosecutions in respect of food have been brought under these provisions.

The alternative offences of nature, or substance or quality remain disjunctive as they have been since the Food and Drugs (Adulteration) Act 1928, although the drafting of the section has reverted to the form used in the Food and Drugs Act 1955 and the much improved form in the 1984 Act, for reasons which are not at all apparent, has been dropped.

It should be noted that the special defences in s 3 of the Food Act 1984 applicable to offences under these provisions have not been re-enacted. Those defences applied where, in specified circumstances, the defendant could prove that certain operations had not been carried out fraudulently or notice was given stating the nature of the operation. Similarly, s 3(2) ofthat Act, which provided that where extraneous matter was found in food it was a defence to prove that the presence of the matter was an unavoidable consequence of the process of collection or preparation, has not been re-enacted. Reliance in all such circumstances must now be placed on the general defence of all reasonable precautions and all due diligence in s 21.

The special provisions in s 3(3) of the 1984 Act relating to diluted spirits have also been dropped because they are no longer relevant by virtue of Council Regulation (EEC) No 1576/89 which lays down, inter aha, minimum alcoholic strengths for spirit drinks.

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Definitions. For 'food' see s 1(1). For 'sell' see s 2(1). For 'substance' and 'analysis' see s 53(1). For 'examination' see s 28(2).

Prosecutions. The wide application of this section is apparent. Offences of 'substance' or 'quality' may be an alternative to proceedings under s 8 and all three offences may be used as an alternative to s 15. In the past the offence of 'substance' has often been used to deal with mould or foreign bodies in food because of doubt as to whether such circumstances constituted an offence of 'unfitness for human consumption'. However, under this Act the introduction of the food safety requirement in s 8 makes it appropriate to bring proceedings under that section. It should also be noted that by virtue of s 18 of the Interpretation Act 1978 offences involving a false or misleading description of food (which may give rise to proceedings under this section or s 16) may also be brought under s 1 of the Trade Descriptions Act 1968, see O'Keefe's Law Relating to Trade Descnptions, Butterworths.

Under the Food Act 1984 and its predecessors, it has been common for prosecutions to be brought in respect of 'substance or quality' for foreign bodies, mould etc in food. Although such cases can pose a serious threat to the safety of consumers, prosecutions can sometimes be trivial. There being no single limbed defence of 'all reasonable precautions and all due diligence' as there is in the Act (see s 21), defendants sought to defend or mitigate the effect of such prosecutions on de minimis grounds. The remarks of Viscount Dilhorne in Smedleys Ltd v Breed [ 1974] AC 839; [1974] 2 AU ER 21, HL are helpful when, inter aha, he stated:

'Where it is apparent that a prosecution does not serve the general interest of consumers, the justices may think fit, if they find that the Act has been contravened, to grant an absolute discharge.' In Sunblest Bakeries Ltd v Andrews (1985) unreported the company appealed against their sentence in respect of an offence against s 2 of the Food and Drugs Act 1955 concerning the remnants of a sticking plaster in a loaf of bread. Despite a plea of guilty followed by a powerful submission in mitigation a fine of £200 was imposed and an order to pay £50 costs was made. The Justices expressed themselves satisfied that 'every human consideration and every human precaution had been taken' but they felt themselves constrained, in view of the importance of the Act in the protection of the public, to impose a substantial fine. On appeal to the Divisional Court it was held that the Justices were not bound as a matter of law to impose a substantial financial penalty and they should be directed to reconsider the sentence although it would not be appropriate for the Divisional Court to substitute a different penalty. On reconsidering the penalty, the Justices imposed a conditional discharge for 12 months.

For the time limit on prosecutions, see s 34. For prosecutions generally see s 35, and for offences by bodies corporate see s 36. For defences see ss 20 to 22.

Sampling and analysis. For the procurement of samples see s 29 and for the analysis of samples see s 30.

Detailed powers of inspection and sampling will be laid down in regulations to be made under s 31. For powers of entry and obstruction of authorised officers, see ss 32 and 33. Note the provisions of s 33(3) as to incriminating information.

Sell. For 'sale' generally under this Act see s 2(1). Under this section, a question as to whether there has been a sale arising from a sampling officer exercising his powers under s 30, may be considered. In Thompson v Ball (1948) 92 Sol Jo 272:

the sampling officer three times requested a licensee to serve whisky from a bottle on a shelf behind the bar. On the first two requests the licensee refused, stating that the whisky was not for sale, that it did not come from his brewers and that it was kept only for the use of himself and his family. The third request was reluctantly complied with by the licensee because he feared that otherwise he

40


might commit the offence of obstructing the officer. A summons alleging the sale of adulterated whisky to the prejudice of the purchaser (s 3 of the Food and Drugs Act 1938) was dismissed by the justices on the ground that there was no sale as there had never been any real agreement to sell and that, if there were a sale, it was not to the prejudice of the purchaser because the officer got what he asked for after being given sufficient notice that it was not of the substance demanded. This decision was approved by a Divisional Court (Lord Goddard CJ, Humphreys and Pritchard JJ) dismissing the officer's appeal by way of case stated.

Bearing in mind the presumptions as to 'sale' in s 2(1), of this Act it would be unsafe to rely on this case.

Mens rea. There is no requirement for proof of mens rea in this section. In Betts v Armstead (1888) 20 QBD 771 Cave J said: 'It was suggested that the justices ought to read into the section (s 6 of the Act of 1875) the word "knowingly" That word is not to be found in this section, and it is clear from the words of other sections of the Act that the word "knowingly" was intentionally omitted from s 6\ For cases to the same effect decided under earlier provisions relating expressly to

the sale of food from which there had been abstractions, see Pain v Boughtwood (1890) 24 QBD 353 and Moms v Corbett (1892) 56 JP 649. See also the judgment of Gibson J in Taylor v Nixon [1910] 2 IR 94.

To the prejudice of the purchaser. With regard to the meaning of the word 'prejudice' in this context, there have been numerous cases under former food statutes from which it was clear that if sufficient information as to the true nature, substance or quality of a food was given to the purchaser, then there could be no prejudice. However, s 3(1) of the Food Act 1984 and its predecessors specifically provided for the giving of notice as a defence to a charge under s 2 of that Act. That provision has not been re-enacted in this Act so it follows that the cases cited below must be viewed in a different light. However, it is submitted that a person cannot be prejudiced if he is clearly and positively informed before the sale that the food he is receiving is not that demanded. The following are cases which did not turn on the interpretation of the said s 3(1) of the Food Act 1984 but are instructive as to the general principles of giving adequate notice:

(a) The following cases are concerned with the sufficiency of the notice given to the purchaser y once it has been proved that notice has actually been received by him (see Preston v Grant [1925] 1 KB 177) which is a question of fact (Rodbourn v Hudson [1925] 1 KB 225). Cockburn CJ in Sandys v Small (1878) 3 QBD 449 explained the nature of proposition (a) as follows:

'The provisions of the section seem to me to apply to cases where a seller professes to sell to the purchaser an article as being of a certain denomination, whereas an article has been altered by an admixture of some other ingredient, and it seems that when the article is so altered this must be considered to have been done to the prejudice of the purchaser, unless it is duly and sufficiently brought to his knowledge; but if the alteration of the article . . . is brought to the knowledge of the purchaser, and he chooses to purchase it notwithstanding, it can never have been intended that such a transaction should be interfered with'.

It is not necessary to disclose what the alteration actually is: Williams v Friend [1912] 2 KB 471, per Pickford J, at 480.

With regard to the interpretation of the many decisions on the question of notice, the remarks of Lord Hewart CJ in Rodburn v Hudson [1925] 1 KB 225 are of considerable assistance. In that case the court upheld the justices' finding that there was sufficient evidence that a sale had been to the prejudice of the purchaser when a purchaser of rum had read the following notice in a public

41


house: 'All spirits sold at this establishment are of the same superior quality as heretofore, but to meet the requirements of the Food and Drugs Acts they are now sold as diluted spirits; no alcoholic strength guaranteed'. The rum was on analysis found to be 41*5 degrees under proof. The court, not following Gage v Elsey (1883) 10 QBD 518 to the opposite effect, held this notice insufficient. The Lord Chief Justice stated:

'There are two questions: (1) What is the substance of the information which must be given to the purchaser? (2) Were the steps taken sufficient in all the circumstances to convey this information to an average purchaser? If the particular purchaser does not see, and is not aware of, the notice, obviously the question of its sufficiency does not arise. The first of the foregoing questions is a question of law, the second is a question of fact. As to (1), the purchaser must be told in substance that the thing which he is getting is not the thing he asked for. As to (2), the question is whether the notice is in such terms as would bring the required information to the mind of an average customer. In other words, the actual sufficiency of the notice is a question for the justices. The difficulty in some of the reported cases is that questions (1) and (2) may seem sometimes to have been a little confounded. No doubt, if the notice, properly construed, could not convey the necessary information, the justices would be wrong in law to acquit.' With regard to who may be regarded as an 'average customer', any special

knowledge that the article is not of the nature, substance or quality demanded derived from other sources than the seller, must be ignored. In Pearks, Gunston and Tee Ltd v Ward [1902] 2 KB 1, Lord Alverstone CJ said:

'The question in my opinion, is not what is the actual knowledge of the particular purchaser, except in so far as that knowledge is derived from information given by the seller either by notice, by the nature of the article itself, or by what passed at the time of the purchase; the question is what would be the position, not of a skilled purchaser like an inspector, but of an ordinary person purchasing the article without special knowledge.'

See also Bundy v Lewis (1908) 72 JP 489 and Morton v Green 1881 8 R (Ct of Sess) 36.

The preponderance of reported cases on the effect of notices displayed in shops disclaiming a particular quality, or on a spoken disclaimer, suggest that the defendant seller faces a very heavy burden in satisfying the court that the above tests of effectiveness are complied with. One example of when the defendant succeeded was Higgins v Hall (1886) 51 JP 293 where the seller's wife served a purchaser and in response to a request for coffee said 'We don't keep it' but pointed out some 'coffee and chicory' tins that she sold as a mixture. The mixture then sold was subsequently found to contain only about 30% coffee. It was held that the justices were wrong to convict the seller of selling 'coffee'. His wife was entitled to sell only a mixture if she represented that it was a mixture. Moreover, this was what the purchaser had asked for and had got. (See also Sandys v Jackson (1905) 69 LP 171).

A case where an effective notice was displayed was Pearks, Gumson and Tee Ltd v Houghton [1902] 1 KB 889, where a conspicuous notice in a shop read: 'Notice. Pearks' butter blended with English full cream milk by new and improved machinery, whereby it retains about 20 to 24% of moisture and acquires that delicacy of flavour which has made Pearks' butter so famous'. An inspector, without seeing the notice, asked for half a pound of shilling butter. The butter sold was blended with milk so as to contain water 7 8% above the permissible maximum of 16%. It was held that, assuming that only one kind of butter was sold in the shop, the seller was protected by the notice and the sale was not to the prejudice of the purchaser. (See the discussion of this decision in Preston v Grant [1925] 1 KB 177.) It seems clear that the decision was based on

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the assumption that what was being sold was 'blended butter', not 'butter'. The decision was distinguished in Hayes v Rule (1902) 66 JP 661 where the facts were similar except that the inspector specifically asked for 'best fresh butter' and had not seen the notice (though the decision was in favour of the defendant on other grounds).

(b) The following cases all involve ineffective notices or disclaimers:

(i) Collet v Walker (1895) 59 JP 600: A purchaser asking for cheese was supplied with a mixture containing skimmed milk and beef fat, the bulk of the butter fat contained in cheese made from whole milk having been abstracted. The bulk of the substance from which the purchaser's portion was taken had a label attached stating 'Valleyfield finest Oleine cheese', the words 'finest Oleine' being in smaller print. The purchaser did not notice the word 'Oleine' and would not have understood its significance had he done so. No notice had been given to the purchaser and it was held that the vendor had rightly been convicted.

(ii) Star Tea Co Ltd v Neale (1909) 73 JP 511: An inspector who asked for coffee was given a mixture containing 74% chicory and labelled 'Coffee mixture' and (in small print), 'Sold as a mixture of coffee and chicory'. The seller's conviction was upheld—the words 'Coffee mixture' would not necessarily cause a purchaser to suspect adulteration.

(iii) Dawes v Wilkinson [1907] 1 KB 278: The inspector bought rum 25° under proof. A notice exhibited by the innkeeper stated that 'All spirits sold in this estabhshment... in order to comply with the Food and Drugs Act, will not be of any guaranteed strength'. This notice was held insufficient to bring to the mind of the purchaser the fact that spirits sold were diluted to a strength below the statutory standard.

(iv) Preston v Grant [1925] 1 KB 177: On somewhat similar facts, the notice read 'All spirits sold in this estabhshment are diluted and no alcohohc strength is guaranteed.' The purchaser of whisky 42*2° under proof did not observe the notice and his attention was not drawn to it, nor was he told verbally that spirits were diluted. It was held that the exhibition of the notice did not suffice to rebut the presumption that the sale was to the prejudice of the purchaser. Nor was it enough to show that the 'average' purchaser would see and read the notice if the purchaser did not see it in fact. (See also Rodbourn v Hudson [1925] 1 KB 225 above. See also for two Scottish cases to the same effect Er ander v Kinnear, Kelso v Soutar, Williamson v Soutar 1923 JC 42 and Patterson v Finlay 1925 JC 53.)

Where there is a special contract between seller and purchaser, it seems that it is a matter of construction of the contract whether the sale is to the prejudice of the purchaser—see Keenan v Costelloe (1910) 44 ILT 218, and compare Fecitt v Walsh [1891] 2 QB 304, both cases concerning contracts to sell milk. (The latter case also suggests that where samples are taken from different milk churns, there is only one sale and only one information can be laid in respect of the whole consignment—per Day J.)

Where a false representation is made prior to the time of the sale whereby the article is wrongly represented as being of the nature, substance or quality demanded, an offence is not committed provided the true position is stated before completion of the sale. In the Scottish case of Frew v Gunning 1901 3 F (Ct of Sess) 51, a milk seller replenished his supply, while on a milk round, from a dairyman. An inspector asked the milk seller for some 'sweet milk' and insisted on being supplied from the can recently purchased from the dairyman rather than from his own milk. He then told the inspector that it was not his own milk and might not prove to be sweet milk. The milk was in fact adulterated. The milk man was acquitted and the acquittal upheld by the Court

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of Justiciary. A similar decision, under this section, was Kirk v Coates (1885) 16 QBD 49, where the seller first stated that some cans held new milk and then, when the officer insisted that he would have some, declared it was old milk, not new. The court upheld the decision of the magistrates that this was a sale of old milk.

If the false representation is made at the time of the sale, an offence is committed. It is immaterial that the price paid might have suggested that the representation was incorrect (Heywood v Whitehead (1897) 76 LT 781).

(v) Lenice Harper vjohn Graeme Wade No 249/79, a purchaser bought a carton of cream with which was associated a notice stating Out of Date Cream 20p. Reduced from 32p\ The 'sell by' date on the carton was 23rd April but the buyer misread it and believed it to be 28th April, the day before the purchase was made. The cream proved to be solid and cheesy and the appeal by the vendor against conviction was on the grounds that the purchaser could not have been prejudiced by virtue of the notice. Held, per Lord Justice Ormrod, that the offence was committed because the purchaser did not demand rancid cream. 'I think it is a complete red herring whether the 'sell date' was the 23rd or the 28th. The purchaser no doubt thought it was good cream and suitable for her purpose. But it was not and therefore purely technically the ingredients of section 2 of the Food and Drugs Act are satisfied.'

For there to be an offence against this section it is not necessary to prove actual damage to the purchaser. As Lush J stated in Hoyle v Hitchman (1879) 4 QBD 233;

'What is the meaning of the word "prejudice"? It cannot be confined to pecuniary prejudice, or prejudice arising from the consumption of unwholesome food. The prejudice is that which the ordinary customer suffers, viz, that which is suffered by anyone who pays for one thing, and gets another of inferior quality . . . The words "to the prejudice of the purchaser" are necessary, because if they had not been inserted, a person might have received a superior article to that which he demanded and paid for and yet an offence would have been committed.'

The price paid for an article is irrelevant when considering whether an offence has been committed under this section (A J Mills & Co v Williams (1964) 62 LGR 354). In Shearer v Rowe (1985) 149 JP 698 the defendants were a firm of butchers who were charged with two offences under this section, in that they sold to the prejudice of the purchaser 'minced beef and 'minced steak' which were not of the nature demanded, in that they each contained 10% of pork meat and 10% of lamb meat. The magistrates acquitted the defendants on two principal grounds (a) that the informations wrongly alleged that the meat was not of the 'nature' demanded rather than not of the 'quality', and (b) that the words 'to the prejudice of the purchaser' in this section are not mere surplusage to 'sold . . . food not of the nature demanded' but import the necessity to prove that what was received was something other than a reasonable purchaser would expect to receive on making that demand. The defendants had set themselves high standards as to the meat sold from their premises and the fact that on a particular occasion they had fallen below their own standards did not necessarily make them guilty of any offence. On appeal by the prosecutor it was held that there was no evidence before the justices to enable them to conclude other than that the ordinary reasonable purchaser would be prejudiced by purchasing, having asked for minced beef, a product only 80% of which was minced beef and the remaining 20% formed by other kinds of meat. In view of the fact that the appeal was upheld in respect of both charges it is implied by this judgment, but not expressly stated, that a product called 'minced steak' must also be of 100% beef. It is submitted that the court would have been unlikely to have

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reached this conclusion if the point had been specifically referred to it. The word 'steak' alone does not indicate any particular type of meat although it may be considered that such a name would not satisfy the requirements of reg 9 of the Food Labelling Regulations 1984, in that it is not sufficiendy specific to indicate the true nature of the food.

Nature or substance or quality. For a discussion of the use of these terms see ante. It is necessary in each case to decide which of these three words is most appropriate for use in an information. The use of more than one of the words in an information would allege more than one offence and would make the information bad for uncertainty—see r 12 of the Magistrates' Courts Rules 1981.

The statement of the alleged offence in the information (see s 1 of the Magistrates' Courts Act 1980 and r 4 of the Magistrates' Courts Rules 1981) will therefore run as follows: 'XY (by hands of CD his servant or agent) did sell to the prejudice of AB, the purchaser, a certain article of food, which was not the [nature] [substance] [quality] of the article, namely [milk], demanded by the purchaser in that [specify defect], contrary to s 2 of the Food and Drugs Act 1955'.

If the justices do proceed on an information bad for duplicity, they cannot amend it during the trial {Hargreaves v Alderson [1964] 2 QB 159, [1962] 3 AU ER 1019, DC and Edwards v Jones [1947] KB 659). Section 123 of the Magistrates' Courts Act 1980, and r 12 of the Magistrates' Courts Rules 1981 (SI 1981 No 552) which provide respectively that 'No objection shall be allowed to any information . . . for any defect in it in substance or in form. . . ' and 'Nothing . . . shall prohibit two or more informations being set out in one document' do not apply to an information bad for duplicity. Thus, where an information charged the defendant with selling food 'not of the nature or not of the substance or not of the quality demanded', the information was held to be for more than one offence, and was bad (Basin v Davies [1950] 2 KB 579, [1950] 1 AU ER 1095, approving a note to this effect in Bell and O'Keefe's Sale of Food and Drugs). Substituting the word 'and' for 'or' in an information otherwise worded as in Bastin v Davies leaves the information open to the same objection: Moore v Ray [1951] 1 KB 98, [1950] 2 All ER 561 ('not of the nature, substance and quality' demanded); also Jones v Sherwood [1942] 1 KB 127 following R v Surrey Justices, ex p Witherwick [1932] 1 KB 450 and Rogers v Richards [1892] 1 QB 555.

It is submitted that 'nature' would apply to (for example) fruit or fish not of the variety or kind asked for, as where giant prunes are sold as plums, or cod sold as haddock. For articles containing foreign bodies or mould, or having some adulterant added, or not containing the proper ingredients, 'substance' is perhaps the most appropriate word to use, although in many instances 'quality' would also be fitting. 'Quality' may be used where an article falls short of the quality which would be expected by the ordinary buyer, or contains a lesser amount of an ingredient which is required by regulations. Note, however, that in most cases regulations which prescribe a minimum quality for specific foods also prescribe offences for breach of quality requirements. It is sometimes preferable in the light of the circumstances surrounding a particular case to proceed under s 2 as an alternative to the offences created by the regulations.

'Substance' is frequently used in cases of milk containing antibiotic residues or other foods containing pesticide residues, but the presence of a foreign body in food, such body being sterile and harmless and not having affected the substance of the food, does not necessarily constitute an offence under this section, although the foreign body is not of the substance of the food: Edwards v Llaethdy Marion Ltd (1957) 107 L Jo 138.

The cases cited below as to the meaning of 'nature', 'substance' and 'quality' involve a degree of overlap. This was recognised in Preston v Greenclose Ltd (1975) 139 JP Jo 245 where the respondents were summonsed for selling to the prejudice of

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the purchaser a food, namely scampi, which was not of the substance demanded, being in part white fish and not scampi. In defence, the submission that the offence related to 'nature' and not 'substance' of the food was accepted and the justices acquitted the respondents. The Divisional Court allowed the prosecutor's appeal, holding that there was an area of common ground between the three words 'nature', 'substance' and 'quality'. They were not normally exclusive, and always to be precise in the selection of one or another could present difficult problems. In the present case it was impossible on a matter of law to pronounce as between the relevant appositeness of 'substance' or 'nature'. The overwhelming probability was that the case fell within both terms, in which event it was right for the prosecutor to choose the one of the two terms he thought the more appropriate.

In Scotland it appears that a different view may be taken of the 'duplicity' point discussed above. In Burrell v T Walls & Sons (Meat and Handy Foods) Ltd [1973] Crim LR 766, a case decided by the Sheriff Court of Dumfries and Galloway and concerning the sale of sausages containing metal, it was held that for the purposes of the Food and Drugs (Scotland) Act 1956 the offence could be labelled cumulatively as 'nature, substance and quality'.

In Shearer v Rowe (1985) 149 JP 698 butchers had sold food named 'minced beef and 'minced steak' which contained 10% of pork meat and 10% of lamb meat. Proceedings were brought under this section in respect of 'nature' and the informations were dismissed by the Magistrates on the ground, inter alia that the charge should have referred to 'substance'. Held on appeal, that it was impossible, on the facts of this case, to pronounce as a matter of law whether the deficiency was in the 'nature' or the 'substance' of the food, the overwhelming probability was that it came within both provisions, in which case it was right to word the charge in whatever way the prosecutor thought was the more appropriate.

Substance. In practice, articles are alleged to be not of the substance demanded in circumstances where eg milk contains antibiotic residues or other foods contain pesticide residues. Similarly where there is a standard, statutory or much less precise, an offence has been committed if the substance of the food falls below it. Thus in Tomkin v Victor Value Ltd [1962] 1 All ER 821, [1962] 1 WLR 339, retailers were charged with selling 'mock salmon cutlettes' to the prejudice of the purchaser which were not of the substance demanded in that they contained only 33% fish. An analyst gave evidence that a 'cutlette' could be a small cut of meat or fish or a compounded article, it being the latter in this case. Although there was no statutory standard applicable here, in his opinion mock salmon cutlettes should have contained a more substantial percentage of fish (not necessarily salmon) than that prescribed for fish cakes—ie 35%. The justices dismissed the information because (1) they were unable to arrive at any reasonable or just standard, and (2) the word 'mock' should have drawn attention to the fact that the food did not contain salmon, and since it tasted like salmon and was not injurious to health the purchaser was not prejudiced. The Divisional Court held the justices' decision wrong on both points. As to the first point, it was held that the composition of a compounded article of food for which no standard of composition is set by law, may be accepted in practice as being composed of specific ingredients in fixed proportions or, in other instances, must contain at least a certain precise proportion of a particular ingredient. This case illustrated a third possibility, upon which justices likewise may act, namely, evidence that whatever the true minimum amount of an ingredient should be, although that requirement is not precisely given and different views might be taken of it, the content of the article was below it. The justices could have acted on the evidence of the analyst accordingly. On the second point, the adjective 'mock' did not mean that the food could consist of any substance provided it looked and tasted like the true article and was not injurious to health. Here, the only meaning of 'mock salmon cutlette' was that it was a cutlette consisting not of salmon but of

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some other fish. There was no legitimate analogy with 'mock cream' not being cream.

However, if the 'substance' is alleged to have been prejudiced by the addition of a foreign body, and the foreign body is a sterile and harmless one which has not affected the substance of the food, an offence under this section is not necessarily committed although the foreign body is not of the substance of the food. In Edwards v Llaethdy Marion Ltd (1957) 107 L Jo 138 sellers were charged with unlawfully selling to the purchaser milk which was not of the substance demanded, in that the milk contained a milk bottle cap, contrary to s 2. The cap was proved to be sterile and harmless and the milk harmless, its substance and quality being unaffected by the cap. The justices accordingly dismissed the information. In dismissing the appellant's appeal, Lord Goddard CJ said, inter aha:

'We are deciding this case on the . . . ground that we think this was essentially a question of fact for the justices... It is not a case in which something was put in which would in any way contaminate the milk. Therefore they find that not only is there no change in the chemical composition of the milk, but nothing has happened which affects the milk as a substance. Therefore, it cannot be said that the mere fact that there is a foreign body in the bottle creates the offence to which there can be no answer... I do not think we have ever said that the presence of something in an article of food must necessarily make that food not of the nature, quality or substance demanded by the purchaser. What we have said is that if the complaint is that something has been put in the food which does affect that nature, quality or substance but does not render the food unfit, then it is proper to proceed under s 2 and not under s 8 which deals with food which is unfit for human consumption. A good illustration is where the sale was of boiled sweets, and when somebody was about to suck one of these sweets, embedded in the sweet was found a nail. In that case it was held by the Magistrate that there had been a sale of something which was not of the substance demanded because glucose or sugar, or whatever forms the substance of a sweet, is what you expect, and if you get that plus something which will come into your mouth, like a nail, I think that does affect the matter.' But if the extraneous matter could be dangerous the position must be

distinguished from that in Edwards v Llaethdy Meirion Ltd above. Thus in Southworth v Whitewell Daines Ltd (1958) 122 JP 322 a dairy sold to an infants' school milk in a bottle. When a child was drinking it with a straw a very small sliver of glass was sucked up with the milk. The dairy was charged with selling to the prejudice of the purchaser milk not of the substance demanded. On a case stated the Divisional Court upheld the appeal against the justices' dismissal of the information and held an offence had been committed. Unlike the Edwards case where the cap was sterile and could not be consumed with the milk or otherwise be harmful, the sliver of glass was a source of danger and had been taken into the mouth with the milk.

For other cases where food was sold not of the substance demanded, see Smedleys Ltd v Breed [1974] AC 839, [1974] 2 AU ER 21 (caterpillar in a tin of peas). See also Meah v Roberts, Lansley v Roberts [1978] 1 All ER 97, [1977] 1 WLR 1187, DC, and Greater Manchester Council v Lockwood Foods Ltd [1979] Crim LR 593 (beetle in can of strawberries).

Quality. It was held in Anness v Gnvell [1915] 3 KB 685 that 'quality' meant commercial quality (having regard to any statutory standards of composition of the food in question) and not merely description. The presence of a foreign body in food can make the food not of the 'quality' demanded—see Newton v West Vale Creamery Co Ltd (1956) 120 JP 318 (house-fly in one pint bottle of milk).

A straw in a bottle of milk can destroy its quality within the meaning of this section. In Barber v Co-operative Wholesale Society Ltd (1983) 147 JP 296 a bottle of

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milk containing a green straw was delivered to a school and proceedings were brought alleging that the food was not of the quality demanded by the purchaser. The justices were of the opinion that the burden of proof rested on the prosecutor to prove that the milk was not of that quality and that standard of proof was not discharged by adducing evidence merely to show that a straw was present in a sealed bottle. On appeal to the Divisional Court, the prosecutor submitted that, following the decision in Goldup vjohn Manson Ltd [1982] QB 161, [1981] 3 AU ER 257, the question to be considered by the court was whether the purchaser received an article of the quality which, under the relevant transaction, he was entitled to expect. In each case it was a question of fact. In this case it was agreed by both parties that the presence of extraneous matter in the food could be evidence that it was not of the quality demanded, but the defendant submitted that this could only be so if the extraneous matter was deleterious. Held, that it was not necessary for the prosecution to prove that the matter was deleterious. It was sufficient to show that the presence of the extraneous matter would give rise to the consequence that a purchaser could, in the context of the particular transaction, reasonably object to the presence of the matter.

An allegation that food was not of the Quality' demanded was challenged in McDonald's Hamburgers Ltd v Windle (21 October 1986, unreported). Two informations were preferred against the company in respect of the sale of 'Diet Cola' to a sampling officer. In the restaurant a 'McDonald's Nutrition Guide' was available to customers which contained the information that Cola drinks had a certain energy value and Diet Cola had a much lower value, of less than one kilocalone per serving. The sampling officer ordered 'Diet Cola' but was served with liquid which did not conform to the stated energy value and contained 10% of sugars. Proceedings were brought under s 2(1) of the Food Act 1984 in respect of the sale of food which was not of the quality demanded by the purchaser. It was submitted by the defendants that 'quality' was the wrong term in this case and the alternative of 'substance' or 'nature' should have been used. In the opinion of the Justices a drink may have a number of qualities such as good taste, refreshing, thirst quenching, odour, effervescence, freedom from sugar and other additives. Where one such quality regarded as important by the purchaser is missing the drink would be not of the quality demanded by the purchaser.

The Justices convicted and the defendants appealed. In the case stated the Justices posed two questions: (i) whether the sale of food, namely Cola, to a purchaser when what was demanded by the purchaser was Diet Cola amounted to a contravention of s 2(1 )(c) of the Food Act 1984 and (ii) whether the sale of food which differs in description from the description of the food demanded by the purchaser is the sale of food which is not of the quality demanded by the purchaser within the meaning of the same sub-section. In a detailed judgment which includes an analysis of all the relevant authorities, McNeill J held that it may be in law but the Justices on the facts before them were entitled to find that it was; Anness v Grivell [1915] 3 KB 685; Pashler v Stevenitt (1876) 35 LT 862; Hunt v Richardson [1916] 2 KB 446; Webb v Knight (1877) 2 QBD 530; Goldup vjohn Manson Ltd [1982] QB 161, [1981] 3 AU ER 257; Barber v Co-operative Wholesale Society Ltd (1982) 147 JP 296; Preston v Greenclose Ltd (1975) 139 JP Jo 245; Bastin v Davies [1950] 2 KB 579, [1950] 1 AU ER 1095; Shearer v Rowe (1985) 149 JP 698 referred. The appeal was dismissed.

Where milk is concerned, if it complies with a statutory standard or is not otherwise adulterated, no offence is committed simply because the milk falls below the standard stipulated in a special contract between the parties (Few v Robinson [1921] 3 KB 504). (Note however that milk described as 'Channel Islands', 'Jersey', 'Guernsey', or 'South Devon' must now contain at least 4% milk-fat.)

The food demanded. When a purchaser asks for a particular food, the food

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'demanded' for the purposes of this section is the food known commercially under the name used. The question of what was 'demanded', ie what was actually said by the purchaser, is a question of fact for the justices (per Grove J in Pashler v Stevenitt (1876) 41 JP 136).

Where there is an obvious disparity between the purchaser's description and the article supplied, such as where lard or margarine is sold for butter, chicory for coffee, haddock for hake, or, as in Knight v Bowers (1885) 14 QBD 845, 'savin' for 'saffron' an offence is committed under this section.

Ambiguous descriptions. Where, however, there is room for debate as to the meaning of a description, the court will take into account evidence of what is generally understood by the trade and public. Thus, in Sandys v Rhodes (1903) 67 JP 352 a grocer was charged with selling a variety of tapioca as sago. The justices found (a) that there was no appreciable difference in cost between the two, and (b) the trade and the public generally knew the substance as sago. The High Court held that no offence had been committed. Similarly, no offence was committed when a purchaser asked for 'Demerara' sugar and was served with crystallised cane sugar grown in Mauritius and coloured with an organic dye equal in commercial value to the best grade of West Indian cane sugar. The justices found as a fact that what the public expect and receive under the designation of Demerara sugar is a crystallised cane sugar of a yellow colour, without reference to the country or place of origin. Similar considerations would apply to 'Cambridge sausages' and 'Bath buns'. (See also to similar effect Smith v Wisden (1901) 66 JP 150—marmalade could contain glucose rather than sugar; and Wilson v M'Cutcheon 1902 5 F (Ct of Sess) 6; Hughes v Traynor [1915] 2 IR 275—prepared meal, ie ground maize with husk and germ removed, legitimately sold as 'white meal').

Disputed evidence from an expert, such as a public analyst, on a matter of opinion is not by itself sufficient to justify a conviction; evidence should be obtained that a member of the public would have expected something different from that sold (see Collins Arden Products Ltd v Barking Corpn [1943] KB 419, [1943] 2 All ER 249). But if the public analyst's opinion is undisputed and it is to the effect that the article is not as demanded, the court should convict (Williams v Hunells' Stores Ltd [1954] Crim LR 543; see also Bowker v Woodroffe [1928] 1 KB 217).

Standards. Where there is a statutory standard, the same considerations apply as to whether the food is of the 'quality' demanded. If the food is not of the statutory standard an offence is committed. If there is no statutory standard, the justices must fix a standard for themselves as a matter of fact to be decided on the evidence (see Roberts v Leeming (1905) 69 JP 417 (margarine); Wilson andMcPhee v Wilson (1903) 68 JP 175 (brandy); and Preston v Jackson (1928) 73 Sol Jo 712 (vinegar); see also Hunt v Richardson [1916] 2 KB 446, where many of these cases are discussed).

In Goldup vjohn Manson Ltd [1982] QB 161, [1981] 3 AU ER 257, a cheap quality and a more expensive quality of minced beef were displayed for sale priced at 58p per pound and 74p per pound. A notice in the shop stated that minced beef sold in the shop contained up to 30% of fat. There was a demand in the area for the cheap minced beef and 400 lb of it were sold per week as compared to 100 lb of the more expensive quality. The maximum percentage of fat in minced beef was not prescribed by statute or regulation. A portion of the cheap minced beef bought by a local authority sampling officer was found on analysis to contain 33% fat. The defendants were charged with selling to the prejudice of a purchaser food, namely minced beef, which was not of the quality demanded by the purchaser in that it contained 33% fat, contrary to s 2(1) of the Food and Drugs Act 1955. At the trial in the magistrates' court the prosecutor called three analysts who gave evidence that according to a number of samples of minced beef they had examined most minced beef on sale contained 25% or less fat and that minced beef should contain no more than 25% fat, but their evidence did not indicate whether those samples were sold as

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first or second quality minced beef or the prices charged for the samples. The magistrates acquitted the defendants, holding that the price at which minced beef was sold was crucial in determining the quality demanded by the purchaser and that in view of the price of the cheap minced beef it was not beyond reasonable doubt that mince sold at that price which contained 33% fat was not of the quality demanded by a purchaser. The prosecutor appealed, contending that where the standard for food was not prescribed by statute or regulation the magistrates were required to find a standard and could do so only on the evidence called before them, and therefore, where there was expert evidence establishing a standard which was not contradicted, the magistrates ought to accept that evidence and act on it. The appeal was dismissed for the following reasons.

(1) Since the standard of the 'quality' of food, for the purpose of s 2(1) of the 1955 Act, was defined in s 2(1) in terms of the quality demanded by the purchaser rather than being prescribed by statute or regulation, the bare opinion of an expert witness as to the standard could not be evidence of the quality demanded by a purchaser, since the standard was then determined by the express terms of the contract of sale or, more often, by implication of inference from all the surrounding circumstances, and the expert's standard was not evidence of, and could not be substituted for, the standard demanded by the purchaser. Since the analysts' evidence had not indicated whether the sample on which they based their opinion was first or second quality minced beed or the prices charged for the samples, but amounted to a bare statement of opinion, it was not evidence of the quality demanded by the purchaser. Accordingly, the magistrates had been entitled to find that they were not satisfied that the minced beef in question was not of the quality demanded by the purchaser; Morton v Green 1881 8 R (Ct of Sess) 36; Anness v Grìvell [1915] 3 KB 685; Hunt v Richardson [1916] 2 KB 446 and Collins Arden Products Ltd v Barking Corpn [1943] KB 419, [1943] 2 All ER 249 applied; dictum of Shearman J in Bowker v Woodroffe [1927] AU ER Rep 415 at 420 explained.

(2) Furthermore, in view of the notice in the shop that minced beef contained up to 30% fat, a purchaser who selected the cheap minced beef impliedly asked for minced beef containing that quantity of fat and since the 3% excess fat which the minced beef was found to contain was de minimis, it did not amount to prejudice to the purchaser within s 2(1); dictum of Lord Parker CJ in Hall v Owen-Jones and Jones {trading as Central Dairies) [1967] 3 All ER 209 at 212 applied.

In TW Lawrence & Sons Ltd v Burleigh (1981) 146 JP 134 a quantity of mince was sold in response to an order received by telephone. On receipt of the mince the purchaser was shocked by the colour and felt that there was too much white fat present. A complaint was made to the local trading standards officer who submitted a sample to the public analyst. The analyst reported that the sample contained 30*8% of fat and proceedings were instituted for a like offence to that in the Goldup v Manson case above. The magistrates convicted and the company appealed. In his judgment Lord Justice Ormrod stated that it was for the magistrates to determine whether or not food was not of the quality demanded as a question of fact. In some cases this quality demanded may be found to be for mince with less than 30% of fat and in other cases even more. The question was whether the purchaser was prejudiced and in this case the most impressive evidence of that prejudice was from the purchaser herself. She was experienced at buying mince and was a regular customer of the appellants. When she saw the mince she did not believe that it was in accordance with the quality which she reasonably expected. The analyst gave evidence to show that the fat content of the sample was right at the top of the range of samples analysed in a survey of the fat content of mince and that he had much experience in the analysis of mince samples generally.

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The facts of this case were not complicated, as they were in the Goldup case, by any question of cheaper quality, notices to the buyer as to the fat content, and price differences of which the buyer was aware. The court believed that it was right for the magistrates to put the evidence of the buyer and the analyst together and to reach the conclusion that they did. All the Divisional Court was concerned with was whether there was evidence on which the Justices could properly come to that conclusion. The question which the magistrates asked themselves was consistent with the judgment in the Goldup case namely that the buyer having specified no standard it was for magistrates to fix, on the evidence before them, what they considered was the proper standard having regard to the price paid by the purchaser. That was the correct question and there was evidence which enabled them to answer that it was not. That was the conclusion of the appeal which was dismissed.

The cases of Goldup v Manson and Lawrence v Burleigh are of great importance in respect of foods for which there is no statutory standard and no standard is stated or implied by way of a label, description, notice or otherwise. The following points may be of assitance:

(a) Evidence of prejudice. The evidence of the purchaser as to personal prejudice in the Lawrence case was of considerable influence on the court. In the Goldup case the purchaser was a sampling officer and although it would not be a defence to allege that he was not prejudiced (see (sub-s (2) above), he gave no evidence of prejudice nor could he have done so.

(b) Notice given to the buyer as to quality. In the Goldup case there was a notice in the shop at the time of purchase by the sampling officer which in reference to the cheaper grade of mince, stated ' . . . up to 30% of fat'. No such notice was given in the Lawrence case, nor could it have been, because the mince was ordered by telepone.

(c) The evidence of the analyst. The observation of a public analyst in such cases may be rebutted;

id) The pnce. The acquittal in the Goldup case depended, to a large degree, on the fact that there were two qualities of mince available at different prices. The judgment indicates that price can be an important factor in the determination of prejudice but only where there is more than one price.

Trade descnptions. It is relevant to note that there can be an overlap between s 2, in that the article is not as 'demanded' by the purchaser who relies on a seller's description, and s 1 of the Trade Descriptions Act 1968 (some of the provisions of which were formerly in the Merchandise Marks Acts). Thus in Lemy v Watson [1915] 3 KB 731 it was held that, under the Merchandise Marks Acts 'Sardines' should not be labelled 'Brisling' even if, unknown to the public, the article was so called in the trade. Similarly it has been held to be a false trade description to describe as 'port' what was in fact Tarragona wine (Sandeman v Gold [1924] 1 KB 107) or to term 'non-brewed vinegar' a solution of acetic acid and caramel (Kat v Dimeni [1951] 1 KB 34, [1950] 2 All ER 657). Section 1 of the Trade Descriptions Act 1968 makes it an offence inter aha, to apply a false trade description to any goods in the course of a business, and such a description may be applied orally (s4(2), Trade Descriptions Act 1968).

Evidence. Where an imitation article is passed off as a genuine one, then it is sufficient if the public analyst, using the correct form of certificate, so certifies without giving full compositional details— see Toison v Larcombes (Bellingham) Ltd (1961) 106 Sol Jo 15.

Milk. Unlike former food statutes, this Act contains no special provisions as to milk. Milk is now subject to the same requirements as all other foods but regulations made under or continued in operation by the Food Act 1984 remain in force under

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this Act and Ministers are empowered by ss 17, 18, and 19 of this Act to make new regulations as they think fit. Note also that regulations as to the registration or licensing of dairies may be made under s 19. Other foods. The development of regulations which impose compositional standards for many foods has removed the uncertainty as to when a food became not of the nature, substance or quality demanded under this section. For example, regulations limiting the amount of water in butter and margarine have overcome the difficulties discussed in the judgments in Pearks, Gunston and Tee Ltd v Van Tromp [1901] 2 KB 825; Burton & Sons v Mattinson (1902) 66 JP 628; and Roberts v Leeming (1905) 69 JP 417. In cases where there are no legal standards the question generally turns on whether there would be prejudice to the ordinary buyer as discussed above.

15. Falsely describing or presenting food. (1) Any person who gives with any food sold by him, or displays with any food offered or exposed by him for sale or in his possession for the purpose of sale, a label, whether or not attached to or printed on the wrapper or container, which— (a) falsely describes the food; or (b) is likely to mislead as to the nature of substance or quality of the food, shall be guilty of an offence.

(2) Any person who publishes, or is a party to the publication of, an advertisement (not being such a label given or displayed by him as mentioned in subsection (1) above) which— (a) falsely describes any food; or (b) is likely to mislead as to the nature or substance or quality of any food, shall be guilty of an offence.

(3) Any person who sells, or offers or exposes for sale, or has in his possession for the purpose of sale, any food the presentation of which is likely to mislead as to the nature or substance or quality of the food shall be guilty of an offence.

(4) In proceedings for an offence under subsection (1) or (2) above, the fact that a label or advertisement in respect of which the offence is alleged to have been committed contained an accurate statement of the composition of the food shall not preclude the court from finding that the offence was committed.

(5) In this section references to sale shall be construed as references to sale for human consumption.

General. This section re-enacts s 6 of the Food Act 1984 with important changes. It prohibits false and misleading descriptions of food by way of labelling and advertising. Together with s 14 it provides the principal protection for consumers in respect of food composition and description. Section 1 of the Trade Descriptions Act 1968 is frequently used as an alternative to proceedings under this section.

In considering whether an offence has been committed under this section regard should be had to the current Food Labelling Regulations and regulations imposing additional labelling and composition requirements for particular foods.

The changes from s 6 of the Food Act 1984 are:

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(a) the offence is extended to circumstances where food is offered for sale and in possession for the purpose of sale in addition to exposure for sale, (sub-s 15(1));

(b) the term 'calculated to mislead' is replaced by 'likely to mislead', (sub-s 15(1)(6) and(2X*));

(c) the defence of 'reasonable diligence' has been omitted by virtue of its inclusion in s21;

(d) the defence of 'innocent publication of an advertisement' has been omitted by virtue of its inclusion in s 22;

(e) a new offence of 'misleading presentation' has been included, (sub-s 15(3)); (/) the presumption that a label or advertisement which is misleading as to the

nutritional or dietary value of a food is misleading as to its quality has been omitted.

Definition. For 'food' see s 1(1). For 'sold' see s 2(1). For 'container', 'presentation' and 'human consumption' see s 53(1).

Offence. It will be noted that the label or advertisement as a whole must falsely describe the food or be likely to mislead as to its nature, substance or quality. Regard must he had, therefore, to the label or advertisement in its entirety and not merely to a single statement which may of itself be false or misleading. For example, a product name may, when read alone, be false or misleading but when considered in conjunction with other statements, it may not be so. Note that by sub-s (4) an accurate statement of the composition of the food does not preclude a court from finding that an offence has been committed. The Trade Descriptions Act 1968, on the other hand, refers to 'false trade descriptions' which, it is submitted, may be derived from any statement on a label or advertisement although other words appearing on a label or advertisement may mitigate the falseness of the statement.

Label. What constitutes a label is not defined in this Act but the definition of 'labelling' in reg 2 of the Food Labelling Regulations 1984 is instructive.

Falsely describes the food. This phrase refers to an explicit false description on the label. Cases of oral misdescription are not, therefore, relevant in this context. Guidance can, however, be obtained from cases of written false trade descriptions under the Trade Descriptions Act 1968 (see generally O'Keefe, The Law Relating to Trade Descnptions). Section 3(1) of the Trade Descriptions Act 1968 states that a false trade description is a 'trade description which is false to a material degree', and s 3(2) states the circumstances in which a trade description which, though not false, is misleading, shall be deemed to be a false trade description (and this distinction in the context of s 6 of the 1955 Act is alluded to below). The following cases illustrate the circumstances in which the Courts have held a label on food to be 'false'.

(a) Sandeman v Gold: [1924] 1 KB 107. The word 'port' in the description 'Tarragona port' was held to be a false trade description. Now the Anglo-Portuguese Commercial Treaty Act 1914 (37 Halsbury's Statutes (3rd Edn) 858), as amended by the Trade Descriptions Act 1968 provides in s 1 that the description 'port' or 'madeira' applied to any wine or other liquor, other than wine the produce of Portugal and the island of Madeira respectively, shall be deemed to be a false trade description within the meaning of the Trade Descriptions Act 1968'. The Anglo-Portuguese Commercial Treaty 1916, s 1(1), as amended by the Trade Descriptions Act 1968, also requires that if the description 'port' is applied to wine the produce of Portugal it must be accompanied on importation into the UK by a certificate from the competent Portuguese authority to the effect that it is a wine to which by the law of Portugal the term 'port' may be applied; otherwise the trade description is false.

(b) Holmes v Pipers Ltd [1914] 1 KB 57. Here it was held to be an offence to sell a mixture of English and Tarragona wine as 'Fine British Tarragona Wine',

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despite the argument that a description containing a contradiction in terms could deceive no one. Bailhache J said in the Divisional Court: 'the vice of the argument is, I think, this—that it assumes too much knowledge on the part of the purchasers of this class of article. Of course, it is quite true that a person who knows where Tarragona is, knows that it is not in Great Britain; or any British possession. But these Acts are meant to protect persons who have not all this knowledge'. And Scrutton J added: Ί do not think that the words "British Tarragona wine" are to be read as meaning a mixture of British wine and Tarragona wine. I think they mean that Tarragona wine is the genus, and British wine the species, and once it is shown that it is not of the genus at all, the description of the species appears to me not to apply'.

(c) Kat v Dimeni [1951] 1 KB 34, [1950] 2 All ER 657. In this case it was held to be a false trade description to term a solution of acetic acid and caramel 'non-brewed vinegar' since vinegar consists of a product of double fermentation.

(d) Henderson and Turnbull v Adair 1939 JC 83. In this case it was held to be an offence to describe as 'Scots Whisky' a blend of 33% Scotch 'pot-still' and 67% Irish 'patent still' spirits, even though trade custom may have been to blend Scotch and Irish Whisky. A secondary and different meaning of a term known to the trade cannot prevail over what is commonly understood by the public (Lemy v Watson [1915] 3 KB 731).

(e) Bischop v Toler (1895) 73 LT 402. Here it was held that a margarine product called 'Le Dansk' packed in boxes labelled 'Le Dansk French Factory, Le Dansk, Paris', the food being a mixture of imported French margarine and imported Danish butter and English milk, and the mixture being made up in this country, was a false trade description. The article was represented as foreign when it was not. (It is also an offence under the Trade Descriptions Act 1972 to apply to non-exempted goods a label indicating UK origin when the goods are manufactured outside the UK.)

( /) Coppen v Moore (No 2) [1898] 2 QB 306. It was held that the word 'Scotch' applied to American ham is a false trade description; but 'Wiltshire cut' is a description of method of cut and not of origin (Morris v Royle (1896) 3 L Jo 339).

In trade descriptions law it is no defence to prove that the falsely described article is as good as the article which it purports to be—see Kirkenboim v Salmon and Gluckstdn [1898] 2 QB 19 ('hand-made' cigarettes in fact machine made, but with the same quality of paper, starch and tobacco; it was held that there was an intention to deceive).

(g) The origin and correct designation for intoxicating hquor products have given rise to much litigation which, although the result of civil action or criminal proceedings under trade descriptions law, may also constitute an offence under this section. In Vine Products Ltd v Mackenzie & Co Ltd [1969] RPC 1, the misuse of geographical names was considered. The name 'sherry' is a corruption of the town name Jerez de la Frontera and its use indicates that the hquor is a distinctive type of wine which was produced in that area of Spain. Thus the use of the name 'sherry' alone would, prima facie, be a breach of this section. In matters of the origin of food, however, regard must be had to reg 6(f) of the Food Labelling Regulations 1984 which requires that particulars of the place of origin of the food must be given if failure to give such paticulars might mislead the purchaser to a material degree as to the true origin of the food. Thus the use of the adjective 'Spanish' or 'South African' in respect of a sherry product would remove the falsehood of origin which might otherwise arise.

(h) In Erven Warnink BV vj Townend& Sons (Hull) Ltd [1979] AC 731, [1979] 2 All ER 927, by way of an appeal to the House of Lords the plaintiffs, who were the manufacturers of a drink known as 'advocaat' which was made almost exclusively in the Netherlands, sought to restrain the defendants from

54


manufacturing and selling a product made from dried eggs and Cyprus sherry under the name Old English Advocaat'. Because their product contained sherry and not spirits, less excise duty was payable and it could thus be sold at a lower price than the Dutch advocaat. The alcoholic strength of both products was much the same, and although a seasoned drinker could tell the difference it was unlikely that a casual drinker could distinguish between them.

Even though the defendants were not passing off their product as that of the Dutch manufacturers, the plaintiffs applied for an injunction on the grounds that, although they did not have exclusive right to the use of the name 'advocaat', they were members of a class consisting of those who had the right to use the name, and as such were entitled to protect the name by a passing off action where a product was not made from eggs and spirits without the addition of wine. The judge granted an injunction, but on appeal by the defendants the Court of Appeal discharged the injunction and dismissed the action on the ground that the name 'advocaat' was purely descriptive and not distinctive. The House of Lords allowed appeal of the plaintiffs for the following reasons: (i) If a product of a particular character or composition was marketed in

England under a descriptive name and gained a reputation there under that name which distinguished it from competing products of different composition, the goodwill in the name of those entitled to make use of it there was protected against deceptive use there of the name by competitors, whether the name denoted a product made from ingredients from a paticular locality or whether the goodwill in the name was the result of the product being made from particular ingredients regardless of their provenance, since it was the reputation that the product had gained in the market by reason of its recognisable and distinctive qualities which had generated the relevant goodwill.

(ii) On the facts, 'advocaat' was the name of a spirit-based product defined by reference to the nature of its ingredients. The product had gained a reputation and goodwill for that name on the English market, and the defendants were seeking to take advantage of that name by misrepresenting that their wine-based product was of the same type as advocaat. Since the plaintiffs fell within the class of traders whose right to describe their products as 'advocaat' formed part of their goodwill, and who were being injured by the defendants' misrepresentation, they were entitled to the injunction sought. Bollinger v Costa Brava Wine Co Ltd (No 2) [1961] 1 All ER 561, [1961] 1 WLR 277 referred.

However, justices are entitled to decide, on the evidence before them, whether a particular description is false. Unless it could be shown that an error in law had been made or, on the facts of the case, the decision was one which no reasonable bench, properly directing themselves, could have come to, the Divisional Court cannot overturn a decision of the justices. In Amos v Britvic Ltd (23 July 1984, unreported) QBD the defendants were charged that they did give with a food, namely a compound product prepared from concentrated orange juice, orange juice and water, a label which falsely described the food as 'natural' orange juice contrary to s 6(1). In addition to the prominent words 'Natural Orange Juice' the label bore the description 'a blend made with concentrated orange juice and orange juice' as required by the Fruit Juices and Fruit Nectars Regulations 1977, as amended. The oranges used for making the product were obtained from a number of countries abroad and the concentrated juice was extracted from the oranges in their country of origin. The concentrated juice was reconstituted by the addition of water in the United Kingdom during the manufacturing process. The mixture of concentrated and ordinary fruit juice was twice pasteurised but the final product contained no additives. The appellant submitted that the removal of the natural water in the country of origin and the reintroduction of different water in the United Kingdom

55


rendered the description 'natural' false. Counsel for the appellant cited the decision in Davenport v Apollinans Co Ltd (1903) 67 JP 323. In that case, the court was dealing with the addition to natural mineral water of carbonic acid to replace that which had been emitted or evolved in the course of extraction and other additions or subtractions which the court regarded as minimal. Counsel sought to distinguish the decision in that case upholding the decision of the magistrate that the words 'natural mineral water' were not a false description on the basis that the carbonic acid was emitted naturally and was no more than replaced. Per McNeill J, whilst recognising the distinction in fact, considered that it seemed to turn on what Lord AI verstone, CJ was prepared to keep under consideration as an error in law in that case, although the decision of the magistrate there, like the decision of the justices here, seems to bear all the hallmarks of a decision of fact. This bench of magistrates took the view that on the facts found by them, particularly with the reference to the absence of additives, this was natural orange juice. 'In so far as I am entitled to do so, for my part, I entirely agree'. The appeal was dismissed and the court refused to certify that the case involved a point of general public importance. False or misleading. The prosecution, it is submitted, should choose either to allege that the label is false, or that it is misleading in respect either of nature or of substance or of quality of the food by virtue of s 15(1)(α) or (b). It seems that an information alleging that a label is 'false or misleading' would not be properly worded.

The distinction between a 'false' description and a 'misleading' description can be a narrow one. A 'false' statement may be false on account of what it omits even though it is literally true; cf R v Lord Kylsant [1932] 1 KB 442 and R v Bishirgian [1936] 1 All ER 586; see also per Denning LJ in Curtis v Chemical Cleaning and Dyeing Co Ltd [1951] 1 KB 805, [1951] 1 All ER 631, CA. Nevertheless, as a working rule it is submitted that the safe course is to allege that the label is false if there is a clear factual misstatement, and that it is misleading if the label is false only by inference or omission. An example of the latter might be where tinned fruit which had lost about 25% of the original total solids, this having been replaced by water, is labelled 'fully prepared, sliced, selected tinned apples (unsweetened)'—see Arlidge v Blue Cap Foods (Kent) Ltd (1965) 63 LGR 167. Per curiam: the amendment of the label to read 'prepared and processed' might meet the situation.

The use of traditional food names for products which do not conform to the generally accepted meaning is a matter which has been referred to the courts in recent years. In G W Padley (Poultry) Ltd v Elkington (1986) unreported, the company successfully appealed against their conviction by the Justices for giving with a comminuted chicken breast product with a cereal coating described as 'Chicken Breast Steaks' a label which was calculated to mislead as to the nature of the food, the said food not being Chicken Breast Steaks but flaked, reformed and shaped chicken meat, contrary to s6(l)(ò) of the Food Act 1984. The Magistrates, despite being informed by the prosecution that the matter was regarded by them as a test case, imposed a fine of £750 and ordered the Defendants to pay a contribution of £1,200 towards the prosecution's costs.

The appeal to Lincoln Crown Court against this conviction was unanimously allowed, the Court accepting the submission of the defence that the label which described the food as '2 Chicken Breast Steaks—Flaked and formed chicken in a crispy crumb' clearly and accurately described the product, and could not be said to be misleading. The Learned Recorder described the label as 'frank and informative'.

The thrust of the prosecution case was that the word 'steak' should not be used otherwise than in relation to a cut of meat taken straight from the animal (or bird). The Defence produced evidence of wide usage and hence consumer understanding and acceptance, of the word 'steak' in relation to convenience foods consisting of comminuted flesh, and submitted that directory references did not support the prosecution case.

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The Court in view of its decision on the label itself did not find it necessary to express any view on the use of the word 'steak' generally. This would appear to be the correct approach in that in considering an alleged offence under s 6 the Court must in the normal course have regard to the label in its entirety. Thus whilst the prosecution failed in its objective of outlawing the use of the word 'steak' for comminuted products, it remains open for further attacks possibly to be mounted on less 'frank and informative' labelling.

This case does not, of course, create precedent but in Wolkind and Northcott v Pura Foods Ltd (29 January 1987, unreported), DC proceedings were brought against the company under s l(l)(ò) of the Trade Descriptions Act 1968 and reg 8 of the Food Labelling Regulations 1980 (now reg 9 of the Food Labelling Regulations 1984) in respect of a product named 'Pura Vegetable Lard'. It was alleged by the prosecution that the word 'lard' could only be properly used if the product consisted of pig fat. On appeal by the prosecutor by way of case stated from the Knightsbridge Crown Court who allowed the defendants' appeal against conviction by the Wells Street Justices, the Divisional Court held that, on the facts of this case, the label could not be misleading when it set out with signal clarity '100 per cent vegetable oils'. Similarly, it could not be said that the name 'vegetable lard' did not inform the purchaser of the true nature of the product.

This is another case in which the prosecution sought to prevent the use of a traditional food name for a product which does not conform to the accepted meaning. In this case, however, the definitions of 'lard' in the Shorter Oxford English Dictionary and elsewhere did not entirely support the prosecution case and the court accepted that the labelling as a whole satisfied the statutory labelling requirements and was not false or misleading; Holmes v Pipers Ltd [1914] 1 KB 57; Sandeman v Gold [1924] 1 KB 107; and Kat v Dimeni [1951] 1 KB 34, [1950] 2 All ER 657; in which descriptions of products were held to be false, referred. Whether or not the use of the word 'vegetable' was a disclaimer against the alleged falseness of the word 'lard' was considered but the Judge did not accept that the question of disclaimers arose in these circumstances although the judgements in R v Hammertons Cars Ltd [1976] 3 AU ER 758, [1976] 1 WLR 1243, CA; Norman v Bennett [1974] 3 All ER 351 [1974] 1 WLR 1229; and Wandsworth London Borough Council v Bentley [1980] RTR 429; could be relied upon by the defendant if necessary.

On the other hand a label, taken in its entirety, may be misleading even though each item of information taken separately may be truthful. In Van den Berghs& Jürgens Ltd v Burleigh (1987) unreported Lewes Crown Court, the company appealed against their conviction by Brighton Magistrates for an offence against s6(l)(ò) in respect of their products 'Elmlea Single' and 'Elmlea Whipping', both of these products being cream substitutes. It was alleged that the use of a cream type carton, the words 'single' and 'whipping', the colouring of the words and the rural scene illustrated on the pack would mislead a consumer to believe that the product was cream. Proceedings on the same point were brought under the Trade Descriptions Act 1968 and on a different point under s 48 of the Food Act 1984. In addition to the foregoing, the cartons were clearly labelled with the words 'the real alternative to cream'. It was submitted on behalf of the company that these words clearly indicated that the product was not cream and the label as a whole could not, therefore, be misleading. Held, that the average consumer, not being a food technologist and not having any special knowledge of such products, would be misled by the label. The appeal was dismissed.

Regulations

16. Food safety and consumer protection. (1) The Ministers may by

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regulations make— (a) provision for requiring, prohibiting or regulating the presence in food

or food sources of any specified substance, or any substance of any specified class, and generally for regulating the composition of food;

(b) provision for securing that food is fit for human consumption and meets such microbiological standards (whether going to the fitness of the food or otherwise) as may be specified by or under the regulations;

(c) provision for requiring, prohibiting or regulating the use of any process or treatment in the preparation of food;

(d) provision for securing the observance of hygienic conditions and practices in connection with the carrying out of commercial operations with respect to food or food sources;

(e) provision for imposing requirements or prohibitions as to, or otherwise regulating, the labelling, marking, presenting or advertising of food, and the descriptions which may be applied to food; and

( / ) such other provision with respect to food or food sources, including in particular provision for prohibiting or regulating the carrying out of commercial operations with respect to food or food sources, as appears to them to be necessary or expedient— (i) for the purpose of securing that food complies with food safety

requirements or in the interests of the public health; or (ii) for the purpose of protecting or promoting the interests of con

sumers.

(2) The Ministers may also by regulations make provision— (a) for securing the observance of hygienic conditions and practices in con

nection with the carrying out of commercial operations with respect to contact materials which are intended to come into contact with food intended for human consumption;

(6) for imposing requirements or prohibitions as to, or otherwise regulating, the labelling, marking or advertising of such materials, and the descriptions which may be applied to them; and

(c) otherwise for prohibiting or regulating the carrying out of commercial operations with respect to such materials.

(3) Without prejudice to the generality of subsection (1) above, regulations under that subsection may make any such provision as is mentioned in Schedule 1 to this Act.

(4) In making regulations under subsection (1) above, the Ministers shall have regard to the desirability of restricting, so far as practicable, the use of substances of no nutritional value as foods or as ingredients of foods.

(5) In subsection (1) above and Schedule 1 to this Act, unless the context otherwise requires— (a) references to food shall be construed as references to food intended for

sale for human consumption; and (b) references to food sources shall be construed as references to food

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sources from which such food is intended to be derived.

General. This section confers extensive regulation making powers on Ministers which may be exercised to secure adequate standards of food safety and consumer protection. Further amplification of the matters which may be subject to regulations made under sub-s (1) is given in Schedule 1. This section should also be read with s 17, (regulations for the enforcement of Community provisions), and s 18 (regulations for particular foods). These powers must be exercised by statutory instrument and include the power to apply the provisions of any other enactment which deals with matters similar to those being dealt with by the regulations; to make different provisions for different cases or classes of case; and to provide for exceptions, limitations and conditions, supplementary, incidental and consequential or transitional provisions as appropriate. Ministers are required to consult on proposed regulations to be made under this and other enabling powers in this Act, (see s 48).

Regulations made or continued in operation by the Food Act 1984 remain in force as if made under this Act by virtue of s 59(3), and para 2(1) of Schedule 4. Definitions. For 'the Ministers', see s 4. For 'food', 'food sources' and 'commercial operation' see s 31. For 'preparation', 'treatment', 'presentation', 'advertising' and 'substance' see s 3(1). For 'food safety requirement' see s 8(2).

17. Enforcement of Community provisions. (1) The Ministers may by regulations make such provision with respect to food, food sources or contact materials, including in particular provision for prohibiting or regulating the carrying out of commercial operations with respect to food, food sources or contact materials, as appears to them to be called for by any Community obligation.

(2) As respects any directly applicable Community provision which relates to food, food sources or contact materials and for which, in their opinion, it is appropriate to provide under this Act, the Ministers may by regulations— (a) make such provision as they consider necessary or expedient for the

purpose of securing that the Community provision is administered, executed and enforced under this Act; and

(b) apply such of the provisions of this Act as may be specified in the regulations in relation to the Community provision with such modifications, if any, as may be so specified.

(3) In subsections (1) and (2) above references to food or food sources shall be construed in accordance with section 16(5) above.

General. This section empowers the Ministers to make regulations for the implementation of EC Directives and for securing the enforcement in the United Kingdom of EC Regulations. Before this Act came into force it was necessary for all such regulations to be made under similar powers in the European Communities Act 1972. Definitions. For 'the Ministers' see s 4. For 'food', 'food sources' and 'contact materials' see s 1(3).

18. Special provisions for particular foods etc. (1) The Ministers may by

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regulations make provision— (a) for prohibiting the carrying out of commercial operations with respect

to novel foods, or food sources from which such foods are intended to be derived, of any class specified in the regulations;

(6) for prohibiting the carrying out of such operations with respect to genetically modified food sources, or foods derived from such food sources, of any class so specified; or

(c) for prohibiting the importation of any food of a class so specified, and (in each case) for excluding from the prohibition any food or food source which is of a description specified by or under the regulations and, in the case of a prohibition on importation, is imported at an authorised place of entry.

(2) The Ministers may also by regulations— (a) prescribe, in relation to milk of any description, such a designation (in

this subsection referred to as a 'special designation') as the Ministers consider appropriate;

(b) provide for the issue by enforcement authorities of licences to producers and sellers of milk authorising the use of a special designation; and

(c) prohibit, without the use of a special designation, all sales of milk for human consumption, other than sales made with the Minister's consent.

(3) In this section— 'authorised place of entry' means any port, aerodrome or other place of

entry authorised by or under the regulations and, in relation to food in a particular consignment, includes any place of entry so authorised for the importation of that consignment;

'description', in relation to food, includes any description of its origin or of the manner in which it is packed;

'novel food' means any food which has not previously been used for human consumption in Great Britain, or has been so used only to a very limited extent.

(4) For the purposes of this section a food source is genetically modified if any of the genes or other genetic material in the food source— (a) has been modified by means of an artificial technique; or (b) is inherited or otherwise derived, through any number of replications,

from genetic material which was so modified; and in this subsection 'artificial technique' does not include any technique which involves no more than, or no more than the assistance of, naturally occurring processes of reproduction (including selective breeding techniques or in vitro fertilisation).

General. This section makes provision for the prohibition of novel foods and for the prescription of special designations for milk and the licensing of their use. Under former legislation there was no specific provision for the control of novel foods

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although a form of control was developed by use of the Ministers' information seeking powers, the general provisions as to fitness for foods and the use of ad hoc advisory committees. This section, together with the general regulation making powers in ss 16 and 17, provides a means of controlling and, where appropriate prohibiting commercial operations with respect to classes of novel foods and their importation.

Sub-s (2) empowers Ministers to make regulations which may replace the former provisions of Part II of the Food Act 1984 as to special designations for milk. It should be noted that it is also open to Ministers to require the registration of dairies generally by exercise of their powers under s 19. Definitions. For 'authorised place of entry', 'description', 'novel food' and 'novel food source' see sub-s (3) supra. For 'commercial operation' and 'food source' see s 1(3). For 'food' see s 1(1). For 'milk', 'importation' and 'human consumption' see s 53(1).

19. Registration and licensing of food premises. (1) The Ministers may by regulations make provision— (a) for the registration by enforcement authorities of premises used or pro

posed to be used for the purposes of a food business, and for prohibiting the use for those purposes of any premises which are not registered in accordance with the regulations; or

(b) subject to subsection (2) below, for the issue by such authorities of licences in respect of the use of premises for the purposes of a food business, and for prohibiting the use for those purposes of any premises except in accordance with a licence issued under the regulations.

(2) The Ministers shall exercise the power conferred by subsection (l)(ft) above only where it appears to them to be necessary or expedient to do so— (a) for the purpose of securing that food complies with food safety require

ments or in the interests of the public health; or (b) for the purpose of protecting or promoting the interests of consumers.

General. A serious weakness in the enforcement of food law in the past has been that local enforcement authorities have not been aware of the existence of all food businesses within their area. This section empowers the Ministers to make regulations requiring the registration or licensing of food businesses. By virtue of sub-s (2) it is clear that Ministers may make regulations requiring licensing only where the food produced or kept at the premises concerned poses special risks as to health or consumer protection.

The Ministers have indicated their intention to make regulations requiring the registration of most food premises at an early date. Definitions. For 'the Ministers' see s 4. For 'enforcement authority' see s 6(1). For 'food business' and 'premises' see s 1(3). For 'food' see s 1(1). For 'the food safety requirement' see s 8(2). Registered/licences. There is no definition of these terms in this Act. However, in licensing law generally there is a clear distinction in that any activity which is required to be licensed must be approved by the licensing authority before any such activity takes place. On the other hand, registration merely requires that the person carrying on the activity notifies the registration authority within such time limit as may be set. Such time may be before or after the activity begins; see Rüssel v Ministry of Commerce for Northern Ireland, [1945] NIU 184.

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Defences etc

20. Offences due to fault of another person. Where the commission by any person of an offence under any of the preceding provisions of this Part is due to an act or default of some other person, that other person shall be guilty of the offence; and a person may be charged with and convicted of the offence by virtue of this section whether or not proceedings are taken against the first-mentioned person.

General. This section is in the common form now found in most trading statutes. However, it is new to food law and differs substantially from the provisions of s 100 of the Food Act 1984. That section enabled a person subject to proceedings to have another person by whose act or default he alleged the offence to have been committed brought before the court. If the principal defendant was further able to prove that he had used all due diligence to secure that the provisions concerned had been complied with he was entitled to be acquitted. The section further provided that where the prosecutor was satisfied that the commission of the offence was due to the act or default of the other person and the burden of diligence had been fulfilled he could bring proceedings directly against the other person.

Under this section proceedings may be brought by the enforcement authority either against the principal or the other person or both. This section should be read with s 21, (defence of due diligence), and s 36 (offences by bodies corporate).

21. Defence of due diligence. (1) In any proceedings for an offence under any of the preceding provisions of this Part (in this section referred to as 'the relevant provision'), it shall, subject to subsection (5) below, be a defence for the person charged to prove that he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence by himself or by a person under his control.

(2) Without prejudice to the generality of subsection (1) above, a person charged with an offence under section 8, 14 or 15 above who neither— (a) prepared the food in respect of which the offence is alleged to have

been committed; nor (b) imported it into Great Britain, shall be taken to have established the defence provided by that subsection if he satisfies the requirements of subsection (3) or (4) below.

(3) A person satisfies the requirements of this subsection if he proves— (a) that the commission of the offence was due to an act or default of

another person who was not under his control, or to reliance on information supplied by such a person;

(b) that he carried out all such checks of the food in question as were reasonable in all the circumstances, or that it was reasonable in all the circumstances for him to rely on checks carried out by the person who supplied the food to him; and

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(c) that he did not know and had no reason to suspect at the time of the commission of the alleged offence that his act or omission would amount to an offence under the relevant provision.

(4) A person satisfies the requirements of this subsection if he proves— (a) that the commission of the offence was due to an act or default of

another person who was not under his control, or to reliance on information supplied by such a person;

(b) that the sale or intended sale of which the alleged offence consisted was not a sale or intended sale under his name or mark; and

(c) that he did not know, and could not reasonably have been expected to know, at the time of the commission of the alleged offence that his act or omission would amount to an offence under the relevant provision.

(5) If in any case the defence provided by subsection (1) above involves the allegation that the commission of the offence was due to an act or default of another person, or to reliance on information supplied by another person, the person charged shall not, without leave of the court, be entitled to rely on that defence unless— (a) at least seven clear days before the hearing; and (b) where he has previously appeared before a court in connection with the

alleged offence, within one month of his first such appearance, he has served on the prosecutor a notice in writing giving such information identifying or assisting in the identification of that other person as was then in his possession.

(6) In subsection (5) above any reference to appearing before a court shall be construed as including a reference to being brought before a court.

General. This section establishes a single limbed defence of 'all reasonable precautions and all due diligence' for the first time in food law. In s 100 of the Food Act 1984 it was necessary for a defendant wishing to prove a defence additionally to prove that the offence was due to the act or default of another person and also to bring that person before the court. In this section, although the act or default of another person may be cited by a defendant in connection with his proof of due diligence, there is no requirement to that end. Proof of the existence and efficient operation of a due diligence system alone may be sufficient for acquittal.

This defence will, together with the strengthened enforcement provisions in ss 29, 32 and 33, and in regulations made under s 31, bring about major changes in the administration of food law for all sectors of the food industry. The existence of a comprehensive and efficiently operated due diligence system has the potential to render food companies and traders immune from prosecution provided it can satisfy the precedents established by decided cases and withstand the critical scrutiny of authorised officers of enforcement authorities. Subs (1) The wording of this sub-section closely follows that in s 34(1) of the Weights and Measures Act 1985 (see O'Keefe's Law of Weights and Measures— Butterworths) and s 39(1) of the Consumer Protection Act 1987 (see O'Keefe's Law Relating to Trade Descriptions—Butterworths). Certain presumptions have been created in sub-ss (3) and (4) in favour of retailers who no longer enjoy the protection of warranties.

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Subs (2) Persons who have not prepared the food nor have imported it may, when charged with an offence against ss 8 (the food safety requirement), 14 (food not of the nature, substance or quality demanded), and 15 (false or misleading labels and advertisements), be deemed to have established the defence in sub-s (1) if they have satisfied the requirements of sub-ss (3) or (4). A person who has neither prepared nor imported the food will normally be a retailer or a wholesaler and the presumptions as to sub-s (1) have been created to clarify the obligations of such persons selling own-label products and to protect the position of those selling branded products in the absence of a defence of warranty.

Sub-s (3) This sub-section creates a presumption that a retailer selling a product under his name or mark (see sub-s (4)(ό)) has satisfied the defence of all reasonable precautions and all due diligence in sub-s (1) if he proves sub-paras (a), (b) and (c). The principal difference between a person having to prove a full due diligence system under sub-s (1) and a qualified one under this sub-section is that reasonable reliance may be placed on the supplier. Put simply, it is necessary for someone, somewhere in the production-distribution chain to have carried out comprehensive checks on own-label products. In some cases it may be possible for a retailer or wholesaler to rely wholly on the checks made by his supplier; in other cases he will be obliged to carry out comprehensive checks himself. In most cases a balance will have to be struck between checks carried out by the supplier and those carried out by the retailer or wholesaler.

Subs (4) The presumptions created by this sub-section apply to a person who is not selling products under his own name or mark, ie he is selling branded products. This sub-section differs from sub-s (3) only in that the requirement to carry out checks or to rely on checks carried out by the supplier has been omitted. The effect is to put such a person in much the same position he was in under s 102 of the Food Act 1984 where he could rely on a warranty from his supplier.

Subs (5) The former requirement as to notice to be given to the prosecutor where a defendant intends to allege that the commission of the offence was due to the act or default of another person has been re-enacted in amended form to allow the prosecution sufficient time to investigate the allegation and, if appropriate, to bring proceedings against the other person. In the past when a seven day period of notice was required it was sometimes the case that enforcement authorities were unable to investigate the possibility of bringing proceedings against the other person before the date of the hearing against the principal defendant.

Warranty Section 102 of the Food Act 1984, which provided for a defence of warranty, has not been re-enacted in this Act. By virtue of the said s 102 it was a defence for a person charged with certain offences to prove that he was in possession of a good warranty, that he had no reason to believe that the food was other than as warranted and the food was in the same state when sold by him as it was when he received it. This defence provided valuable protection for retailers selling food bought from a manufacturer or importer in good faith. However, it was possible for an importer in the United Kingdom to rely on a warranty given by his overseas supplier. In such circumstances it was sometimes impossible for any proceedings to be brought because the ultimate offender, ie the overseas supplier, was beyond the jurisdiction of the United Kingdom courts. For this and other reasons it was decided that the law of warranty was inappropriate to modern food manufacture and distribution. There is no mention of warranty anywhere in this Act, but the term 'reliance on information supplied.. . ' in sub-ss (3) and (4) makes possession of a warranty from a supplier useful in seeking to prove the defence under those subsections.

Definitions. For 'preparation' see s 53(1).

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It shall be a defence. Where the defence is to be relied on the plea should be 'not guilty'. The onus of proof lies on the defendant (cf the Magistrates' Courts Act 1980, s 101). The burden of proof on the defendant is the civil law requirement of 'on the balance of probability': see R v Carr-Briant [1943] KB 607, [1943] 2 All ER 156; Robertson v Watson (1949) JC 73; R v Jenkins (1923) 87 JP 115; and ci Cant v Hartley & Sons Ltd [1938] 2 AU ER 768.

All reasonable precautions and all due diligence. Following the creation of offences of absolute (strict) liability to trading legislation during the second half of the 19th century, the concept of statutory defences was introduced. Early forms of the defence, of which the now repealed s 100 of the Food Act 1984 was a good example, sought to relieve a principal defendant of criminal liability in circumstances where he was the innocent victim of an offence which was due to the act or default of another person subject to his having taken all those precautions which could reasonably be expected of a person in his business. In later developments of the defence other factors, such as reliance on information supplied, mistake or accident or other causes beyond control, were added to the first limb of the defence. A good example of this extended defence may be found in s 24 of the Trade Descriptions Act 1968—see O'Keefe's Law Relating to Trade Descriptions (Butterworths).

During the last 30 years, the growth of large national and international manufacturing and retailing companies with complex and diverse staffing and supply structures has restricted the applicability of the first limb of the defence in many cases. For example, it has often been impossible to identify the actual individual responsible for the commission of an offence. Recognition of this fact has resulted in a new form of the defence now to be found in this section.

The single limbed defence of all reasonable precautions and all due diligence is an expression of natural justice in that it provides that a person should not be criminally liable for something which cannot be reasonably avoided. In modern food manufacture and retailing it is quite impossible, no matter how well managed a company may be, to ensure that there will never be a defective product sold to the public. This Act does not require that there should be perfection in food sales to the public. It does make it unlawful to sell defective food in circumstances where the trader cannot or does not prove all reasonable precautions and all due diligence.

It should be noted that there must be proof that all reasonable precautions were taken and that all due diligence had been exercised.

Some principles of due diligence. A substantial body of case law has been built up over the last 50 years of which the most important are those judgments based on the similar single-limbed defences in weights and measures and consumer safety legislation. From a study of these cases it is possible to establish certain general principles applicable to all due diligence systems operating under those statutes. However, caution must be exercised in applying those precedents to this Act because of the serious nature of food safety offences, the increased penalties applicable to them, the new powers conferred on Ministers and food authorities to issue control notices or orders and the wider powers now available to the courts to prohibit certain activities and persons from being employed in the manufacture and distribution of food.

The following guidelines on establishing due diligence systems under this Act are based on precedents arising from former food, trade descriptions, weights and measures and consumer safety law modified to satisfy the provisions of this Act:

(a) The system must be under the directing will of the Company but the principal of the Company may delegate responsibility for the system to superior servants under their contracts of employment with him or to agents employed by him;

(b) The precautions and checks to be taken depend on the size and resources of the

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company, the risk imposed by the products of the company and all other relevant circumstances of the case;

(c) Reliance cannot be placed on warranties nor on general assurances from suppliers (but see sub-ss (3) and (4) for persons who have not prepared the food nor imported it);

(d) The due diligence system must be written down with adequate instructions and training being given to staff and records being kept of the checks made to ensure that the system is working properly;

(e) Any reasonable precautions which can be taken must be taken and the system must be pro-active and reactive, ie, it must be capable of preventing faults and correcting them when they occur.

( / ) Complaints by consumers should be recorded and analysed to detect any trends which may suggest a fault in the system;

(g) The responsibilities of directors, managers and employees should be stated in writing and acknowledged by them;

(A) Acquisition of warranties and assurances from suppliers can contribute to a due diligence system but see (c) above;

(i) The system must be modified, adjusted or amended as required; 0 ) Internal and external codes of practice may contribute to the system but are not

sufficient in themselves; (k) The operation of the system must be checked and the results of those checks

must be recorded; (/) The system must cover all aspects of the business which is subject to the Act or

regulations made under the Act including: — Hygiene and safety of premises and equipment; — Quality, composition and safety of food products; — Labelling and advertising; — Staff training; — Registration and licensing as appropriate; — Improvement notices, prohibition or control orders as may be applicable.

Due diligence cases. Authority for the principles described above is derived from the judicial interpretation of former due diligence and related defences in the Food Act 1984 and its predecessors and those in weights and measures, trade descriptions and consumer safety law.

Due diligence L· a question of fact. Whether a defendant has discharged his burden of proof as to due diligence is a question of fact to be determined in every case. However, the High Court will interfere if there is insufficient evidence to support a finding by a lower court; R C Hammett Ltd v Crabb (1931) 145 LT 638; Rogers v Barlow & Son (1906) 94 LT 519; R C Hammett Ltd v LCC (1933) 97 JP 105; Pearce v Cullen (1952) 96 Sol Jo 132.

Mitigation must not be confused with defence. In Marshall v Herbert [1963] Crim LR 506 on a charge of being in possession of underweight loaves of bread contrary to art 3(1) of the Bread Order 1952, it was held that the case must go back to the magistrates with a direction to convict because assuming that the Justices were entitled to find that the déficiences were due to causes beyond the defendant's control (staff illness) there was no evidence that he had taken all reasonable precautions and exercised all due diligence. He had carried on business with inefficient ovens and should therefore have taken strict precautions. It was also unexplained why he did not check the weight of loaves himself which was an elementary precaution.

The burden of proof is on the defendant. The words 'it is a defence of the person charged to prove' place the onus of proof upon the person charged. The prosecutor is under no obligation to prove that the defence was not fulfilled although, of course,

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he may cross examine witnesses giving evidence as to the due diligence system. The burden of proof is discharged on the balance of probability.

Every case depends on its own circumstances. There can be no standard system of due diligence. Trade or professional codes of practice may contribute to a due diligence system but cannot fulfil the whole burden of proof. There is no provision in this Act for codes of practice with statutory authority in relation to due diligence as there are in Part V of the Weights and Measures Act 1985 and Part III of the Consumer Protection Act 1987.

In Zawadski v Sleigh [1975] RTR 113 (DC) in an appeal under the Trade Descriptions Act 1968, Lord Justice Parker said:

'Every case must depend upon its own circumstances and it is for the Justices to determine whether or not reasonable precautions and due diligence have been exercised in any individual case. What amounts to reasonable precautions will depend on all the circumstances. To say there is only one test which can be applied is not, in my judgment, justified... To lay down general tests of law in the absence of full argument is, in general, undesirable when the test ought to be applied to an ever changing situation and where the subject matter of the test is the question whether or not reasonable precautions have been taken and due diligence exercised'. Similarly, in Amos v Melcom (Frozen Foods) Ltd (1985) 149 JP 712 (DC), a case

concerning food quality but brought under the Trade Descriptions Act 1968, see post Neill LJ said:

'As I have already mentioned each case must depend on its own facts but it is important to underline that the section requires that the person charged must prove that he took all reasonable precautions and exercised all due diligence. The onus of proof is therefore placed quite firmly on the defendant. We therefore have to consider the nature of the evidence that was put before the magistrates, having regard to the fact that it was for the respondents to satisfy the court that the defence was made out. It was not for the prosecution, either by means of anticipation or indeed by cross examination, to encounter defences which had not been properly formulated.' For further comments on this case see post.

The defendant must have taken ALL reasonable precautions. What is reasonable must be determined on the size and resources of the defendants bunness. Subject to the degree of diligence which is reasonable in the light of the resources of the defendant (see Garrett v Boots The Chemists Ltd (1980) post) the due diligence system must be a comprehensive one involving all reasonable precautions and not merely some reasonable precautions.

In Sherratt v Geralds the Amencan Jewellers (1970) 114 Sol Jo 147, the defendants were charged for selling a watch described as waterproof when in fact it was not contrary to s l(l)(ò) of the Trade Descriptions Act 1968. It was held on appeal that the defences in s 24(1 )(J) and (b) of the Act had to be proved on the balance of probability, the burden of proof being on the defendants, and per Lord Parker CJ, while there was evidence that the defendants had discharged the burden of proof under para (a) by relying on the reputation and experience of the wholesalers there was no evidence to bring themselves within para (b) since to do so they had to show that if no precautions had been taken there were none reasonably to be taken. 'All due diligence' clearly implied an obligation to take any reasonable precautions that could be taken and the elementary dipping of the watch into a bowl of water would have sufficed. The case was sent back to the Justices with a direction to convict.

In Garrett v Boots The Chemists Ltd (1980) unreported, the respondents had sold pencils containing an excess of lead and/or chromium contrary to the Pencils and Graphic Instruments (Safety) Regulations 1974 made under s 1 of the Consumer Protection Acts 1961 and 1971. Section 3 of the 1961 Act afforded a defence

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couched in similar terms to that in s 21(1) of this Act. The Company had been acquitted in the magistrates' court on the grounds that they had established on the balance of probabilities that they had taken all reasonable precautions and exercised all due diligence to avoid the commission of the offence. Those precautions consisted of the sending of a circular letter to suppliers six years before the offence, drawing their attention to draft regulations and requesting confirmation that the supplier knew of the draft regulations and that articles supplied measured up to the proposed requirements as to lead and chromium content. The respondents had verbal confirmation from their suppliers that goods supplied would conform to the regulations and relied on a declaration, a copy of which was produced to the court. The prosecutor appealed to the Divisional Court. The Lord Chief Justice, in referring the matter back to the magistrates with a direction to convict said, inter alia:

'"All reasonable precautions" are strong words. It has been suggested on behalf of the appellants, that one obvious reasonable precaution which could have been taken in the present case was to take random samples of the various batches of pencils which arrived at the premises of Boots The Chemists Ltd. Of course, I scarcely need to say that every case will vary as to its facts; what might be reasonable for a large retailer might not be reasonable for the village shop. But here, dealing with a concern the size of Boots, it seems to me that one of the obvious precautions to be taken was a random sample, whether statistically controlled or not. One does not know whether the random sample would have in fact produced detection of the errant pencils. It might have, it might not have. But to say that it was not a precaution which should reasonably have been taken does not seem to me to accord with good sense. Whether the circumstances may be so far as other retailers are concerned, on the facts of this case it seems to me that no bench of magistrates properly instructed in law, could properly have come to the conclusion that Boots The Chemists had discharged the burden here which lay upon them.' See also Beckett v Kingston Bros (Butchers) Ltd [1970] 1 QB 606; [1970] 1 All ER

715. In Taylor v Lawrence Fraser (Bristol) Ltd (1977) 121 Sol Jo 757, an importer

supplied to a shop a toy which had too high a lead content. He did not himself carry out any tests on the toys, which were imported from France, but relied on the defence that all due diligence had been exercised on the grounds that his premises were opposite those of the trading standards department and that he had invited trading standards officers to come and take samples from time to time which they had done. Peter Pain J, in giving first judgment, said that simply because he had a fair and proper relationship with the enforcing authority, the importer could hardly say that he had done enough. He could not shuffle off on the enforcing authority his responsibility for taking precautions.

In Hicks v S D Sullam Ltd (1983) DC, unreported, the above cases and others were applied. An importer of electric light bulbs which were labelled as 'safe' but which were found to have an excessively long resistor wire which could render the bulb holder live sought to rely on the defence in s24(l)(a) and (b) of the Trade Descriptions Act 1968 on the grounds that he had obtained the verbal assurance of the Taiwan manufacturer and Hong Kong purchasing agent that they were safe. Initially the Justices were referred to Teseo Supermarkets Ltd v Nattrass [1972] AC 153; [1971] 2 All ER 127 and on consideration of the facts relative to that judgment dismissed the case on the grounds that the defence of all reasonable precautions and all due diligence had been made out. Some 14 days later the prosecutor drew their attention to three further authorities; Shenatt v Geralds the American Jewellers Ltd (1970) 68 LGR 256; Taylor v Lawrence Fraser (Bristol) Ltd (1977) 121 Sol Jo 757; and Garrett v Boots The Chemists Ltd (1980), unreported. The Justices came to the conclusion that they had not properly directed themselves about the requirements of s 24 of the Act. The prosecutor appealed. The Divisional Court held that Sullam had 68


no system of random sampling of their own. They did not instruct independent electrical engineers in this country to examine the bulbs and report to them. They did not avail themselves of the possibility of professional sampling. The Hong Kong agent had never been asked to carry out independent checks and it is not without relevanace that they were outside the jurisdiction and in no danger of finding themselves the subject of proceedings under the Trade Descriptions Act 1968. Sullam could have sampled themselves and they could have taken independent professional advice. They did neither and the appeal must be allowed.

The control system must include adequate checks that are recorded, instructions and training for staff. In Baxters Butchers Ltd v Manley (1984) unreported, the company was charged under s 24(2) of the Weights and Measures Act 1963 in relation to the misrepresentation of the weight of lamb and under s 11(2) of the Trade Descriptions Act 1968 and the Price Marking (Meat) Order 1977 in respect of false indications of price and failure to indicate unit and selling prices. Defences under the relevant sections of each statute were pleaded and the company sought to prove that the offences were due to the act or default of an employee and that they had taken all reasonable precautions and had exercised all due diligence to avoid the commission of the offence. The magistrates found that the company had not satisfied these tests by virtue of the fact that (a) they had no check and record system, (b) no regular checks were made by the district manager and supervision was inadequate, (c) although new rules and legislation were sent to shops no instructions were given as to how the manager was to comply with the law, and (d) the shop manager had been to a residential training school on only two occasions. On appeal it was submitted that the magistrates had applied the wrong test, they had taken into account irrelevant considerations, they had disregarded certain facts, and their findings were perverse. In dismissing the appeal by the company Stephen Brown LJ considered the findings of the magistrates in detail and concluded that they were justified on the facts submitted to them to reach the conclusion they did. The Divisional Court was not setting its own standards and it was not in a position to assess the witnesses and the weight of evidence which they gave. Whether or not the defences were made out was a matter of fact for the Justices and there was no reason to find that they had misapplied the principles of law involved; Teseo v Nattrass [1972] AC 153, [1971] 2 All ER 127; Kinchin v Haines [1979] Crim LR 329 applied.

The foregoing case may be contrasted with Wright v Smith (1984) DC, unreported, in which the licensee of a bar and restaurant was charged with selling lesser quantities of lager than those purported to be sold contrary to s 24(1) of the Weights and Measures Act 1963. The respondent employed a skilled and experienced manager who had employed a bar maid and waitress who, although she had received no formal training from the respondent or his subordinates, had claimed to have had six months experience as a bar maid. The Justices dismissed the information on the grounds that the respondent had satisfied the defence in s 34(1) of that Act. The prosecutor appealed but Stephen Brown LJ said, in dismissing the appeal, that 'it seems to me that in this case on the findings of the Justices the respondent had discharged the onus on him according to the balance of probabilities. He had taken the reasonable precaution of appointing or at least being responsible via his own employers for the bar manager, who was a capable and competent man'. It should be noted that in this case the prosecution was not against the employing company but against the licensee.

The number of tests carried out must be sufficient and test results must be reported and considered. In Rotherham Metropolitan Borough Council v Ray sun (UK) (1988) unreported, it was held that a single packet of crayons selected from a batch of 10,800 dozen packets was insufficient and a system under which the single packet was submitted to an analyst who only reported the results of his test when fault was found was inadequate to fulfil the defence to a charge under s 1(1 )(b) of the Trade

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Descriptions Act 1968 and s 2(1) of the Consumer Protection Acts 1961 and 1971. The defendants had been charged in respect of a false trade description 'poisonless' applied to crayons containing an excess of lead and the sale of the crayons contrary to regulations made under the 1961 Act. The Justices had dismissed the cases on the grounds that a defence of all due diligence and all reasonable precautions had been made out because the defendants were in receipt of assurances as to testing and compliance with the regulations by their overseas suppliers and had arranged for the single packet from each year's consignment to be tested by an analyst. The prosecutor's appeal to the Divisional Court was upheld.

Lack of expert knowledge is no defence. In Sutton London Borough v Perry S anger & Co Ltd (1971) 135 JP Jo 239, on a charge under s 1(1)(δ) of the Trade Descriptions Act 1968 of supplying goods to which a false trade description had been applied (here the sale of as crossbred dog as a Shetland Sheepdog) the Divisional Court held, allowing the prosecutor's appeal, that the fact that the defendants were dealers and not breeders and hence not experts in dogs did not absolve them from taking reasonable steps and the exercise of due diligence, and that these steps were in fact more onerous because of their lack of expert knowledge. In the present case no precautions had been taken and no diligence exercised since they had merely relied on the description given to the puppy by the person from whom they had bought it, the unsigned pedigree certificate which he supplied, and the fact that the puppy had been inoculated by a veterinary surgeon who did not query that it was a Sheltie. The case was remitted with a direction to convict.

A blanket assurance from a supplier is not enough. In Riley v Webb (1987) 151 JP 372 the defendants sold goods which included pencils containing an excess of soluble hexavalent chromium contrary to the Pencils and Graphic Instruments (Safety) Regulations 1974. The goods were not imported by the defendants but by a United Kingdom importer who was not prosecuted because of the passage of time since their sale to the retailer. The defendants had, however, sought and obtained an assurance from the supplier that all goods would conform to statutory requirements and their order forms made such compliance a condition of the contract. In proceedings before the Magistrates they relied on the defence in s 3(2B) of the Consumer Protection Act 1961 as amended by s 1 of the Consumer Protection Act 1971. With reference to the size and nature of the defendant's business the Justices found that all reasonable precautions and all due diligence had been exercised and they dismissed the informations. On appeal by the prosecutor to the Divisional Court it was held that the defendants had to do some positive act to satisfy the criteria of the defence. They could have asked for a specific assurance in relation to the goods but could not rely on a blanket condition. The appeal was allowed.

Due diligence must be exercised by those having the directing mind or will of the company. It is clear that the establishment and operation of a due diligence system must be by persons acting in the position of the ego or alter ego of the company; see Beckett v Kingston Bros (Butchers) Ltd [1970] 1 QB 606; [1970] 1 All ER 715; Teseo Supermarkets v Nattrass [1972] AC 153; [1971] 2 All ER 127; Lennard's Carrying Co Ltd v Asiatic Petroleum Co Ltd [1915] AC 705 at 713, 714 and H L Bolton (Engineering) Co LtdvTF Graham & Sons Ltd [1957] 1 QB 159, [1956] 3 All ER 624. The law does not prevent the delegation of responsibility for the due diligence system to an employee or an agent.

Delegation of the inspection of goods. The extent to which the personal inspection of goods by the defendant or the delegation of that task to an employee or agent was considered in Amos v Melcom (Frozen Foods) Ltd (1985) 149 JP 712 in which proceedings were brought under s 1(1)(6) of the Trade Descriptions Act 1968 in respect of silverside of beef which was sold under the false trade description 'rump steak'. The defendants sought to rely on a defence under s 24(1) and (3) of that Act

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in that they had relied on information given to them by their suppliers and that they did not know and could not with reasonable diligence have ascertained that the goods did not conform to the description which had been applied to the goods. The Company had employed an experienced butcher to check products being sold and relied on his skill to satisfy the defences. In applying Teseo Supermarkets Ltd v Nattrass [1972] AC 153; [1971] 2 All ER 127 and Wandsworth London Borough Council v Bentley [1980] RTR 429, Neill LJ said:

'the cases to which we have been referred establish that what precautions have to be taken and what steps have to be taken for due diligence to be exercised, will vary according to the circumstances. Sometimes personal inspection will be necessary. On other occasions a system of inspection by some subordinate person may be appropriate and it will then be necessary to show that the system of inspection is adequate and also usually that there is adequate supervision of that inspection by the junior employee. Furthermore, where for some reason the individual concerned may not be in a position to check the information himself or it is difficult to do so, there may be a duty on him to find out from the persons who supplied him with the goods, what system or systems they may have operated to make certain that no offence under the Act was likely to take place.' The appeal of the prosecutor against the dismissal of the informations by the

Magistrates was upheld. In concurring, Tudor Evans J said: Ί would only add that in my view there must be cases where the size and organisation of a business is such that the requirement for supervision by a superior of the company is unnecessary and impracticable.'

The precautions to be taken must be reasonable bearing in mind the nature of the operation. In Bibby-Cheshire v Golden Wonder Ltd [1972] 3 All ER 738; [1972] 1 WLR 1487, DC; Golden Wonder were the manufacturer of packets of potato crisps. A retailer sold a packet of crisps in a bag marked '15 grams' when its content in fact weighed only 9 grams. An information was preferred against Golden Wonder Crisps alleging that they were liable under s 27(4) of the Weights and Measures Act 1963 for the offence of selling the bag under-weight since it was due to their act or default. The Justices found that the bags of crisps were filled by machines, that Golden Wonder used the best available but none was sufficiently accurate to produce no under-weight bags, that it was economically impossible to weigh individually 20m bags produced weekly and there was an efficient system of random checking which ensured that no machine consistently produced under-weight bags. They therefore held that Golden Wonder had established a defence under the previous provisions of s 26(1) of the Weights and Measures Act 1963. On appeal by the prosecutor it was held that the Justices were justified in finding that the defence had been established and the appeal was dismissed.

Default of staff within a due diligence system. In the leading case, Teseo Supermarkets Ltd v Nattrass [1972] AC 153, [1971] 2 AU ER 127, the question of the act or default of a shop manager within an adequate due diligence system was considered. The ultimate judgment of the House of Lords foUowing appeals from the decision of the magistrates and the judgment of the Divisional Court, considered the structure and operation of the appellant's due diligence system and the act or default of their manager within that system. The case was brought under s 11 of the Trade Descriptions Act 1968 and the defence was that in s 24 of that Act which was of the two-limbed variety in that the Company had to prove both the act or default of their manager and the taking of aU reasonable precautions and the exercise of all due diligence. Although generaUy considered to be the leading case on due dihgence its applicability to this section is limited by virtue of its containing a single-limbed defence in sub-s (1) and the 'deemed' provisions of sub-ss (3) and (4).

The facts were that the appeUant company owned a large number of supermarket stores and set up a reasonable and efficient system of instruction and inspection for

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ensuring that their employees complied with the requirements of the Act. One shop displayed a poster for washing powder which read: 'Radiant Is off. Giant size 2s l id ' . In fact, the offer applied only to 'flash' packets formerly marked 'Is off the recommended price'. The shop had run out of flash packets and none were displayed on the date of the offence. Ordinary packets were on sale at 3s l id . A purchaser saw the poster, looked for the price reduced packets, saw none, took an ordinary packet and had to pay 3s 1 Id for it.

What had happened was that on the evening before the commission of the offence, a shop assistant, R, whose duty it was to put the packets on display for sale, had discovered that there were no packets displayed for sale at 2s l id and no packets marked with that price available for display. She had therefore put out packets marked with the price of 3s l id . She had not reported to C, the shop manager, that there were no 2s 1 Id packets on display. It was C's duty to check the display of special offers and to enter in a book that he had done so. In the entry for the day of the offence he had written 'all special offers OK' when in fact no packets of the special offer of Radiant Giant Size were being offered for sale at 2s l id each. The company was prosecuted for an offence against s 11(2) of the Trade Descriptions Act 1968 and gave notice under s 24(2) alleging that the commission of the offence was due to the act or default of C, the store manager.

The magistrates had found that the original act or default was that of R and that the act or default of C was in his failure to instruct or supervise R. Although the Justices found that the commission of the offence was due to the act or default of C and that the company had taken all reasonable precautions and exercised all due diligence, C was held not to be 'another person'—ie, a person other than the company—and the defence failed. The Divisional Court found that C was 'another person' for the purposes of s 24(1 )(a) but that his act or default was to be considered under s 24(1)(ό) as a failure of due diligence in that he failed in his responsibility to ensure that the precautionary system devised by his employers worked. For the failure to exercise such due diligence, by the theory of delegation it propounded (following R C Hammett Ltd v LCC (1933) 97 JP 105 and Series v Poole [1969] 1 QB 676, [1967] 3 All ER 849) the Divisional Court found the company responsible.

The Company appealed to the House of Lords which, allowing the appeal, confirmed the ruling of the Divisional Court that C was 'another person' for the purposes of s 24(1 ){a) in that he was neither the ego nor alter ego of the company, but rejected the Divisional Court's principle of liability by way of delegation which fell upon the company for the default of C in carrying out its purpose of exercising due diligence by not checking the action of R. On this issue, not only the decision of the Divisional Court in the present case, but its ruling in R C Hammett Ltd v LCC and in S mes v Poole supra, were held to be wrong.

The House of Lords found that a defendant's responsibility for all reasonable precautions and all due diligence under s 24(1 )(ò) was limited to the defendant in person if he were an individual, or if he were a company, as in the case of Teseo, the company itself and the actions only of those within its ego or alter ego. The error of the shop manager in pursuit of his responsibility for exercising diligence by supervising the work of subordinates was as much an 'act or default' within s24(l)(a) as an act or default in the actual commission of the offence, such as was R's action. There is no logical distinction between default in acting and default in supervising in this connection. A company with very many shops is required to do no more than devise a proper system to ensure that the law is complied with, and to set up a good arrangement for ensuring a regular check on the carrying out of the system. Thus a defendant, having taken all due precautions to avoid the commission of an offence and set up a satisfactory system to check by way of diligence, is thereafter relieved of the burden of responsibility for an offence proved to be due to the act or default of any other person, whether in his employ or not, who was not in the position of his ego or his alter ego in the sense of being fully delegated to act as

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himself. The House of Lords accordingly allowed the appeal and quashed the conviction.

This judgment was followed in the later and similar case of Nattrass v Timpson Shops Ltd [1973] Crim LR 197.

Other cases on due diligence There have been numerous other judgments of the superior courts on the meaning of 'all reasonable precautions and all due diligence'. Many of them were concerned with the particular problems of false trade descriptions in relation to motor vehicles and are not particularly helpful in the context of the food industries. However, the following cases did touch upon more general trading problems and may be instructive:

Fayers v Gasson and Rayner (1975) 139 JP 546—precautions to avoid short weight coal bags;

Hanngey London Borough Council v Piro Shoes Ltd [1976] Crim LR 462—description of product and instructions to managers;

Jenkins vWS Brookes & Sons [1956] Crim LR 262—failure of due diligence system.

Bucknall v F W Stevenson Ltd (1948) unreported—information to employees about a fault in production;

Read v West Wales Bakenes Ltd (1962) 60 LGR 515—short weight loaves of bread; responsibility of defendant company to prove due diligence;

Ellis v Pnce (1968) 66 LGR 404—faulty equipment leading to short weight loaves of bread;

Unwin v Toole [1976] Crim LR 583—accidental loss of weight ticket on coal not sufficient to satisfy defence;

North Yorkshire County Council v Holmersterne Farm Co Ltd (1985) 150 JP 124— short weight meat products; checking system found to be adequate;

Westminster City Council v Turner and Gow (1984) unreported—defendants acquitted on grounds of all due diligence without having given evidence.

Prepared the food. By virtue of the definitions of 'preparation' and 'treatment' in s 53, it is clear that manufacturers, processors and caterers fall within s21(2)(a) and must therefore prove a full due diligence system as required under sub-s (1) if they wish to avail themselves of the defence. Retailers who themselves manufacture food would similarly be held to have prepared the food. Bearing in mind the definition of 'treatment' to include subjecting food to heat or cold it would appear that a retailer who bought in fresh or chilled food and then froze it, or one who bought in raw food and cooked it, would be held to have prepared the food. In such circumstances, the retailer could not take advantage of the 'deemed' provisions of sub-ss (3) and (4). In a case concerning the meaning of a similar definition of 'preparation' in s 132 of the Food Act 1984, it was held that the slicing of various types of cooked meats was not the preparation of such meats and it was not therefore necessary for the premises to be registered for the purposes of s 16(l)(ii) of that Act; see Leeds City Council v JHDewhurst Ltd (1990), The Times 22 March.

For a discussion as to manufacturers who are wholly owned subsidiaries of a retailer see post.

The courts have considered the meaning of 'manufacture' from time to time in an attempt to distinguish between the actual production of the food and putting food into a form for easy consumption. In McNicol v Pinch [1906] 2 KB 352, and Gamble v Jordan [1913] 3 KB 149, it was held that for a person to be a manufacturer of ice cream he must actually bring it into being as such. In Customs and Excise Comrs v Savoy Hotel Ltd [1966] 2 All ER 299; in determining whether orange juice was a

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'manufactured beverage' for the purposes of the Purchase Tax Act 1963, it was held that the mere squeezing of half of a whole orange to obtain the juice was not manufacture. In a case on the same point, Beecham Foods v Customs and Excise Comrs [1969] 3 All ER 135, [1969] 1 WLR 1518, it was held that Ribena, a prepared liquid consisting of black currant syrup and added vitamin C, was a manufactured beverage.

The definition of preparation in s 53, would appear to bring all such treatments or processes within sub-s 21(2)(a).

Import. By virtue of s 53, 'importation' has the same meaning as it has for the purposes of the Customs and Excise Management Act 1979 and 'import' shall be construed accordingly. Section 1(1) ofthat Act defines 'importer' as being, 'in relation to any goods at any time between their importation and the time when they are delivered out of charge, any owner or other person for the time being possessed of or beneficially interested in the goods. . . ' . It is therefore clear that for the purpose of determining whether a person has imported food into Great Britain for the purposes of s 21(2)(ό), regard must be had not only to title in the food but possession of it. Thus a retailer who buys food from an overseas suppher directly has title to the food and is the importer. It is also the case, although perhaps of little practical consequence, that an agent handling the shipment for such a retailer who has possession of the food and takes it through customs control may also be an importer. In these circumstances, of course, the retailer cannot take advantage of the 'deemed' provisions of sub-ss (3) or (4) and must exercise full due diligence.

By virtue of the application of this Act to Great Britain and the foregoing definition it is clear that an importer is one who imports food into Great Britain. The term should not be confused with its meaning in certain EEC Directives and Regulations where it means one who brings food into the European Community.

Shall be taken to have established the defence. The provisions of sub-ss (3) and (4) of this section are entirely new and have been provided to give some protection to retailers in the absence of a specific defence of warranty.

Although sub-ss (3) and (4) are not specifically applied to retailers and may have some application to wholesalers, brokers, agents or others who have not prepared the food nor have imported it, their purpose is to achieve an equitable balance of criminal liability between manufacturers and importers and retailers.

Act or default. This means wrongful acts or defaults and it is therefore unnecessary to prove that the act or default involved mens rea or negligence. The mere selling of an article deficient in quality is an act or default such as this section contemplates (Lamb v Sunderland& District Creamery Ltd [1951] 1 AU ER 923, 115 JP 300). Thus where the section creates an absolute offence, regardless of negligence, it is no defence that in the manufacture of the article all due diligence was used to avoid the commission of the offence (Lindley v George W H orner & Co Ltd [1950] 1 All ER 234, 114 JP 124).

Proof of the act or default of the other person is necessary and it is not sufficient that the contravention may have been due to his act or default and that the original defendant is clearly innocent, see Moore v Ray [1951] 1 KB 98, [1950] 2 AU ER 561.

In a case under s 24 of the Trade Descriptions Act 1968, where it is necessary to prove both the act or default of another person and all reasonable precautions and all due diligence it was held that it was not necessary for the defendant to identify the precise person responsible for the act or default but he was obliged, on the balance of probabilities, to prove that all reasonable steps had been taken to investigate who was responsible for the offence. Thus in McGuire v Sittingbourne Co-operative Society Ltd [1976] Crim LR 268, Lord Widgery CJ said that this was necessary if the administration of the act was not to slide down to the slipshod level at which all a defendant would have to do would be to say in general terms that the default must

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have been due to somebody in the shop, one of the girls, or some expression like that to satisfy the onus cast on him.

See also Hall v Farmer [1970] 1 AU ER 729; [1970] 1 WLR 366; Meah v Roberts, Lanlsey v Roberts [1978] 1 AU ER 97; [1977] 1 WLR 1187; R v ICR Haulage Ltd [1944] KB 551, [1944] 1 All ER 691; Moore v Bresler Ltd [1944] 2 All ER 515, and DPP v Kent and Sussex Contractors Ltd [1944] KB 146, [1944] 1 All ER 119.

In the perverse case of Sedgwick v Ernest Ostler Ltd [1963] Crim LR 109 the defendants were charged by way of the by-passing provisions of s 113(3) of the Food and Drugs Act 1955. The contravention for which they were allegedly responsible concerned a sale by retailers of a substance called marzipan which did not contain ground almonds and could not therefore answer this description. The retailer had an invoice from the defendants describing the substance as marzipan. The information was dismissed and it was held on appeal that the prosecution had failed to prove an act or default by the defendants because it was not clear whether the retailer had been influenced by the description on the defendant's invoice and had therefore sold the goods as marzipan. Although the invoice raised a prima facie case, there remained real doubt and the appeal was dismissed. Another person. For the purposes of other statutes such as the Trade Descriptions Act 1968 where the two-limbed defence of 'act or default of another person AND all reasonable precautions and all due diligence' apply, it has been held that another person can be an employee providing he is not in a position as the ego or alter ego of his employing company, see Teseo Supermarkets Ltd v Nattrass [1972] AC 153, [1971] 2 All ER 127. This principle must apply to proceedings under s 20. For the purposes of this section, however, 'another person' cannot be an employee because of the words 'who was not under his control'. In the context of this section, therefore, another person may be a supplier, an agent or a professional adviser not in the employ of the defendant.

Not under his control. Whether or not a person is under the control of another is a question of fact. This term is new to food law but it is clear that an employee is under the control of his employers. Independent suppliers of retailers' own-label products The question arises as to whether a retailer of own-label products has his supplier under his control by virtue of the fact that he prescribes a specification for his products, approves the labelling and, perhaps, lays down certain standards of production and testing. It is submitted that where the retailer is buying his own-label products from an independent supplier that supplier is not under the control of the retailer. The relationship is a contractual one and the supplier is free to accept or reject the retailer's business. Where the supplier is a wholly owned subsidiary of a retailer In some cases the supplier of own-label products to a retailer is a wholly owned subsidiary of the retailer. This is a growing trend and it follows that the retailer in such cases has a greater degree of control than when dealing with an independent supplier. Much may depend on whether the supplier in these circumstances is a separate registered company (legal person) and has an independent board of directors. Agents and professional advisers Another growing trend in the food industry is the employment of independent laboratories, statisticians, marketing experts, lawyers and technicians to carry out purchasing and control functions in relation to food. Where such persons are used by retailers the question of control is of some importance in deciding on the application of the deemed provisions of sub-ss (3) and (4). In some cases the relationship may be a contractual one in which case there may be no control within the meaning of this section. In others the relationship may be nearer to that of employer and employee in which case there is control. Reliance on information supplied. In the context of the absolute offences in ss 8,

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14, and 15, it must be assumed that the information relied upon must be such that any responsible person would accept and the nature of which was relevant and would stand up to reasonable scrutiny. This proposition was proved in Barker v Hargreaves (1980) 125 Sol Jo 165, DC in a case where the defence in s 24 of the Trade Descriptions Act 1968 which incorporates the same provisions was tested. A test certificate for a motor vehicle bore a standard wording that it could not be relied on as to the condition of the vehicle. It was held that such a document could not be relied upon to fulfil the defence. This interpretation is consistent with the intention that sub-ss (3) and (4) should provide retailers with qualified warranty protection as formerly offered by s 102 of the Food Act 1984.

Unlike the provisions of s 102(5) of the Food Act 1984 which provided that a name or description entered in an invoice should be deemed to be a warranty, any information relied upon for the purpose of sub-ss (3) and (4) must, it is submitted, be of a specific nature relevant to the product concerned and the offence charged. Retailers should, therefore, seek specific assurances from suppliers that named products comply in all respects with this Act and subordinate legislation made under it or continued in force by virtue of it.

Sub-s (3)(6). This sub-section should be read with sub-s (4)(ò) from which it is clear that is applies principally to products being sold under a retailers's own name or mark. The intention behind it is that someone, somewhere in the manufacturing to distribution chain must carry out all checks on the food as are reasonable in all the circumstances. Consistent with the judicial interpretation of 'all reasonable precautions and all due diligence' this sub-section would appear to require that the checks being carried out by the supplier, or those being carried out by the retailer, or a combination of the two, should satisfy the generally accepted standards of due diligence.

Did not know and had no reason to suspect/did not know and could not reasonably have been expected to know. These words, as used in sub-ss (3) and (4), differ from the requirements of section 102(2)(δ) of the Food Act 1984 which they are intended, in part, to replace. In the 1984 Act it was necessary for a defendant wishing to plead a defence of warranty to show, inter aha, that he 'had no reason to believe at the time of the commission of the offence' that the food was other than as warranted. In this section the more onerous requirement in sub-s (3) is proof that the defendant 'did not know and had no reason to suspect' that his act or omission would amount to an offence. In sub-s (4) the words 'reason to suspect' are replaced by 'reasonably have been expected to know'. In sub-s (3) a higher burden of responsibility is imposed because of the requirements of sub-s (3)(ό) in relation to food being sold under the defendant's own name or mark. Where contracts are being agreed for the manufacture and supply of own-label products for major retailers it is common practice for the retailer to lay down, or at the very least agree to, a detailed recipe and the contents of a label. It is also common for minimum standards of hygiene to be required of suppliers. In these circumstances it would be difficult for a retailer to prove, on the balance of probability, that he did not know and had no reason to suspect that a product was unlawful.

On the other hand, a retailer pleading the defence in sub-s (4) in respect of a manufacturer's branded product could not be reasonably expected to know that a product was unlawful when he had played no part in laying down its composition, labelling or hygiene.

Of interest, but limited authority, is the judgment in Blaydon Co-operative Society v Young (1916) 80 JP 451 where the words 'no reason to believe' were considered. In the first instance the magistrates found that the appellants were aware that the article was not of the nature, substance or quality demanded and had reason to believe that it was otherwise than as demanded. However, on appeal, it was held by the Divisional Court that there was no evidence to support that finding other than

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what the label said and this was insufficient to support the view that they really were aware that the food was deficient in some way. The position would have been different if the magistrates had merely declared themselves dissatisfied that the defence had been made out, but they went far beyond in finding affirmatively that the appellants knew of the adulteration and had reason to believe that it was so adulterated on the evidence. See also R v Banks [1916] 2 KB 621; R v Harrison [1938] 3 All ER 134; and Nakkuda Alt vjayartine [1951] AC 66, PC.

Sub-s (4XÒ). This sub-section restricts the less burdensome deemed' provisions of sub-s (4) to foods which are not sold under a supplier's name or mark, ie branded foods. It is submitted that this provision applies where the food is sold or intended to be sold under the seller's own name or mark notwithstanding the possibility that it may also be marked with a supplier's name or word such as 'supplied to' or 'manufactured for'.

22. Defence of publication in the course of business. In proceedings for an offence under any of the preceding provisions of this Part consisting of the advertisement for sale of any food, it shall be a defence for that person charged to prove— (a) that he is a person whose business it is to publish or arrange for the

publication of advertisements; and (b) that he received the advertisement in the ordinary course of business

and did not know and had no reason to suspect that its publication would amount to an offence under that provision.

General. This defence is also new to food law but it is in the same form as that provided in s 25 of the Trade Descriptions Act 1968. The defence is intended to protect a person who has innocently published an advertisement for food which is unlawful. Definitions. For 'advertisement' see s 53(1). For 'food' see s 1(1). For 'business' see s 1(3). Publish. The ordinary meaning of 'publish' is to make public; see Boucicault v Chatterton (1876) 5 Ch D 267, CA; and McF ariane v Hulton [1899] 1 Ch 884. Ordinary course of business. As to the meaning of this term in connection with a mercantile agent, see De Gorter v Attenborough & Son (1904) 21 TLR 19 and Janench v Attenborough & Son (1910) 102 LT 605.

Miscellaneous and supplemental

23. Provision of food hygiene training. (1) A food authority may provide, whether within or outside their area, training courses in food hygiene for persons who are or intend to become involved in food businesses, whether as proprietors or employees or otherwise.

(2) A food authority may contribute towards the expenses incurred under this section by any other such authority, or towards expenses incurred by any other person in providing, such courses as are mentioned in subsection (1) above.

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General. This section authorised food authorities to provide training for persons engaged in food businesses and to contribute to the costs of so doing. Ministers are empowered to make regulations requiring such training by virtue of s 16(1) and para 5(3)ofSchl.

Definitions. For 'food authority' see s 5. For 'food business' see s 1(3). For 'proprietor' see s 53(1).

24. Provision of facilities for cleansing shellfish. (1) A food authority may provide, whether within or outside their area, tanks or other apparatus for cleansing shellfish.

(2) A food authority may contribute towards the expenses incurred under this section by any other such authority, or towards expenses incurred by any other person in providing, and making available to the public, tanks or other apparatus for cleansing shellfish.

(3) Nothing in this section authorises the establishment of any tank or other apparatus, or the execution of any other work, on, over or under tidal lands below high-water mark of ordinary spring tides, except in accordance with such plans and sections, and subject to such restrictions and conditions as may before the work is commenced be approved by the Secretary of State.

(4) In this section 'cleansing', in relation to shellfish, includes subjecting them to any germicidal treatment.

General. This section re-enacts the long standing provisions of s 30 of the Food Act 1984. The Public Health (Shell Fish) Regulations 1934, are relevant to this section.

Definitions. For 'food authority' see s 5.

25. Orders for facilitating the exercise of functions. (1) For the purpose of facilitating the exercise of their functions under this Part, the Ministers may by order require every person who at the date of the order, or at any subsequent time, carries on a business of a specified class or description (in this section referred to as a 'relevant business')— (a) to afford to persons specified in the order such facilities for the taking

of samples of any food, substance or contact material to which subsection (2) below applies; or

(b) to furnish to persons so specified such information concerning any such food, substance or contact material,

as (in each case) is specified in the order and is reasonably required by such persons.

(2) This subsection applies to— (a) any food of a class specified in the order which is sold or intended to be

sold in the course of a relevant business for human consumption; (b) any substance of a class so specified which is sold in the course of such

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a business for use in the preparation of food for human consumption, or is used for that purpose in the course of such a business; and

(c) any contact material of a class so specified which is sold in the course of such a business and is intended to come into contact with food intended for human consumption.

(3) No information relating to any individual business which is obtained by means of an order under subsection (1) above shall, without the previous consent in writing of the person carrying on the business, be disclosed except— (a) in accordance with directions of the Minister, so far as may be necess

ary for the purposes of this Act or of any corresponding enactment in force in Northern Ireland, or for the purpose of complying with any Community obligation; or

(b) for the purposes of any proceedings for an offence against the order or any report of those proceedings;

and any person who discloses any such information in contravention of this subsection shall be guilty of an offence.

(4) In subsection (3) above the reference to a disclosure being necessary for the purposes of this Act includes a reference to it being necessary— (a) for the purpose of securing that food complies with food safety requir-

ments or in the interests of the public health; or (b) for the purpose of protecting or promoting the interests of consumers;

and the reference to a disclosure being necessary for the purposes of any corresponding enactment in force in Northern Ireland shall be construed accordingly.

General. With the exception of ss 29 (procurement of samples), 30 (analysis of samples), and 32 (powers of entry), all enforcement powers under this Act will be derived from Orders made under this section or regulations made under s 17 (enforcement of Community provisions), and s 31 (regulations for sampling and analysis). The foregoing sections provide the basis of enforcement of the Act but the details of such enforcement, such as those in the Directive on the Official Control of Foodstuffs (89/397/EEC), will be provided by Orders made under this section. It will be noted that the powers conferred by this section are wide and flexible thus enabling Ministers to ensure that any risk as to food safety or consumer protection is quickly dealt with.

The restrictions on the disclosure of information in sub-ss (3) and (4) differ from those in s 87 (5) of the Food Act 1984. The circumstances in which information may be disclosed are now specified. It should be noted that disclosure as provided in sub-s (4)(a) and (b) may only occur where directions are given by the Minister. Definitions. For 'the Ministers', 'substance', 'preparation' and 'human consumption' see s 53(1). For 'food' see 1(1). For 'business' and 'contact material' see 1(3). For 'sell' see 2(1). For 'food safety requirements' see 8(2).

26. Regulations and orders: supplementary provisions. (1) Regulations under this Part may— (a) make provision for prohibiting or regulating the carrying out of com-

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mereiai operations with respect to any food, food source or contact material— (i) which fails to comply with the regulations; or

(ii) in relation to which an offence against the regulations has been committed, or would have been committed if any relevant act or omission had taken place in Great Britain; and

(b) without prejudice to the generality of section 9 above, provide that any food which, in accordance with the regulations, is certified as being such food as is mentioned in paragraph (a) above may be treated for the purposes of that section as failing to comply with food safety requirements.

(2) Regulations under this Part may also— (a) require persons carrying on any activity to which the regulations apply

to keep and produce records and provide returns; (b) prescribe the particulars to be entered on any register required to be

kept in accordance with the regulations; (c) require any such register to be open to inspection by the public at all

reasonable times and, subject to that, authorise it to be kept by means of a computer;

(d) prescribe the periods for which and the conditions subject to which licences may be issued, and provide for the subsequent alteration of conditions and for the cancellation, suspension or revocation of licences;

(e) provide for an appeal to a magistrates' court or, in Scotland, to the sheriff, or to a tribunal constituted in accordance with the regulations, against any decision of an enforcement authority, or of an authorised officer of such an authority; and

( / ) provide, as respects any appeal to such a tribunal, for the procedure on the appeal (including costs) and for any appeal against the tribunal's decision.

(3) Regulations under this Part or an order under section 25 above may— (a) provide that an offence under the regulations or order shall be triable in

such way as may be there specified; and (b) include provisions under which a person guilty of such an offence shall

be liable to such penalties (not exceeding those which may be imposed in respect of offences under this Act) as may be specified in the regulations or order.

General. This section extends the regulation making powers of Ministers as to commercial operations, deemed provisions as to the food safety requirement, records, returns, registers, licences, appeals against decisions of an enforcement authority, modes of trial and penalties.

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Part III: Administration and Enforcement

Part III Administration and Enforcement

Introduction. This Part provides for the administration of the Act, sampling and analysis, powers of entry and obstruction, offences and appeals. Section 28 requires every food authority in England and Wales, except for non-metropolitan district councils and the treasurers of the Inner Temple and the Middle Temple, and the regional or island councils in Scodand to appoint one or more public analysts and, if appropriate, deputy public analysts. The Ministers are empowered to make regulations prescribing the qualifications which public analysts should possess. Provision is made for the remuneration of public analysts and no public analyst may be directly or indirectly engaged in a food business. Section 29 provides for the provision of faciHties for the microbiological examination of food. Section 30 re-enacts the substance of s 78 of the Food Act 1984 as to the procurement of samples. The powers have been extended to include sources and contact materials and special provision is made for samples, articles or substances which may be required as evidence in proceedings. The separate provisions as to milk sampling in the Food Act 1984 have not been re-enacted. Section 31 provides for the analysis and examination of samples. Authorised officers may submit samples to a public analyst in the area where the sample was procured or to such an analyst for the area of the food authority or to an examiner. Persons other than authorised officers may also submit samples for analysis but the submission must be to the public analyst for the area in which he made his purchase or to a food examiner.

The provisions as to analysis procedures and the reporting of results of analysis are unchanged from the Food Act 1984. Section 32 confers new powers on the Ministers for the regulation of sampling and analysis. Such regulations will replace the detailed provisions of the Food Act 1984 as to the manner of procuring samples, the method of dealing with samples, notices to be given to persons in charge of food or food sources, the methods of analysis to be used and references to the Government Chemist or other food analyst or examiner. Section 33 re-enacts the powers of entry to premises in s 87 of the Food Act 1984 but provides new powers as to the inspection of records and access to computers and associated apparatus and material. The unauthorised disclosure of information with regard to trade secrets unless done in the performance of a duty under the Act is an offence. Section 34 creates offences for the obstruction of persons acting in the execution of the Act and the giving of false or misleading information. No person is required to answer any question or give any information which may be incriminating. Section 35 introduces new time limits on prosecutions. The limits are now three years from the commission of the offence or one year from its discovery by the prosecutor thus bringing the time limits in this Act into Une with those in the Trade Descriptions Act 1968. Section 36 provides for penalties and modes of trial. Section 37 re-enacts s 94 of the Food Act 1984 as to offences by bodies corporate. Section 38 provides for appeals to magistrates' courts or the sheriff against the actions of an enforcement authority in relation to improvement notices, prohibition

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notices, emergency prohibition notices and licences. Section 39 provides for appeals to the Crown Court in respect of dismissals by magistrates of appeals made under s 38 and the exercise of the powers in s 36(4) by magistrates in relation to prohibition orders. Section 40 specifies the action which may be taken by an appellate court in relation to improvement notices.

Administration

27. Appointment of public analysts. (1) Every authority to whom this section applies, that is to say, every food authority in England and Wales and every regional or islands council in Scotland, shall appoint in accordance with this section one or more persons (in this Act referred to as 'public analysts') to act as analysts for the purposes of this Act within the authority's area.

(2) No person shall be appointed as a public analyst unless he possesses— (a) such qualifications as may be prescribed by regulations made by the

Ministers; or (b) such other qualifications as the Ministers may approve, and no person shall act as a public analyst for any area who is engaged directly or indirectly in any food business which is carried on in that area.

(3) An authority to whom this section applies shall pay to a public analyst such remuneration as may be agreed, which may be expressed to be payable either— (a) in addition to any fees received by him under this Part; or (b) on condition that any fees so received by him are paid over by him to

the authority.

(4) An authority to whom this section applies who appoint only one public analyst may appoint also a deputy to act during any vacancy in the office of public analyst, or during the absence or incapacity of the holder of the office, and— (a) the provisions of this section with respect to the qualifications, appoint

ment, removal and remuneration of a public analyst shall apply also in relation to a deputy public analyst; and

(b) any reference in the following provisions of this Act to a public analyst shall be construed as including a reference to a deputy public analyst appointed under this subsection.

(5) In subsection (1) above 'food authority' does not include the council of a non-metropolitan district, the Sub-Treasurer of the Inner Temple or the Under Treasurer of the Middle Temple; and in subsection (2) above the reference to being engaged directly or indirectly in a food business includes a reference to having made such arrangements with a food business as may be prescribed by regulations made by the Ministers.

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General. The appointment of a public analyst is mandatory on all food authorities in England and Wales except for non-metropolitan district councils and the Sub-Treasurer of the Inner Temple and the Under-Treasurer of the Middle Temple. In Scotland, such appointments must be made by the regional or island councils. It should be noted that regional councils in Scotland are not food authorities (see s 5(2)), but they are required to appoint public analysts to serve the district councils within their areas.

The prohibition on public analysts being engaged directly or indirectly in any food business which is carried on in the area to which their appointments apply is new and controversial. Many public analysts carry out work for the food industry in addition to their duties as public analysts. From the date of commencement of this section it will be unlawful to carry out any such work for a food business falling within the area of the local food authority by whom they are appointed.

The provisions as to the appointment of deputy public analysts, the qualifications of public analysts and their remuneration are unchanged from the Food Act 1984. Definitions. For 'food authority' see s 55, and sub-s(5) supra. For 'the Ministers', see s 4, for 'food business' see s 1(3).

28. Provision of facilities for examinations. (1) A food authority, or a regional council in Scotland, may provide facilities for examinations for the purposes of this Act.

(2) In this Act 'examination' means a microbiological examination and 'examine' shall be construed accordingly.

General. The provisions of this section as to the microbiological examination of food are new. Under former legislation it was not clear whether 'analysis', in its broadest sense, covered microbiological examinations and special provision for it was therefore thought necessary. In most cases the public analyst is able to carry out microbiological examination but the food authority is now authorised to provide such faculties as it thinks fit. Note that the powers of the Minister to prescribe the qualifications of public analysts also extends to the prescription or approval of qualifications for 'food examiners', see s27(2)(a).

Definitions. For 'food authority' see s 5.

Sampling and analysis etc

29. Procurement of samples. An authorised officer of an enforcement authority may— (a) purchase a sample of any food, or any substance capable of being used

in the preparation of food; (b) take a sample of any food, or any such substance, which—

(i) appears to him to be intended for sale, or to have been sold, for human consumption; or

(ii) is found by him on or in any premises which he is authorised to enter by or under section 32 below;

(c) take a sample from any food source, or a sample of any contact material, which is found by him on or in any such premises;

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(d) take a sample of any article or substance which is found by him on or in any such premises and which he has reason to believe may be required as evidence in proceedings under any of the provisions of this Act or of regulations or orders made under it.

General. This section provides powers of sampling for authorised officers of enforcement authorities. It should be read with s 32 (powers of entry), s 30 (analysis and treatment of samples), and any regulations made by the Ministers under s 31 (regulations of sampling and analysis). The powers so provided are similar to those in s 78 of the Food Act 1984 but their effect is much wider because all offences against this Act, with the exception of s 14 (food not of the nature or substance or quality) may be committed at any stage of production or distribution. Under the 1984 Act sampling rarely occurred otherwise than in retail shops because there was no offence, in most instances, unless there had been a sale by retail. Now, it may be expected that sampling will be carried out on manufacturing, processing, importation and wholesale premises.

Definitions. For authorised officer' see s 5(6). For 'enforcement authority' see s 4(1). For 'food', 'food source', contact material' and 'premises' see s 1. For 'article', 'human consumption' and 'substance' see s 53(1).

Authorised Officer. The concept of a 'sampling officer' in the Food Act 1984 has been dropped. It was an unnecessary duplication of terms and served no useful purpose. Any authorised officer exercising powers conferred by this section will of necessity have exercised powers of entry under s 32, and will, if necessary, have proved his authority by the production of a duly authenticated document, see post. However, it has been held that strict proof of authentication is not necessary at a hearing, Ross v Helm [1913] 3 KB 462.

It has also been held that an authorised officer can purchase or take samples by way of an agent or assistant and these precedents would appear to be valid under this Act, see Morder v Scott (1880) 5 QBD 552; Stace v Smith (1880) 45 JP 141; Farely v Higginbotham (1898) 42 Sol Jo 309, DC; and Tyler v Dairy Supply Co Ltd (1908) 72 JP 132. It should be noted that the definition of an 'officer' in s 53(1), includes a servant. It therefore follows that an authorised officer may delegate his duties to another person employed by his authority.

Sample. This term is not defined. It is clear that any article procured by an authorised officer in accordance with this section is a sample but the following points should be borne in mind:

The sample must be dealt with in accordance with procedures to be laid down by regulations. There is no provision in this Act as to the division of samples into parts, the treatment of parts of samples and the documentation relating to samples. These matters will be the subject of regulations to be made under s 31(2). It is imphcit that samples should be fairly obtained and properly dealt with, see s 31(2)(ό) to (e). In Dwerryhouse v United Co-operative Daines Ltd [1962] 1 All ER 936; [1962] 1 WLR 372, DC, the court held that it must be a sample and not bulk which is taken. Thus, for example, what remains after a bottle of milk has been opened and part of its contents consumed is 'bulk' and not a sample. Section 81(4)(6) of the Food Act 1984, which re-enacted the same provisions of former statutes, provided a defence if it was proved that a vessel in which milk was contained and from which the sample was drawn had been opened before the authorised officer had access to it. It was held in this case that a defendant would be deprived of that defence if the remaining contents of the botde were deemed to be a sample. There is no such defence in this Act but, subject to the requirements of the regulations mentioned above, the judgment in this case would appear to accord with natural justice.

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Food handed to an authorised officer by a purchaser is not a sample because it will not have been purchased or taken by an authorised officer in accordance with this section. In Arun District Council v Argyle Stores Ltd (1986), the Times, 16 June the Divisional Court so held on considering the appeal by the prosecutor who claimed that the Justices had erred in law in holding that a piece of cheese, purchased for consumption and found to contain a piece of metal, was a sample when it was handed in to the local authority for analysis. The Justices had dismissed the information holding that the cheese was a sample and the prosecution had not been brought within the two-month time limit laid down in s 108(1 A) of the Food Act 1984. Taylor LJ said that the case was on all fours with Love v Strickland & Holt Ltd (3 February 1981, unreported) and it was clear that the case did not concern a sample procured under the Act and the provisions as to time did not apply.

Time limits under this Act are the same for all offences but the point on which this case turned is still valid in regard to the treatment of a sample, eg its division into parts etc. See also Leach v United Dairies Ltd [1949] 1 All ER 1023.

Test Purchases. It may, on occasion, be necessary for an authorised officer or his agent to obtain a sample by 'test purchase', that is, by buying an item of food as an ordinary purchaser without first announcing his identity to the seller. Subject to regulations which may be made under s 31, on this point, it is submitted that an authorised officer is not acting unfairly nor as an agent provocateur by so doing. In Kinsella v Marshall (1988, unreported) a police officer had made a test purchase of intoxicating liquor from premises in respect of which there was no licence with a view to adducing evidence for a prosecution. He did not announce his office to the person from whom he made the purchase. Held, that the evidence was not to be excluded and held inadmissible under s 78 of the Police and Criminal Evidence Act 1984.

Purchase/Take. It is for the authorised officer to decide whether he should exercise his powers under para (a) and purchase the sample or (b), (e) and (d) and take the sample. Take ' means to obtain without payment but an authorised officer may reimburse the owner with its value; see Southwell v Ross [1945] 2 AU ER 590. Schedule 7 to the Food Act 1984, which laid down the manner in which samples purchased or taken should be dealt with, contained different provisions as to the treatment of parts of the sample when the sample had been purchased. In Marston v Wrington Vale Dairies Ltd (1963) 61 LGR 202, it was held, in relation to that schedule, that taking did not include purchase but the relevance of this judgment will depend on regulations to be made under s 31.

Appears/Reason to believe. There are numerous authorities for saying that Ministers, acting in good faith in relation to their powers, are the sole judges of necessity or expendiency in the interests of public health or the protection of consumers; see Robinson v Sunderland Corpn [1899] 1 QB 751; R v Comptroller General of Patents, ex p Bayer Products Ltd [1941] 2 KB 306, [1941] 2 AU ER 677, CA; Point of Ayr Collieries Ltd v Lloyd George [1943] 2 AU ER 546, CA; Re City of Plymouth (City Centre) Dechratory Order, (1946); Robinson v Minister of Town and Country Planning [1947] KB 702, [1957] 1 AU ER 851; Smith v East Albe RDC [1956] AC 736, [1956] 1 All ER 855, HL; Ross-Clunis v Papadopoullos [1958] 2 All ER 23, [1958] 1 WLR 546 PC; and Customs and Excise Comrs v Cure and Delley Ltd [1962] 1 QB 340, [1961] 3 All ER 641. These cases may be relevant in the terms of sub-s (b)(ï), where an authorised officer sees food in circumstances where it appears, in the absence of any indications to the contrary, that food is intended for sale.

As to 'reasons to believe', it is submitted that the term requires not only that the person in question has reason to believe, but that he did actually believe; see R v Banks [1916] 2 KB 621; and R v Harrison [1938] 3 All ER 134; Nakkuda Ali v

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Jayaratne [1951] AC 66 PC; and Readers Digest Association v Pitie (1973) SLT 170. Required as evidence. The power to take a sample of an article or substance which may be required as evidence in sub-s (d) is new. It should be considered in conjunction with s 33 (obstruction of officers).

30. Analysis etc of samples. (1) An authorised officer of an enforcement authority who has procured a sample under section 29 above shall— (a) if he considers that the sample should be analysed, submit it to be

analysed either— (i) by the public analyst for the area in which the sample was pro

cured; or (ii) by the public analyst for the area which consists of or includes the

area of the authority; (b) if he considers that the sample should be examined, submit it to be

examined by a food examiner.

(2) A person, other than such an officer, who has purchased any food, or any substance capable of being used in the preparation of food, may submit a sample of it— (a) to be analysed by the public analyst for the area in which the purchase

was made; or (b) to be examined by a food examiner.

(3) If, in any case where a sample is proposed to be submitted for analysis under this section, the office of public analyst for the area in question is vacant, the sample shall be submitted to the public analyst for some other area.

(4) If, in any case where a sample is proposed to be or is submitted for analysis or examination under this section, the food analyst or examiner determines that he is for any reason unable to perform the analysis or examination, the sample shall be submitted or, as the case may be, sent by him to such other food analyst or examiner as he may determine.

(5) A food analyst or examiner shall analyse or examine as soon as practicable any sample submitted or sent to him under this section, but may, except where— (a) he is the public analyst for the area in question; and (b) the sample is submitted to him for analysis by an authorised officer of

an enforcement authority, demand in advance the payment of such reasonable fees as he may require.

(6) A food analyst or examiner who has analysed or examined a sample shall give to the person by whom it was submitted a certificate specifying the result of the analysis or examination.

(7) Any certificate given by a food analyst or examiner under subsection (6) above shall be signed by him, but the analysis or examination may be made by any person acting under his direction.

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Part HI: Administration and Enforcement

(8) In any proceedings under this Act, the production by one of the parties— (a) of a document purporting to be a certificate given by a food analyst or

examiner under subsection (6) above; or (b) of a document supplied to him by the other party as being a copy of

such a certificate, shall be sufficient evidence of the facts stated in it unless, in a case falling within paragraph (a) above, the other party requires that the food analyst or examiner shall be called as a witness.

(9) In this section— 'food analyst' means a public analyst or any other person who possesses

the requisite qualifications to carry out analyses for the purposes of this Act;

'food examiner' means any person who possesses the requisite qualifications to carry out examinations for the purposes of this Act;

'the requisite qualifications' means such qualifications as may be prescribed by regulations made by the Ministers, or such other qualifications as the Ministers may approve;

'sample', in relation to an authorised officer of an enforcement authority, includes any part of a sample retained by him in pursuance of regulations under section 31 below;

and where two or more public analysts are appointed for any area, any reference in this section to the public analyst for that area shall be construed as a reference to either or any of them.

General. This section provides for the submission of samples and other items for analysis. It is derived with little change from s 79 of the Food Act 1984 but introduces the concept of a 'food analyst'. An authorised officer has a discretion as to whether a sample should be submitted for analysis or examination. Where he considers that it should be so submitted it must be submitted to a public analyst or a food examiner. A person other than an authorised officer who has purchased any food etc may submit it for analysis to a public analyst or a food examiner in accordance with sub-s(2).

Where, under sub-s (4) a public analyst determines that he is unable to carry out an analysis the sample must be submitted to another food analyst who, by virtue of the definition in sub-s (8), need not be a public analyst but must hold the requisite qualifications. Such qualifications may be prescribed by regulations—see sub-s (8). Note also that regulations may prescribe the circumstances in which samples may be submitted to the government chemist or other food analysts—see s 31. Definitions. For 'food analyst', 'food examiner', 'the requisite qualifications' and 'sample' see sub-s (8) supra. For 'authorised officer' see s 5(6). For 'enforcement authority' see s 6(1). For 'analysis' and 'substance', see s 53(1). Submit it to be analysed. This section does not require analysis. It is contemplated that satisfactory proof of the nature or composition of a sample may well be given in some other way perhaps by expert evidence. It has been the case that where a defendant has admitted an offence a sample has not been submitted for analysis. This is unwise because the seriousness of the case may require the expert evidence of a public analyst.

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Note that analysis is defined in s 53(1) as including microbiological assay and any technique for establishing the composition of food.

Certificate of analysis or examination. The certificate should be in the prescribed form. That form is currently prescribed by the Public Analysis Regulations 1957. No doubt new regulations to be made under s 31 will prescribe a form of certificate to include analysis and examination. There is no requirement in this Act, as there was in s 95(5)(ò) of the Food Act 1984, for a copy of a certificate of analysis to be served on a defendant with the summons. This was considered to be unnecessary because of the requirements of the Magistrates' Courts Act 1980 and the Magistrates' Courts Rules 1981 (SI 1981 No 552) as amended as to a specific statement of offence in informations.

Evidence of analysis. A document produced by either party to proceedings which purports to be a certificate of analysis given by a public analyst or a food analyst or a food examiner is, by virtue of sub-s (7), sufficient evidence of the facts stated in it unless the other party requires that the food analyst or food examiner be called as a witness. Such a requirement should be given in writing in accordance with s 59.

Person acting under the direction of the food analyst or examiner. These words are declaratory of the judgment in Bakewell v Davis [1894] 1 QB 296.

31. Regulation of sampling and analysis etc. (1) The Ministers may by regulations make provision for supplementing or modifying the provisions of sections 29 and 30 above.

(2) Without prejudice to the generality of subsection (1) above, regulations under that subsection may make provision with respect to— (a) the matters to be taken into account in determining whether, and at

what time, samples should be procured; (b) the manner of procuring samples, including the steps to be taken in

order to ensure that any samples procured are fair samples; (c) the method of dealing with samples, including (where appropriate)

their division into parts; (d) the persons to whom parts of samples are to be given and the persons

by whom such parts are to be retained; (e) the notices which are to be given to, and the information which is to be

furnished by, the persons in charge of any food, substance, contact material or food source of or from which samples are procured;

( / ) the methods which are to be used in analysing or examining samples, or parts of samples, or in classifying the results of analyses or examinations;

(g) the circumstances in which a food analyst or examiner is to be precluded, by reason of a conflict of interest, from analysing or examining a particular sample or part of a sample; and

(A) the circumstances in which samples, or parts of samples, are to be or may be submitted for analysis or examination— (i) to the Government Chemist, or to such other food analyst or exam

iner as he may direct; or (ii) to a person determined by or under the regulations.

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(3) In this section 'food analyst' and 'food examiner' have the same meanings as in section 30 above.

General. This section confers wide powers on the Ministers to make regulations as to sampling and analysis. Together with the powers as to forms in s 54, such regulations will replace the provisions of s 84 of and Schedule 7 to the Food Act 1984.

Definitions. For 'the Ministers' see s 4. For 'analysis' see s 53(1). For 'examination' see s 28(2). For 'food analyst' and 'food examiner' see s 30.

Powers of entry and obstruction etc

32. Powers of entry. (1) An authorised officer of an enforcement authority shall, on producing, if so required, some duly authenticated document showing his authority, have a right at all reasonable hours— (a) to enter any premises within the authority's area for the purpose of

ascertaining whether there is or has been on the premises any contravention of the provisions of this Act, or of regulations or orders made under it; and

(b) to enter any business premises, whether within or outside the authority's area, for the purpose of ascertaining whether there is on the premises any evidence of any contravention within that area of any of such provisions; and

(c) in the case of an authorised officer of a food authority, to enter any premises for the purpose of the performance by the authority of their functions under this Act;

but admission to any premises used only as a private dwelling-house shall not be demanded as of right unless 24 hours' notice of the intended entry has been given to the occupier.

(2) If a justice of the peace, on sworn information in writing, is satisfied that there is reasonable ground for entry into any premises for any such purpose as is mentioned in subsection (1) above and either— (a) that admission to the premises has been refused, or a refusal is appre

hended, and that notice of the intention to apply for a warrant has been given to the occupier; or

(b) that an application for admission, or the giving of such a notice, would defeat the object of the entry, or that the case is one of urgency, or that the premises are unoccupied or the occupier temporarily absent,

the justice may by warrant signed by him authorise the authorised officer to enter the premises, if need be by reasonable force.

(3) Every warrant granted under this section shall continue in force for a period of one month.

(4) An authorised officer entering any premises by virtue of this section, or

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of a warrant issued under it, may take with him such other persons as he considers necessary, and on leaving any unoccupied premises which he has entered by virtue of such a warrant shall leave them as effectively secured against unauthorised entry as he found them.

(5) An authorised officer entering premises by virtue of this section, or of a warrant issued under it, may inspect any records (in whatever form they are held) relating to a food business and, where any such records are kept by means of a computer— (a) may have access to, and inspect and check the operation of, any com

puter and any associated apparatus or material which is or has been in use in connection with the records; and

(6) may require any person having charge of, or otherwise concerned with the operation of, the computer, apparatus or material to afford him such assistance as he may reasonably require.

(6) Any officer exercising any power conferred by subsection (5) above may— (a) seize and detain any records which he has reason to believe may be

required as evidence in proceedings under any of the provisions of this Act or of regulations or orders made under it; and

(b) where the records are kept by means of a computer, may require the records to be produced in a form in which they may be taken away.

(7) If any person who enters any premises by virtue of this section, or of a warrant issued under it, discloses to any person any information obtained by him in the premises with regard to any trade secret, he shall, unless the disclosure was made in the performance of his duty, be guilty of an offence.

(8) Nothing in this section authorises any person, except with the permission of the local authority under the Animal Health Act 1981, to enter any premises— (a) in which an animal or bird affected with any disease to which that Act

applies is kept; and (b) which is situated in a place declared under that Act to be infected with

such a disease.

(9) In the application of this section to Scotland, any reference to a justice of the peace includes a reference to the sheriff and to a magistrate.

General. The powers of entry conferred on authorised officers of enforcement authorities and food authorities by this section are based on those in s 87 of the Food Act 1984 but there are important differences. They are: (a) A new power is given to officers of enforcement authorities to enter any

business premises within or outside the area of the officer's employing authority (sub-s(lXÒ));

(b) The power for officers of enforcement authorities to enter premises within the authority's area extends to business and domestic premises, subject to the restrictions as to private dwelling houses, but that as to premises outside the

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authority's area applies only to business premises (sub-ss(l)(a) and (£)); (c) Authorised officers of food authorities may enter premises of any kind for the

purpose of the performance of their duties under the Act. There being no reference to this power extending to premises outside the food authority's area it must be assumed that this power is limited to premises within its area (sub-s(l)(c));

(d) The power to inspect records, computers etc under sub-s (5) is new. For a discussion of the differences between a food authority and an enforcement authority see note to s 6.

The new powers of entry conferred by this section implement in part the Directive on the Official Control of Foodstuffs (89/397/EEC). The more detailed provisions of that Directive may be implemented by regulations made under s 17. Definitions. For 'authorised officer' see s 5. For 'enforcement authority' see s 6. For 'food authority' see s 5. For 'premises', 'business' and 'food business' see s 1(3). For 'contravention', 'occupier' and 'officer' see s 53(1). Duly authenticated document. The document should be authenticated in accordance with s 49. There is no prescribed form but it is submitted that the document should indicate the extent of the officer's authority derived from the duties of the enforcement authority under the Act. On producing if so required. This does not mean that the right of entry can only be exercised if there is someone present to whom the document can be produced, see Grove v Eastern Gas Board [1952] 1 KB 77, [1951] 2 All ER 1051, CA.

33. Obstruction etc of officers. (1) Any person who— (a) intentionally obstructs any person acting in the execution of this Act; or (b) without reasonable cause, fails to give to any person acting in the

execution of this Act any assistance or information which that person may reasonably require of him for the performance of his functions under this Act,

shall be guilty of an offence.

(2) Any person who, in purported compliance with any such requirement as is mentioned in subsection (l)(i) above— (a) furnishes information which he knows to be false or misleading in a

material particular; or (b) recklessly furnishes information which is false or misleading in a

material particular, shall be guilty of an offence.

(3) Nothing in subsection (l)(i>) above shall be construed as requiring any person to answer any question or give any information if to do so might incriminate him.

General. The provisions as to obstruction in this section are now in the near standard form for trading legislation. Section 91(2) of the Food Act 1984, which made it an offence for a person to refuse to sell food to an authorised officer or to allow him to take food for sampling purposes, has not been re-enacted. This was thought unnecessary because officers have the power to purchase or take samples under s 29, and it follows that any refusal to allow them to exercise that power would be obstruction under sub-s (1) of this section.

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Intentionally. The word 'intentionally' has been substituted for the more usual 'wilfully' in provisions of this kind. It is submitted that in this context they are synonynous, meaning deliberately as distinct from accidentally or inadvertently; see R v Senior [1899] 1 QB 283, [1959] All ER Rep 511; R v Walker (1934) 2 Cr App Rep 117; Eaton v Cobb [1950] 1 All ER 210.

Obstruct. Obstruction need not involve physical violence: see Bonow v Howland (1896) 74 LT 787; Betts v Stevens [1910] 1 KB 1; Hinchliffe v Sheldon [1955] 3 All ER 406, [1955] 1 WLR 1207. In fact there is authority for saying that anything which makes it more difficult for a person to perform his duty amounts to an obstruction, see Hinchliffe v Sheldon (above). Yet standing by and doing nothing is not obstruction unless there is a legal duty to act, see Swallow v LCC [1916] 1 KB 224, [1914-15] All ER Rep 403, and contrast Baker v Ellison [1914] 2 KB 762. In Rice v Connolly [1966] 2 QB 414, [1966] 2 All ER 649 it was held that 'obstructs' in s 51(3) of the Police Act 1964 meant the doing of any act which made it more difficult for the police to carry out their duty and 'wilful' meant not only intentional but without lawful excuse. While every citizen had a moral or social duty to assist the police there was no such legal duty and the defendant in refusing to answer the police constable's questions (as opposed to telling a lie) or to accompany him to the police station unless arrested was within his rights at common law. Therefore, although the defendant had caused an obstruction by making it more difficult for the police constable to carry out his duty he had not acted wilfully against him notwithstanding that the latter was acting in the execution of his duty.

Contrast Willmott v Atack [1977] QB 498, [1976] 3 All ER 794 where the defendant intervened and obstructed a police officer whilst the officer was attempting to restrain a man under arrest and take him to a police car in the belief that he could resolve the situation better than the police. It was held, allowing the appeal against his conviction for wilful obstruction contrary to the Police Act 1964 s 51(3), that the section referred to an intention that the deliberate act of obstruction would in fact obstruct the police officer and that since the defendant had not acted with hostility towards the police officer and had not intended to obstruct him, the defendant was not guilty; Rice v Connolly (see above) applied [1966] 2 QB 414, [1966] 2 All ER 649.

But a defendant is not entitled to be acquitted solely because the obstruction occurred while he was asserting a private right: R v Pollard (1866) 14 LT 599. In Dibble v Ingleton [1972] 1 QB 480, [1972] 1 All ER 275, while a police constable was waiting the regulation 20 minutes before administering the breath test to a car driver, the defendant asked to go to the lavatory but on the way he snatched a bottle of whisky from a third party and drank it. It was held by the Divisional Court (Lord Widgery CJ, Ashworth and Bridge JJ) that to constitute wilful obstruction under s 51(3) of the Police Act 1964 an act must be a positive one and not a mere refusal to act, and that the defendant in drinking the whisky with the object and effect of frustrating the constable from following the procedure under the Road Safety Act 1967, ss 2 and 3, acted positively and in those circumstances 'wilful obstruction' was established. Rice v Connolly [1966] 2 QB 414, [1966] 2 All ER 649 applied.

In Hewson v Gamble (1892) 56 JP 534 the action of the seller in snatching back an article which he had already sold and offering to repay the buyer's money was held not to be evidence of felonious intent but the action would constitute a wilful obstruction under the present provisions.

In Macmillan v Lakie 1960 SLT (Sh Ct) 2, a barman in a private club refused to supply whisky to a sampling officer acting under a similar provision in the Food and Drugs (Scotland) Act 1956, on the ground that he was not entitled to supply drinks to persons who were not members or visitors, was held guilty of obstruction.

In Barge v British Gas Corpn (1983) 81 LGR 53, DC proceedings were brought under s 29(1) of the Trade Descriptions Act 1968 which contains similar provisions

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as to the obstruction of authorised officers. A trading standards officer visited the premises of the defendants to investigate a complaint and there asked for a copy to be made for him of a document. The staff refused to make a copy, although they did not attempt to prevent the officer from making a copy himself nor from taking possession of it. It was alleged that there was a failure to comply with a requirement properly made by a duly authorised officer in that the staff had failed to hand over a document which the officer had reason to believe might be required as evidence. The defendants were convicted. Held, allowing their appeal, that an offence under s 29(1 )(b) was committed only where there was a wilful failure to comply with a requirement properly made by an authorised officer under s 28 of the Act. That section, properly construed, did not entitle an officer to require a person to hand over documents, and since, in this case, the only requirement made was to produce documents, that requirement had been complied with and no offence had been committed.

Acting in the execution of this Act. The person in question must in fact act in the execution of the Act and it is not sufficient that he purports so to act; cf especially Davies v Lisle [1936] 2 KB 434, [1936] 2 All ER 213. Might incriminate him. Sub-s (3), which appears in similar terms in most trading law statutes, should be considered anew in the light of the powers conferred on authorised officers by s 32 (power to inspect records), and the detailed provisions of the Directive on the Official Control of Foodstuffs (89/397/EEC) which provide, inter aha, for the questioning of management and staff, the examination of measuring and recording instruments and the like. In the absence of any judicial precedent on this matter it is submitted that this sub-section overrides any conflicting power of enforcement.

Offences

34. Time limit for prosecutions. No prosecution for an offence under this Act which is punishable under section 35(2) below shall be begun after the expiry of— (a) three years from the commission of the offence; or (b) one year from its discovery by the prosecutor, whichever is the earlier.

General. The time limits on prosecutions imposed by this section correspond to those in the Trade Descriptions Act 1968 and other trading law statutes. The special limits of 28 days and 2 months for proceedings arising from samples in s 95(2) of the Food Act 1984 have been abolished. The commencement of proceedings is the date from which the information is laid and not the date when the summons is served; Beardsley v Giddings [1904] 1 KB 847.

35. Punishment of offences. (1) A person guilty of an offence under section 33(1) above shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale or to imprisonment for a term not exceeding three months or to both.

(2) A person guilty of any other offence under this Act shall be liable— (a) on conviction on indictment, to a fine or to imprisonment for a term

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not exceeding two years or to both; (b) on summary conviction, to a fine not exceeding the relevant amount or

to imprisonment for a term not exceeding six months or to both.

(3) In subsection (2) above 'the relevant amount' means— (a) in the case of an offence under section 7, 8 or 14 above, £20,000; (b) in any other case, the statutory maximum.

(4) If a person who is— (a) licensed under section 1 of the Slaughterhouses Act 1974 to keep a

slaughterhouse or knacker's yard; (ft) registered under section 4 of the Slaughter of Animals (Scotland) Act

1980 in respect of any premises for use as a slaughterhouse; or (c) licensed under section 6 of that Act to use any premises as a knacker's

yard, is convicted of an offence under Part II of this act, the court may, in addition to any other punishment, cancel his licence or registration.

General. With the exception of the offence of obstruction under s 33, all offences against this Act are triable either way. Maximum penalties on summary conviction for offences against s 7 (rendering food injurious to health), s 8 (selling food not complying with the food safety requirements), and s 14 (food not of the nature or substance or quality demanded), have been increased from £2,000 for the equivalent offences against the Food Act 1984 to £20,000. Maximum penalties on summary conviction for all other offences remain on the statutory maximum, ie £2,000. Offences against regulations made under or continued in force by this Act are triable in such manner and subject to such maximum penalties as the regulations may prescribe; see s 26(3).

36. Offences by bodies corporate. (1) Where an offence under this Act which has been committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of— (a) any director, manager, secretary or other similar officer of the body

corporate; or (b) any person who was purporting to act in any such capacity, he as well as the body corporate shall be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

(2) In subsection (1) above 'director', in relation to any body corporate established by or under an enactment for the purpose of carrying on under national ownership any industry or part of an industry or undertaking, being a body corporate whose affairs are managed by its members, means a member of that body corporate.

General. There is no change in the law as to the liability of officers of corporations. This section should be read with s 21 (defence of all reasonable precautions and all due diligence), s 20 (offences arising from the act or default of another person), and s 11 (prohibition orders against food business proprietors and managers).

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Appeals

37. Appeals to magistrates' court or sheriff. (1) Any person who is aggrieved by— (a) a decision of an authorised officer of an enforcement authority to serve

an improvement notice; (b) a decision of an enforcement authority to refuse to issue such a certifi

cate as is mentioned in section 11(6) or 12(8) above; or (c) subject to subsection (2) below, a decision of such an authority to

refuse, cancel, suspend or revoke a licence required by regulations under Part II of this Act,

may appeal to a magistrates' court or, in Scotland, to the sheriff.

(2) Subsection (l)(c) above shall not apply in relation to any decision as respects which regulations under Part II of this Act provide for an appeal to a tribunal consituted in accordance with the regulations.

(3) The procedure on an appeal to a magistrates' court under subsection (1) above, or an appeal to such a court for which provision is made by regulations under Part II of this Act, shall be by way of complaint for an order, and the Magistrates' Courts Act 1980 shall apply to the proceedings.

(4) An appeal to the sheriff under subsection (1) above, or an appeal to the sheriff for which provision is made by regulations under Part II of this Act, shall be by summary application.

(5) The period within which such an appeal as is mentioned in subsection (3) or (4) above may be brought shall be— (a) one month from the date on which notice of the decision was served on

the person desiring to appeal; or (b) in the case of an appeal under subsection (l)(a) above, that period or

the period specified in the improvement notice, whichever ends the earlier;

and, in the case of such an appeal as is mentioned in subsection (3) above, the making of the complaint shall be deemed for the purposes of this subsection to be the bringing of the appeal.

(6) In any case where such an appeal as is mentioned in subsection (3) or (4) above lies, the document notifying the decision to the person concerned shall state— (a) the right of appeal to a magistrates' court or to the sheriff; and (b) the period within which such an appeal may be brought.

General. Where a code of practice has been issued by the Ministers under s 40, the terms of such a code, if any, on the matters contemplated for appeal should be taken into account.

Note the time limits on appeals in sub-s (5). In urgent matters, such as the

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unreasonable issue of an improvement notice, the appeal may have to be on the day after such issue. Note also the provisions of s 39, as to appeals against improvement notices.

38. Appeals to Crown Court. A person who is aggrieved by— (a) any dismissal by a magistrates' court of such an appeal as is mentioned

in section 37(3) above; or (b) any decision of such a court to make a prohibition order or an emerg

ency prohibition order, or to exercise the power conferred by section 35(4) above,

may appeal to the Crown Court.

General. This section should be read with s 11 (improvement notices), and s 37 (appeals to a magistrates' court or to the Sheriff).

39. Appeals against improvement notices. (1) On an appeal against an improvement notice, the court may either cancel or affirm the notice and, if it affirms it, may do so either in its original form or with such modifications as the court may in the circumstances think fit.

(2) Where, apart from this subsection, any period specified in an improvement notice would include any day on which an appeal against that notice is pending, that day shall be excluded from that period.

(3) An appeal shall be regarded as pending for the purposes of subsection (2) above until it is finally disposed of, is withdrawn or is struck out for want of prosecution.

Part IV Miscellaneous and Supplemental Introduction. This part of the Act provides for enabling powers for Ministers in relation to enforcement by local authorities; protective provisions for registrants, licensees and authorised officers; financial provisions as to charges, expenses and remuneration of tribunal chairmen; instruments and documents; amendment of other statutes; interpretation; Crown liability; and miscellaneous matters. Section 40 introduces new powers for Ministers to issue codes of practice on the execution and enforcement of the Act. Such codes will have limited statutory authority but will be binding on food authorities and, if not observed, may be reinforced by directions. The Ministers are obliged to consult with representative interests before issuing a code. Section 41 empowers the Minister to require food authorities to submit to him reports and returns on the exercise of their functions under the Act. Section 42 provides for default powers for Ministers where a food authority fails to discharge duties imposed on them by the Act or regulations made thereunder. These powers are wider than those in the Food Act 1984 and, when read with the code making powers in s 40 and the power to take over the conduct of proceedings in s 6(5), indicate the government's determination that the Act shall be vigorously

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unreasonable issue of an improvement notice, the appeal may have to be on the day after such issue. Note also the provisions of s 39, as to appeals against improvement notices.

38. Appeals to Crown Court. A person who is aggrieved by— (a) any dismissal by a magistrates' court of such an appeal as is mentioned

in section 37(3) above; or (b) any decision of such a court to make a prohibition order or an emerg

ency prohibition order, or to exercise the power conferred by section 35(4) above,

may appeal to the Crown Court.

General. This section should be read with s 11 (improvement notices), and s 37 (appeals to a magistrates' court or to the Sheriff).

39. Appeals against improvement notices. (1) On an appeal against an improvement notice, the court may either cancel or affirm the notice and, if it affirms it, may do so either in its original form or with such modifications as the court may in the circumstances think fit.

(2) Where, apart from this subsection, any period specified in an improvement notice would include any day on which an appeal against that notice is pending, that day shall be excluded from that period.

(3) An appeal shall be regarded as pending for the purposes of subsection (2) above until it is finally disposed of, is withdrawn or is struck out for want of prosecution.

Part IV Miscellaneous and Supplemental Introduction. This part of the Act provides for enabling powers for Ministers in relation to enforcement by local authorities; protective provisions for registrants, licensees and authorised officers; financial provisions as to charges, expenses and remuneration of tribunal chairmen; instruments and documents; amendment of other statutes; interpretation; Crown liability; and miscellaneous matters. Section 40 introduces new powers for Ministers to issue codes of practice on the execution and enforcement of the Act. Such codes will have limited statutory authority but will be binding on food authorities and, if not observed, may be reinforced by directions. The Ministers are obliged to consult with representative interests before issuing a code. Section 41 empowers the Minister to require food authorities to submit to him reports and returns on the exercise of their functions under the Act. Section 42 provides for default powers for Ministers where a food authority fails to discharge duties imposed on them by the Act or regulations made thereunder. These powers are wider than those in the Food Act 1984 and, when read with the code making powers in s 40 and the power to take over the conduct of proceedings in s 6(5), indicate the government's determination that the Act shall be vigorously

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Part IV: Miscellaneous and Supplemental

enforced.

Section 43 provides the registrations and licences issued under the Act shall remain in force for limited periods for the benefit of the registrant's or licensee's dependants.

Section 44 re-enacts the provisions of the Food Act 1984 as to the protection of officers of food authorities acting in good faith.

Section 45 empowers the Ministers to make regulations requiring or authorising charges to be made by enforcement authorities in respect of things required or authorised under the Act.

Section 46 provides for the recovery of expenses incurred by authorised officers from food authorities and for expenses incurred by County Councils to be defrayed as expenses for special county purposes.

Section 47 provides for the remuneration of the chairmen of any tribunals which may be established under regulations.

Section 48 extends the regulation and order making powers of the Ministers to the application of other enactments to such regulations or orders; to different provisions for different cases; to the provision of exceptions, limitations and conditions; and to consequential and transitional provisions. The usual requirements as to consultation are imposed.

Section 49 contains important new provisions as to the authentication and issue of documents required under the Act and the prescription of the form of such documents by the Ministers.

Section 50 lays down the methods by which documents required or authorised by the Act must be served.

Section 51 provides for the amendment of the Food and Environment Protection Act 1985 to bring the requirements of that Act as to emergency orders into line with this Act.

Section 52 provides the amendments to those Parts of the Food Act 1984 which are not repealed by this Act.

Section 53 is the general interpretation section which should be read with the interpretations contained in ss 1(1), (2), 4(1), 5(5) and (6), 6(1), 7(3), 19(3), 31(8), 32(3), and 50(5). Section 54 provides that the Crown is bound by the Act and regulations or orders made thereunder. This is an important change in trading legislation and it should be noted that although the Crown is not criminally liable for any breach of the Act etc an enforcement authority may apply to the High Court or the Court of Session in Scotland for a declaration that the act or omission of the Crown is unlawful. Servants of the Crown are liable to prosecution.

Section 55 exempts water supplies which are subject to the Water Act 1989 from the provisions of this Act and makes the necessary amendments to the 1989 Act. Section 56 makes similar provisions as s 56 in respect of water supplies in Scotland.

Section 57 applies the Act to the Isles of Scilly subject to any exceptions or modifications as the Minister may direct. Her Majesty may, by Order in Council, direct that any provisions of the Act shall extend to the Channel Islands subject to such exceptions and modifications as may be specified.

Section 58 applies the Act to territorial waters and installations in non-territorial waters.

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Section 59 provides for amendments to other enactments, repeals, transitional arrangements and savings. Section 60 provides for the short tide, commencement and extent of the Act.

Powers of Ministers

40 Power to issue codes of practice. (1) For the guidance of food authorities, the Ministers or the Minister may issue codes of recommended practice as regards the execution and enforcement of this Act and of regulations and orders made under it; and any such code shall be laid before Parliament after being issued.

(2) In the exercise of the functions conferred on them by or under this Act, every food authority— (a) shall have regard to any relevant provision of any such code; and (b) shall comply with any direction which is given by the Ministers or the

Minister and requires them to take any specified steps in order to comply with such a code.

(3) Any direction under subsection (2)(b) above shall, on the application of the Ministers or the Minister, be enforceable by mandamus or, in Scotland, by an order of the Court of Session under section 45 of the Court of Session Act 1988.

(4) Before issuing any code under this section, the Ministers or the Minister shall consult with such organisations as appear to them or him to be representative of interests likely to be substantially affected by the code.

(5) Any consultation undertaken before the commencement of subsection (4) above shall be as effective, for the purposes ofthat subsection, as if undertaken after that commencement.

General. The provisions of this section as to codes of practice on the execution and enforcement of the Act are entirely new to food law. The section is an attempt to achieve uniformity and fairness of administration given that the Ministers have no other statutory control over food authorities. The matters which may be the subject of code provisions are wide and include the methods and practice of enforcement, the resources apphed to the execution of the Act and the decision to prosecute in any particular case or generally. Food authorities are obliged to have regard to such codes of practice and the Ministers may issue directions requiring a food authority to comply with a code which are enforceable. Note also the powers of the Ministers with respect to the default of a food authority in s 42. Definitions. For 'food authorities' see s 5. For 'the Ministers' see s4.

41. Power to require returns. Every food authority shall send to the Minister such reports and returns, and give him such information, with respect to the exercise of the functions conferred on them by or under this Act as he may require.

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General. This section reverses the repeal of the report making requirements in s 99(2) of the Food and Drugs Act 1955 by the Local Government, Planning and Land Act 1980. It is now intended that comprehensive returns may be required from food authorities in order that the Ministers may keep the effective enforcement of this Act under review. For default powers, see s 42.

Definitions. For 'food authority' see s 5. For 'the Minister' see s4.

42. Default powers. (1) Where the Minister is satisfied that— (a) a food authority (in this section referred to as 'the authority in default')

have failed to discharge any duty imposed by or under this Act; and (b) the authority's failure affects the general interests of consumers of food, he may by order empower another food authority (in this section referred to as 'the substitute authority'), or one of his officers, to discharge that duty in place of the authority in default.

(2) For the purpose of determining whether the power conferred by subsection (1) above is exercisable, the Minister may cause a local inquiry to be held; and where he does so, the relevant provisions of the Local Government Act shall apply as if the inquiry were a local inquiry held under that Act.

(3) Nothing in subsection (1) above affects any other power exercisable by the Minister with respect to defaults of local authorities.

(4) The substitute authority or the Minister may recover from the authority in default any expenses reasonably incurred by them or him under subsection (1) above; and for the purpose of paying any such amount the authority in default may— (a) raise money as if the expenses had been incurred directly by them as a

local authority; and (b) if and to the extent that they are authorised to do so by the Minister,

borrow money in accordance with the statutory provisions relating to borrowing by a local authority.

(5) In this section 'the relevant provisions of the Local Government Act' means subsections (2) to (5) of section 250 of the Local Government Act 1972 in relation to England and Wales and subsections (3) to (8) of section 210 of the Local Government (Scotland) Act 1973 in relation to Scotland.

General. The default powers of the Minister provided by this section differ from those of the Food Act 1984 and its predecessors in that power to institute a local inquiry before the Minister can make an order directing the authority as necessary to remove the default is now at the Minister's discretion. In addition to the remedial powers conferred on the Minister by this section regard should be had to the powers to issue directives as to the observance of codes of practice in s 40(2) and (3), and the power to take over the conduct of proceedings in s 6(5).

Definitions. For 'the Minister' see s4. For 'food authority' see s 5. For 'food' see s 1(1).

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Protective provisions

43. Continuance of registration or licence on death. (1) This section shall have effect on the death of any person who— (a) is registered in respect of any premises in accordance with regulations

made under Part II of this Act; or (b) holds a licence issued in accordance with regulations so made.

(2) The registration or licence shall subsist for the benefit of the deceased's personal representative, or his widow or any other member of his family, until the end of— (a) the period of three months beginning with his death; or (b) such longer period as the enforcement authority may allow.

General. This section provides for the continuation of registration or licensing of a food business after the death of the person so registered or licensed under regulations made under s 19.

44. Protection of officers acting in good faith. (1) An officer of a food authority is not personally liable in respect of any act done by him— (a) in the execution or purported execution of this Act; and (b) within the scope of his employment, if he did that act in the honest belief that his duty under this Act required or entitled him to do it.

(2) Nothing in subsection (1) above shall be construed as relieving any food authority from any liability in respect of the acts of their officers.

(3) Where an action has been brought against an officer of a food authority in respect of an act done by him— (a) in the execution or purported execution of this Act; but (b) outside the scope of his employment, the authority may indemnify him against the whole or part of any damages which he has been ordered to pay or any costs which he may have incurred if they are satisfied that he honestly believed that the act complained of was within the scope of his employment.

(4) A public anaylst appointed by a food authority shall be treated for the purposes of this section as being an officer of the authority, whether or not his appointment is a whole-time appointment.

General. This section repeats the substance of s 116 of the Food Act 1984. There is no change in the law relating to the liability of food authorities and their officers.

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Financial provisions

45. Regulations as to charges. (1) The Ministers may make regulations requiring or authorising charges to be imposed by enforcement authorities in respect of things done by them which they are required or authorised to do by or under this Act.

(2) Regulations under this section may include such provisions as the Ministers see fit as regards charges for which the regulations provide and the recovery of such charges; and nothing in the following provisions shall prejudice this.

(3) Regulations under this section may provide that the amount of a charge (if imposed) is to be at the enforcement authority's discretion or to be at its discretion subject to a maximum or a minimum.

(4) Regulations under this section providing that a charge may not exceed a maximum amount, or be less than a minimum amount, may— (a) provide for one amount, or a scale of amounts to cover different pre

scribed cases; and (b) prescribed, as regards any amount, a sum or a method of calculating

the amount.

General. The power conferred on the Ministers by this section to provide for charges to be imposed by enforcement authorities for things done by them which are required or authorised to be done by this Act are new. Definitions. For 'the Ministers' see s 4. For 'enforcement authorities, see s 6(1).

46. Expenses of authorised officers and county councils. (1) Any expenses which are incurred under this Act by an authorised officer of a food authority in procuring samples, and causing samples to be analysed or examined, shall be defrayed by that authority.

(2) Any expenses incurred by a county council in the enforcement and execution of any provision of this Act, or of any regulations or orders made under it, shall, if the Secretary of State so directs, be defrayed as expenses for special county purposes charged on such part of the county as may be specified in the direction.

General. This section re-enacts, in modified form, the provisions of the Food Act 1984 as to the reimbursement of authorised officers' expenses and the defrayment of County Council expenses. Definitions. For 'authorised officer' see s 5(6). For 'food authority' see s 5.

47. Remuneration of tribunal chairman. There shall be paid out of money provided by Parliament to the chairman of any tribunal constituted in accordance with regulations under this Act such remuneration (by way of salary or fees) and such allowances as the Ministers may with the approval of the Treasury determine.

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General. Ministers are empowered by s 27(2), to establish tribunals to hear appeals against the decisions of enforcement authorities. This section provides for the remuneration of the chairman of such tribunals.

Definitions. For 'the Ministers' see s 4.

Instruments and documents

48. Regulations and orders. (1) Any power of the Ministers or the Minister to make regulations or an order under this Act includes power— (a) to apply, with modifications and adaptations, any other enactment

(including one contained in this Act) which deals with matters similar to those being dealt with by the regulations or order;

(b) to make different provision in relation to different cases or classes of case (including different provision for different areas or different classes of business); and

(c) to provide for such exceptions, limitations and conditions, and to make such supplementary, incidental, consequential or transitional provisions, as the Ministers or the Minister considers necessary or expedient.

(2) Any power of the Ministers or the Minister to make regulations or orders under this Act shall be exercisable by statutory instrument.

(3) Any statutory instrument containing— (a) regulations under this Act; or (b) an order under this Act other than an order under section 60(3) below, shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(4) Before making— (a) any regulations under this Act, other than regulations under section

17(2) or 18(l)(c) above; or (b) any order under Part I of this Act, the Ministers shall consult with such organisations as appear to them to be representative of interests likely to be substantially affected by the regulations or order.

(5) Any consultation undertaken before the commencement of subsection (4) above shall be as effective, for the purposes ofthat subsection, as if undertaken after that commencement.

General. This section extends the power of Ministers to make regulations and orders so as to enable them to deal with any conflict of requirement with other enactments and to allow for differing circumstances and cases in connection therewith. The usual requirements as to the exercise of delegated powers by Parliament are dealt with in sub-ss (2), (3) and (4).

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Definitions. For 'Minister' and 'the Ministers' see s 4.

49. Form and authentication of documents. (1) The following shall be in writing, namely— (a) all documents authorised or required by or under this Act to be given,

made or issued by a food authority; and (b) all notices and applications authorised or required by or under this Act

to be given or made to, or to any officer of, such an authority.

(2) The Ministers may by regulations prescribe the form of any document to be used for any of the purposes of this Act and, if forms are so prescribed, those forms or forms to the like effect may be used in all cases to which those forms are applicable.

(3) Any documents which a food authority are authorised or required by or under this Act to give, make or issue may be signed on behalf of the authority— (a) by the proper officer of the authority as respects documents relating to

matters within his province; or (b) by any officer of the authority authorised by them in writing to sign

documents of the particular kind or, as the case may be, the particular document.

(4) Any document purporting to bear the signature of an officer who is expressed— (a) to hold an office by virtue of which he is under this section empowered

to sign such a document; or (ft) to be duly authorised by the food authority to sign such a document or

the particular document, shall for the purposes of this Act, and of any regulations and orders made under it, be deemed, until the contrary is proved, to have been duly given, made or issued by authority of the food authority.

(5) In this section— 'proper officer', in relation to any purpose and to any food authority or

any areas, means the officer appointed for that purpose by that authority or, as the case may be, for that area;

'signature' includes a facsimile of a signature by whatever process reproduced.

General. This section provides: (a) that all documents authorised or required by or under this Act and all notices

and applications authorised by or under this Act shall be in writing. The term 'writing' is defined in the Interpretation Act 1978 as including typing, printing, lithography, photography, and other modes of representing or reproducing words in a visible form;

(ò) that the Ministers may prescribe the form of any such documents; (c) that authentication of documents shall be by the proper officer of a food

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authority or an officer authorised by that authority so to do; (d) that there shall be a presumption, until the contrary is proved, that any

document purporting to bear the signature of an officer authorised etc as above has been duly given, made or approved by the food authority.

Definitions. For 'food authority' see s 5. For 'the Ministers' see s4.

50. Service of documents. (1) Any document which is required or authorised by or under this Act to be given to or served on any person may, in any case for which no other provision is made by this Act, be given or served either— (a) by delivering it to that person; (b) in the case of any officer of an enforcement authority, by leaving it, or

sending it in a prepaid letter addressed to him, at his office; (c) in the case of an incorporated company or body, by delivering it to

their secretary or clerk at their registered or principal office, or by sending it in a prepaid letter addressed to him at that office; or

(d) in the case of any other person, by leaving it, or sending it in a prepaid letter addressed to him, at his usual or last known residence.

(2) Where a document is to be given to or served on the owner or the occupier of any premises and it is not practicable after reasonable inquiry to ascertain the name and address of the person to or on whom it should be given or served, or the premises are unoccupied, the document may be given or served by addressing it to the person concerned by the description of 'owner' or 'occupier' of the premises (naming them) and— (a) by delivering it to some person on the premises; or (b) if there is no person on the premises to whom it can be delivered, by

affixing it, or a copy of it, to some conspicuous part of the premises.

General. There is no change in the law as to the service of documents under this Act.

Amendments of other Acts

51. Contamination of food: emergency orders 1985 c 48. (1) Part I of the Food and Environment Protection Act 1985 (contamination of food) shall have effect, and shall be deemed always to have had effect, subject to the amendments specified in subsection (2) below.

(2) The amendments referred to in subsection (1) above are— (a) in subsection (1) of section 1 (power to make emergency orders), the

substitution for paragraph (a) of the following paragraph— \a) there exist or may exist circumstances which are likely to create a

hazard to human health through human consumption of food;'; (b) in subsection (2) of that section, the omission of the definition of

'escape';

104


(c) the substitution for subsection (5) of that section of the following subsection—

'(5) An emergency order shall refer to the circumstances or suspected circumstances in consequence of which in the opinion of the designating authority making it food such as is mentioned in subsection (1)(6) above is, or may be, or may become, unsuitable for human consumption; and in this Act "designated circumstances" means the circumstances or suspected circumstances to which an emergency order refers in pursuance of this subsection.';

(d) in section 2(3) (powers when emergency order has been made), the substitution for the words 'a designated incident' of the words 'designated circumstances';

(e) in paragraph (a) of subsection (1) of section 4 (powers of officers), the substitution for the words 'an escape of substances' of the words 'such circumstances as are mentioned in section 1(1) above'; and

( / ) in paragraphs (b) and (c) of that subsection, the substitution for the words 'the designated incident' of the words 'the designated circumstances'.

General. The amendments to the Food and Environment Protection Act 1985 made by this section bring that Act into line with this Act in relation to emergency orders.

52. Markets, sugar beet and cold storage 1984 c 30. In the Food Act 1984 (in this Act referred to as 'the 1984 Act')— (a) Part III (markets); and (b) Part V (sugar beet and cold storage), shall have effect subject to the amendments specified in Schedule 2 to this Act.

Supplemental

53. General interpretation. (1) In this Act, unless the context otherwise requires—

'the 1984 Act' means the Food Act 1984; 'the 1956 Act' means the Food and Drugs (Scotland) Act 1956; 'advertisement' includes any notice, circular, label, wrapper, invoice or

other document, and any public announcement made orally or by any means of producing or transmitting light or sound, and 'advertise' shall be construed accordingly;

'analysis' includes microbiological assay and any technique for establishing the composition of food, and 'analyse' shall be construed accordingly;

'animal' means any creature other than a bird or fish; 'article' does not include a live animal or bird, or a live fish which is

not used for human consumption while it is alive;

105


'container' includes any basket, pail, tray, package or receptacle of any kind, whether open or closed;

'contravention', in relation to any provision, includes any failure to comply with that provision;

'cream' means that part of milk rich in fat which has been separated by skimming or otherwise;

'equipment' includes any apparatus; 'exportation' and 'importation' have the same meanings as they have

for the purposes of the Customs and Excise Management Act 1979, and 'export' and 'import' shall be construed accordingly;

'fish' includes crustaceans and molluscs; 'functions' includes powers and duties; 'human consumption' includes use in the preparation of food for

human consumption; 'knacker's yard' means any premises used in connection with the busi

ness of slaughtering, flaying or cutting up animals the flesh of which is not intended for human consumption;

'milk' includes cream and skimmed or separated milk; 'occupier', in relation to any ship or aircraft of a description specified

in an order made under section 1(3) above or any vehicle, stall or place, means the master, commander or other person in charge of the ship, aircraft, vehicle, stall or place;

'officer' includes servant; 'preparation', in relation to food, includes manufacture and any form

of processing or treatment, and 'preparation for sale' includes packaging, and 'prepare for sale' shall be construed accordingly;

'presentation', in relation to food, includes the shape, appearance and packaging of the food, the way in which the food is arranged when it is exposed for sale and the setting in which the food is displayed with a view to sale, but does not include any form of labelling or advertising, and 'present' shall be construed accordingly;

'proprietor', in relation to a food business, means the person by whom that business is carried on;

'ship' includes any vessel, boat or craft, and a hovercraft within the meaning of the Hovercraft Act 1968, and 'master' shall be construed accordingly;

'slaughterhouse' means a place for slaughtering animals, the flesh of which is intended for sale for human consumption, and includes any place available in connection with such a place for the confinement of animals while awaiting slaughter there or for keeping, or subjecting to any treatment or process, products of the slaughtering of animals there;

'substance' includes any natural or artificial substance or other matter, whether it is in solid or liquid form or in the form of a gas or vapour;

'treatment', in relation to any food, including subjecting it to heat or cold.

106


(2) The following Table shows provisions defining or otherwise explaining expressions used in this Act (other than provisions defining or explaining an expression used only in the same section)—

authorised officer of a food authority section 5(6) business section 1(3) commercial operation section 1(3) and (4) contract material section 1(3) emergency control order section 13(1) emergency prohibition notice section 12(1) emergency prohibition order section 12(2) enforcement authority section 6(1) examination and examine section 28(2) food section 1(1), (2) and (4) food authority section 5 food business section 1(3) food premises section 1(3) food safety requirements and related expressions section 8(2) food source section 1(3) improvement notice section 10(1) injury to health and injurious to health section 7(3) the Minister section 4(1) and (2) the Ministers section 4(1) premises section 1(3) prohibition order section 11(5) public analyst section 27(1) sale and related expressions section 2 unfit for human consumption section 8(4)

(3) Any reference in this Act to regulations or orders made under it shall be construed as a reference to regulations or orders made under this Act by the Ministers or the Minister.

(4) For the purposes of this Act, any class or description may be framed by reference to any matters or circumstances whatever, including in particular, in the case of a description of food, the brand name under which it is commonly sold.

(5) Where, apart from this subsection, any period of less than seven days which is specified in this Act would include any day which is— (a) a Saturday, a Sunday, Christmas Day or Good Friday; or (b) a day which is a bank holiday under the Banking and Financial Deal

ings Act 1971 in the part of Great Britain concerned, that day shall be excluded from that period.

54. Application to Crown. (1) Subject to the provisions of this section, the provisions of this Act and of regulations and orders made under it shall bind the Crown.

(2) No contravention by the Crown of any provision of this Act or of any regulations or order made under it shall make the Crown criminally liable; but the High Court or, in Scotland, the Court of Session may, on the appli-

107


cation of an enforcement authority, declare unlawful any act or omission of the Crown which constitutes such a contravention.

(3) Notwithstanding anything in subsection (2) above, the provisions of this Act and of regulations and orders made under it shall apply to persons in the public service of the Crown as they apply to other persons.

(4) If the Secretary of State certifies that it appears to him requisite or expedient in the interests of national security that the powers of entry conferred by section 32 above should not be exercisable in relation to any Crown premises specified in the certificate, those powers shall not be exercisable in relation to those premises; and in this subsection 'Crown premises' means premises held or used by or on behalf of the Crown.

(5) Nothing in this section shall be taken as in any way affecting Her Majesty in her private capacity; and this subsection shall be construed as if section 38(3) of the Crown Proceedings Act 1947 (interpretation of references in that Act to Her Majesty in her private capacity) were contained in this Act.

General. This section fundamentally changes the law relating to Crown immunity. Under amendments to the Food Act 1984 National Health Service Hospitals were subject to the Act but all other Crown establishments were exempt. This section brings HM prisons, military catering establishments, public service canteens and restaurants and all similar premises within the scope of the Act. Note that the Crown is not criminally liable but an enforcement authority may apply to the High Court or the Court of Session in Scotland for a declaration that any act or omission by the Crown is unlawful. Servants of the Crown are liable to prosecution in their own right.

55. Water supply: England and Wales 1989 c l 5 . (1) Nothing in Part II of this Act or any regulations or order made under that Part shall apply in relation to the supply of water to any premises, whether by a water undertaker or by means of a private supply (within the meaning of Chapter II of Part II of the Water Act 1989).

(2) In the following provisions of that Act, namely— section 52 (duties of water undertakers with respect to water quality); section 53 (regulations for preserving water quality); and section 64 (additional powers of entry for the purposes of Chapter II),

for the words 'domestic purposes', wherever they occur, there shall be substituted the words 'domestic or food production purposes'.

(3) In subsection (2) of section 56 of that Act (general functions of local authorities in relation to water quality), for the words 'domestic purposes' there shall be substituted the words 'domestic or food production purposes' and for the words 'those purposes' there shall be substituted the words 'domestic purposes'.

(4) In subsection (1) of section 57 of that Act (remedial powers of local

108


authorities in relation to private supplies), for the words 'domestic purposes', in the first place where they occur, there shall be substituted the words 'domestic or food production purposes'.

(5) In subsection (1) of section 66 of that Act (interpretation etc of Chapter II), after the definition of 'consumer' there shall be inserted the following definition—

'"food production purposes" shall be construed in accordance with subsection (1A) below;'.

(6) After that subsection there shall be inserted the following subsection— '(1A) In this Chapter references to food production purposes are references to the manufacturing, processing, preserving or marketing purposes with respect to food or drink for which water supplied to food production premises may be used; and in this subsection "food production premises" means premises used for the purposes of a business of preparing food or drink for consumption otherwise than on the premises.'

General. In the Food Safety Bill, as originally published, it was intended to exempt all water, except that in bottles, from this Act. It was then realised during the Parliamentary passage of the Bill that water supplied to food manufacturers and processors would not be subject to this Act or to the Water Act 1989. That omission has now been rectified by the amendment of the 1989 Act to include the words 'domestic or food production purposes' in all appropriate provisions. For the appropriate provisions of the Water Act 1989 and regulations made thereunder, see DivB, Butterworths Law of Food and Drugs.

56. Water supply: Scotland 1980 c45. (1) Nothing in Part II of this Act or any regulations or order made under that Part shall apply in relation to the supply of water or any premises, whether by a water authority (within the meaning of section 3 of the Water (Scotland) Act 1980) or by means of a private supply (within the meaning of Part VIA of that Act).

(2) In the following provisions of that Act, namely— section 76A (duties of water authorities with respect to water quality); and section 76B (regulations for preserving water quality),

for the words 'domestic purposes', wherever they occur, there shall be substituted the words 'domestic or food production purposes'.

(3) In subsection (2) of section 76F of that Act (general functions of local authorities in relation to water quality), for the words 'domestic purposes' there shall be substituted the words 'domestic or food production purposes' and for the words 'those purposes' there shall be substituted the words 'domestic purposes'.

(4) In subsection (1) of section 76G of that Act (remedial powers of local authorities in relation to private supplies), for the words 'domestic pur-

109


poses', in the first place where they occur, there shall be substituted the words 'domestic or food production purposes'.

(5) In subsection (1) of section 76L of that Act (interpretation etc of Part VIA), after the definition of 'analyse' there shall be inserted the following definition—

'"food production purposes" shall be construed in accordance with subsection (1A) below;'.

(6) After that subsection there shall be inserted the following subsection— '(1A) In this Part references to food production purposes are references to the manufacturing, processing, preserving or marketing purposes with respect to food or drink for which water supplied to food production premises may be used; and in this subsection "food production premises" means premises used for the purposes of a business of preparing food or drink for consumption otherwise than on the premises.'

General. This section applies similar provisions to those in s 55 to water supplies in Scotland.

57. Scilly Isles and Channel Islands. (1) This Act shall apply to the Isles of Scilly subject to such exceptions and modifications as the Ministers may by order direct.

(2) Her Majesty may by Order in Council direct that any of the provisions of this Act shall extend to any of the Channel Islands with such exceptions and modifications (if any) as may be specified in the Order.

58. Territorial waters and the continental shelf. (1) For the purposes of this Act the territorial waters of the United Kingdom adjacent to any part of Great Britain shall be treated as situated in that part.

(2) An Order in Council under section 23 of the Oil and Gas (Enterprise) Act 1982 (application of civil law) may make provision for treating for the purposes of food safety legislation— (a) any installation which is in waters to which that section applies; and (b) any safety zone around any such installation, as if they were situated in a specified part of the United Kingdom and for modifying such legislation in its application to such installations and safety zones.

(3) Such an Order in Council may also confer on persons of a specified description the right to require, for the purpose of facilitating the exercise of specified powers under food safety legislation— (a) conveyance to and from any installation, including conveyance of any

equipment required by them; and (b) the provision of reasonable accommodation and means of subsistence

while they are on any installation.

110


(4) In this section— 'food safety legislation' means this Act and any regulations and orders

made under it and any corresponding provisions in Northern Ireland; 'installation' means an installation to which subsection (3) of the said

section 23 applies; 'safety zone' means an area which is a safety zone by virtue of Part III

of the Petroleum Act 1987; and 'specified' means specified in the Order in Council.

General. In order to ensure that this Act shall apply to all premises, ships and other forms of conveyance under United Kingdom jurisdiction, this section creates a presumption that territorial waters are within the United Kingdom and Orders in Council made under the Oil and Gas (Enterprise) Act 1982 may apply the Act to gas and oil platforms and similar installations together with the right of conveyance of persons and equipment to and from such installations.

59. Amendments, transitional provisions, savings and repeals. (1) The enactments mentioned in Schedule 3 to this Act shall have effect subject to the amendments there specified (being minor amendments and amendments consequential on the preceding provisions of this Act).

(2) The Ministers may by order make such modifications of local Acts, and of subordinate legislation (within the meaning of the Interpretation Act 1978), as appear to them to be necessary or expedient in consequence of the provisions of this Act.

(3) The transitional provisions and savings contained in Schedule 4 to this Act shall have effect; but nothing in this subsection shall be taken as prejudicing the operation of sections 16 and 17 of the said Act of 1978 (which relate to the effect of repeals).

(4) The enactments mentioned in Schedule 5 to this Act (which include some that are spent or no longer of practical utility) are hereby repealed to the extent specified in the third column of that Schedule.

60. Short title, commencement and extent. (1) This Act may be cited as the Food Safety Act 1990.

(2) The following provisions shall come into force on the day on which this Act is passed, namely—

section 13; section 51; and paragraphs 12 to 15 of Schedule 2 and, so far as relating to those para

graphs, section 52.

(3) Subject to subsection (2) above, this Act shall come into force on such day as the Ministers may by order appoint, and different days may be appointed for different provisions or for different purposes.

I l l


(4) An order under subsection (3) above may make such transitional adaptations of any of the following, namely— (a) the provisions of this Act then in force or brought into force by the

order; and (b) the provisions repealed by this Act whose repeal is not then in force or

so brought into force, as appear to the Ministers to be necessary or expedient in consequence of the partial operation of this Act.

(5) This Act, except— this section; section 51, section 58(2) to (4); and paragraphs 7, 29 and 30 of Schedule 3 and, so far as relating to those

paragraphs, section 59(1), does not extend to Northern Ireland.

SCHEDULES

Schedule 1 Provisions of Regulations under Section 16(1) Composition of food

1. Provision for prohibiting or regulating— (a) the sale, possession for sale, or offer, exposure or advertisement for

sale, of any specified substance, or of any substance of any specified class, with a view to its use in the preparation of food; or

(b) the possession of any such substance for use in the preparation of food.

Fitness etc of food

2.—(1) Provision for prohibiting— (a) the sale for human consumption; or (b) the use in the manufacture of products for sale for such consumption, of food derived from a food source which is suffering or has suffered from, or which is liable to be suffering or to have suffered from, any disease specified in the regulations.

(2) Provision for prohibiting or regulating, or for enabling enforcement authorities to prohibit or regulate— (a) the sale for human consumption; or (ft) the offer, exposure or distribution for sale for such consumption, of shellfish taken from beds or other layings for the time being designated

112


(4) An order under subsection (3) above may make such transitional adaptations of any of the following, namely— (a) the provisions of this Act then in force or brought into force by the

order; and (b) the provisions repealed by this Act whose repeal is not then in force or

so brought into force, as appear to the Ministers to be necessary or expedient in consequence of the partial operation of this Act.

(5) This Act, except— this section; section 51, section 58(2) to (4); and paragraphs 7, 29 and 30 of Schedule 3 and, so far as relating to those

paragraphs, section 59(1), does not extend to Northern Ireland.

SCHEDULES

Schedule 1 Provisions of Regulations under Section 16(1) Composition of food

1. Provision for prohibiting or regulating— (a) the sale, possession for sale, or offer, exposure or advertisement for

sale, of any specified substance, or of any substance of any specified class, with a view to its use in the preparation of food; or

(b) the possession of any such substance for use in the preparation of food.

Fitness etc of food

2.—(1) Provision for prohibiting— (a) the sale for human consumption; or (b) the use in the manufacture of products for sale for such consumption, of food derived from a food source which is suffering or has suffered from, or which is liable to be suffering or to have suffered from, any disease specified in the regulations.

(2) Provision for prohibiting or regulating, or for enabling enforcement authorities to prohibit or regulate— (a) the sale for human consumption; or (ft) the offer, exposure or distribution for sale for such consumption, of shellfish taken from beds or other layings for the time being designated

112

Schedule 1: Provinons of Regulations under Section 16(1)

by or under the regulations.

3.—(1) Provision for regulating generally the treatment and disposal of any food— (a) which is unfit for human consumption; or (ft) which, though not unfit for human consumption, is not intended for,

or is prohibited from being sold for, such consumption.

(2) Provision for the following, namely— (a) for the registration by enforcement authorities of premises used or

proposed to be used for the purpose of sterilising meat to which sub-paragraph (1) above applies, and for prohibiting the use for that purpose of any premises which are not registered in accordance with the regulations; or

(b) for the issue by such authorities of licences in respect of the use of premises for the purpose of sterilising such meat, and for prohibiting the use for that purpose of any premises except in accordance with a licence issued under the regulations.

Processing and treatment of food

4. Provision for the following, namely— (a) for the giving by persons possessing such qualifications as may be pre

scribed by the regulations of written opinions with respect to the use of any process or treatment in the preparation of food, and for prohibiting the use for any such purpose of any process or treatment except in accordance with an opinion given under the regulations; or

(b) for the issue by enforcement authorities of licences in respect of the use of any process or treatment in the preparation of food, and for prohibiting the use for any such purpose of any process or treatment except in accordance with a licence issued under the regulations.

Food hygiene

5.—(1) Provision for imposing requirements as to— (a) the construction, maintenance, cleanliness and use of food premises,

including any parts of such premises in which equipment and utensils are cleaned, or in which refuse is disposed of or stored;

(b) the provision, maintenance and cieanüness of sanitary and washing facilities in connection with such premises; and

(c) the disposal of refuse from such premises.

(2) Provision for imposing requirements as to— (a) the maintenance and cleanliness of equipment or utensils used for the

purposes of a food business; and

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Food Safety Act 1990 Sch 1

(ft) the use, for the cleaning of equipment used for milking, of cleaning agents approved by or under the regulations.

(3) Provision for requiring persons who are or intend to become involved in food businesses, whether as proprietors or employees or otherwise, to undergo such food hygiene training as may be specified in the regulations.

6.—(1) Provisions for imposing responsibility for compliance with any requirement imposed by virtue of paragraph 5(1) above in respect of any premises— (a) on the occupier of the premises; and (ft) in the case of requirements of a structural character, on any owner of

the premises who either— (i) lets them for use for a purpose to which the regulations apply;

or (ii) permits them to be so used after notice from the authority charged

with the enforcement of the regulations.

(2) Provision for conferring in relation to particular premises, subject to such limitations and safeguards as may be specified, exemptions from the operation of specified provisions which— (a) are contained in the regulations; and (ft) are made by virtue of paragraph 5(1) above, while there is in force a certificate of enforcement authority to the effect that compliance with those provisions cannot reasonably be required with respect to the premises or any activities carried on in them.

Inspection etc of food sources

7.—(1) Provision for securing the inspection of food sources by authorised officers of enforcement authorities for the purpose of ascertaining whether they— (a) fail to comply with the requirements of the regulations; or (ft) are such that any food derived from them is likely to fail to comply with

those requirements.

(2) Provision for enabling such an officer, if it appears to him on such an inspection that any food source falls within sub-paragraph (l)(a) or (ft) above, to give notice to the person in charge of the food source that, until a time specified in the notice or until the notice is withdrawn— (a) no commercial operations are to be carried out with respect to the food

source; and (ft) the food source either is not to be removed or is not to be removed

except to some place so specified.

(3) Provision for enabling such an officer, if on further investigation it appears to him, in the case of any such food source which is a live animal or

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Schedule 2: Amendments of Parts III and V of 1984 Act

bird, that there is present in the animal or bird any substance whose presence is prohibited by the regulations, to cause the animal or bird to be slaughtered.

General. This schedule should be read with s 1(3).

Schedule 2 Amendments of Parts III and V of 1984 Act NOTE: This schedule provides for the amendment of Part III of the Food Act 1984, (markets) and Part V thereof, (sugar beet and cold storage).

Amendments of Part III

1. Part III of the 1984 Act (markets) shall be amended in accordance with paragraphs 2 to 11 below.

2.—(1) In subsection (1) of section 50 (establishment or acquisition of markets), for the words The council of a district' there shall be substituted the words Ά local authority' and for words 'their district', in each place where they occur, there shall be substituted the words 'their area'.

(2) In subsection (2) of that section, for the words 'the district' there shall be substituted the words 'the authority's area'.

(3) For subsection (3) of that section there shall be substituted the following subsection—

'(3) For the purposes of subsection (2), a local authority shall not be regarded as enjoying any rights, powers or privileges within another local authority's areas by reason only of the fact that they maintain within their own area by reason only of the fact that they maintain within their own area a market which has been established under paragraph (a) of subsection (1) or under the corresponding provision of any earlier enactment'.

3. In section 51(2) (power to sell to local authority), the work 'market' shall cease to have effect.

4.—(1) In subsection (1) of section 53 (charges by market authority), the words 'and in respect of the weighing and measuring of articles and vehicles' shall cease to have effect.

(2) For subsection (2) of that section there shall be substituted the following subsection—

'(2) A market authority who provide— (a) a weighing machine for weighing cattle, sheep or swine; or

115


(b) a cold air store or refrigerator for the storage and preservation of meat and other articles of food,

may demand in respect of the weighing of such animals or, as the case may be, the use of the store or refrigerator such charges as they may from time to time determine.'

(3) In subsection (3)(i) of that section, the words 'in respect of the weighing of vehicles, or, as the case may be,' shall cease to have effect.

5. For subsection (2) of section 54 (time for payment of charges) there shall be substituted the following subsection—

'(2) Charges payable in respect of the weighing of cattle, sheep or swine shall be paid in advance to an authorised market officer by the person bringing the animals to be weighed.'

6. In section 56(1) (prohibited sales in market hours), for the word 'district' there shall be substituted the word 'area'.

7. In section 57 (weighing machines scales), subsection (1) shall cease to have effect.

8. After that section there shall be inserted the following section— '57A. Provision of cold stores. (1) A market authority may provide a cold air store or refrigerator for the storage and preservation of meat and other articles of food.

(2) Any proposal by a market authority to provide under this section a cold air store or refrigerator within the area of another local authority requires the consent of that other authority, which shall not be unreasonably withheld.

(3) Any question whether or not such a consent is unreasonably withheld shall be referred to and determined by the Ministers.

(4) Subsections (1) to (5) of section 250 of the Local Government Act 1972 (which relate to local inquiries) shall apply for the purposes of this section as if any reference in those subsections to that Act included a reference to this section.'

9. Section 58 (weighing of articles) shall cease to have effect.

10. In section 60 (market byelaws), after paragraph (c) there shall be inserted the following paragraph—

\d) after consulting the fire authority for the area in which the market is situated, for preventing the spread of fires in the market.'

11. In section 61 (interpretation of Part III), the words from 'and this Part' to the end shall cease to have effect and for the definition of 'market authority' there shall be substituted the following definitions—

'"fire authority" means an authority exercising the functions of a fire authority under the Fire Services Act 1947;

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Schedule 2: Amendments of Parts III and V of 1984 Act

"food" has the same meaning as in the Food Safety Act 1990; "local authority" means a district council, a London borough council

or a parish or community council; "market authority" means a local authority who maintain a market

which has been established or acquired under section 50(1) or under the corresponding provisions of any earlier enactment.'

Amendments of Part V

12. Part V of the 1984 Act (sugar beet and cold storage) shall be amended in accordance with paragraphs 13 to 16 below.

13.—(1) In subsections (1) and (2) of section 68 (research and education), for the word 'Company', wherever it occurs, there shall be substituted the words 'processors of home-grown beet'.

(2) After subsection (5) of that section there shall be inserted the following subsection—

'(5A) An order under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.'.

(3) In subsection (6) of that section, for the definition of 'the Company' and subsequent definitions there shall be substituted—

'"year" means a period of 12 months beginning with 1 April; and in this section and sections 69 and 69A "home-grown beet" means sugar beet grown in Great Britain'.

14. In subsection (3) of section 69 (crop price), for the words '"homegrown beet" means sugar beet grown in Great Britain; and' there shall be substituted the words 'and section 69A'.

15. After that section there shall be inserted the following section— '69A. Information. (1) For the purpose of facilitating— (a) the making of a determination under section 69(1); or (b) the preparation or conduct of discussions concerning Community

arrangements for or relating to the regulations of the market for sugar,

the appropriate Minister may serve on any processor of home-grown beet a notice requiring him to furnish in writing, within such period as is specified in the notice, such information as is so specified.

(2) Subject to subsection (3), information obtained under subsection (1) shall not be disclosed without the previous consent in writing of the person by whom the information was furnished; and a person who discloses any information so obtained in contravention of this subsection shall be liable— (a) on conviction on indictment, to a fine or to imprisonment for a term

117


not exceeding two years or to both; (6) on summary conviction, to a fine not exceeding the statutory maxi

mum or to imprisonment for a term not exceeding three months or to both.

(3) Nothing in subsection (2) shall restrict the disclosure of information to any of the Ministers or the disclosure— (a) of information obtained under subsection (l)(a)—

(i) to a person designated to make a determination under section 69(1); or

(ii) to a body which substantially represents the growers of homegrown beet; or

(b) of information obtained under subsection (1 )(£>), to the Community institution concerned.

(4) In this section 'the appropriate Minister' means— (a) in relation to England, the Minister of Agriculture, Fisheries and

Food; and (b) in relation to Scotland or Wales, the Secretary of State.'

16. Section 70 (provision of cold storage) shall cease to have effect.

Schedule 3 Minor and Consequential Amendments NOTE: This schedule makes minor and consequential amendments to other enactments.

The Public Health Act 1936 (c49)

1. An order made by the Secretary of State under section 6 of the Public Health Act 1936 may constitute a united district for the purposes of any functions under this Act which are functions of a food authority in England and Wales.

The London Government Act 1963 (c33)

2. Section 54(1) of the London Government Act 1963 (food, drugs, markets and animals) shall cease to have effect.

The Agriculture Act 1967 (c22)

3. In section 7(3) of the Agriculture Act 1967 (labelling of meat in relation to systems of classifying meat), the words from 'and, without prejudice' to the end shall cease to have effect. 4.—(1) In subsection (2) of section 25 of that Act (interpretation of Part I), for the definition of 'slaughterhouse' there shall be substituted the following definition—

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Schedule 3: Minor and Consequential Amendments

'"Slaughterhouse" has, in England and Wales, the meaning given by section 34 of the Slaughterhouses Act 1974 and, in Scotland, the meaning given by section 22 of the Slaughter of Animals (Scotland) Act 1980;'.

(2) In subsection (3) of that section, for the words from Tart IF to Ί955' there shall be substituted the words 'section 15 of the Slaughterhouses Act 1974 or section 1 of the Slaughter of Animals (Scotland) Act 1980'.

The Farm and Garden Chemicals Act 1967 (cSO)

5. In section 4 of the Farm and Garden Chemicals Act 1967 (evidence of analysis of products)— (a) in subsection (3), for the words 'section 76 of the Food Act 1984' there

shall be substituted the words 'section 27 of the Food Safety Act 1990'; and

(b) in subsection (7)(c), the words from 'for the reference' to Ί956' shall cease to have effect.

The Trade Descriptions Act 1968 (c29)

6. In section 2(5)(a) of the Trade Descriptions Act 1968 (certain descriptions to be deemed not to be trade descriptions), for the words 'the Food Act 1984, the Food and Drugs (Scotland) Act 1956' there shall be substituted the words 'the Food Safety Act 1990'.

7. In section 22 of that Act (admissibility of evidence in proceedings for offences under Act), in subsection (2), the paragraph beginning with the words 'In this subsection' shall cease to have effect, and after that subsection there shall be inserted the following subsection—

'(2A) In subsection (2) of this section— "the food and drugs laws" means the Food Safety Act 1990, the

Medicines Act 1968 and the Food (Northern Ireland) Order 1989 and any instrument made thereunder;

"the relevant provisions" means— (i) in relation to the said Act of 1990, section 31 and regulations made

thereunder; (ii) in relation to the said Act of 1968, so much of Schedule 3 to that

Act as is applicable to the circumstances in which the sample was procured; and

(iii) in relation to the said Order, Articles 40 and 44, or any provisions replacing any of those provisions by virtue of section 17 of the said Act of 1990, paragraph 27 of Schedule 3 to the said Act of 1968 or Article 72 or 73 of the said Order.'

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The Medicines Act 1968 (c 67)

8. In section 108 of the Medicines Act 1968 (enforcement in England and Wales)— (a) for the words 'food and drugs authority', in each place where they

occur, there shall be substituted the words 'drugs authority'; and (b) after subsection (11) there shall be inserted the following subsection—

'(12) In this section "drugs authority" means— (a) as respects each London borough, metropolitan district or non-

metropolitan county, the council of that borough, district or county; and

(b) as respects the City of London (including the Temples), the Common Council of that City.'

9. In section 109 ofthat Act (enforcement in Scotland)— (a) paragraph (c) of subsection (2) shall cease to have effect; and (b) after that subsection there shall be inserted the following subsection—

'(2A) Subsection (12) of section 108 of this Act shall have effect in relation to Scotland as if for paragraphs (a) and (b) there were substituted the words "an islands or district council" '.

10. After section 115 of that Act there shall be inserted the following section—

Ί15Α. Facilities for microbiological examinations. A drugs authority of the council of a non-metropolitan district may provide facilities for microbiological examinations of drugs.'

11. In section 132(1) of that Act (interpretation, the definition of 'food and drugs authority' shall cease to have effect and after the definition of 'doctor' there shall be inserted the following definition—

'"drugs authority" has the meaning assigned to it by section 108(2) of this Act;'.

12. In paragraph 1(2) of Schedule 3 to that Act (sampling) for the words from 'in relation to England and Wales' to 'Food and Drugs (Scotland) Act 1956' there shall be substituted the words 'except in relation to Northern Ireland, has the meaning assigned to it by section 27 of the Food Safety Act 1990'.

The Transport Act 1968 (c 73)

13. In Schedule 16 to the Transport 1968 (supplementary and consequential provisions), in paragraph 7(2), paragraphs (d) and (e) shall cease to have effect.

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The Tribunals and Inquiries Act 1971 (c 62)

14.—(1) In Schedule 1 to the Tribunals and Inquiries Act 1971 (tribunals under supervision of Council on Tribunals), paragraph 15 shall cease to have effect and after paragraph 6B there shall be inserted the following paragraph—

'6C. Food. Tribunals constituted in accordance with regulations under Part II of the Food Safety Act 1990.'

(2) In that Schedule, paragraph 40 shall cease to have effect and after paragraph 36 there shall be inserted the following paragraph—

'36A. Food. Tribunals constituted in accordance with regulations under Part II of the Food Safety Act 1990 being tribunals appointed for Scotland.'

The Agriculture (Miscellaneous Provisions) Act 1972 (c 62)

15.—(1) In subsection (1) of section 4 of the Agriculture (Miscellaneous Provisions) Act 1972 (furnishing by milk marketing boards of information derived from tests of milk)— (a) for the words 'appropriate authority' there shall be substituted the

words 'enforcement authority'; and (b) for the words from 'Milk and Dairies Regulations' to Ί956' there shall

be substituted the words 'regulations relating to milk, dairies or dairy farms which were made under, or have effect as if made under, section 16 of the Food Safety Act 1990.'

(2) In subsection (2) of that section, for the definition of 'appropriate authority' there shall be substituted the following definition—

'"enforcement authority" has the same meaning as in the Food Safety Act 1990;'

(3) Subsection (3) of that section shall cease to have effect.

The Poisons Act 1972 (c 66)

16. In section 8(4)(a) of the Poisons Act 1972 (evidence of analysis in proceedings under Act) for the words 'section 76 of the Food Act 1984, or section 27 of the Food and Drugs (Scotland) Act 1956' there shall be substituted the words 'section 27 of the Food Safety Act 1990'.

The Local Government Act 1972 (c 70)

17. In section 259(3) of the Local Government Act 1972 (compensation for loss of office)—

121


(a) in paragraph (t), for the words 'food and drugs authority, within the meaning of the Food Act 1984' there shall be substituted the words "food authority within the meaning of the Food Safety Act 1990';

(b) in paragraph (c), for sub-paragraphs (i) and (ii) there shall be substituted the words 'which are incorporated or reproduced in the Slaughterhouses Act 1974 or the Food Safety Act 1990'; and

(c) the words 'section 129(1) of the Food and Drugs Act 1955' shall cease to have effect.

The Slaughterhouses Act 1974 (c3)

18. In the following provisions of the Slaughterhouses Act 1974, namely— (a) section 2(2)(a) (requirements to be complied with in relation to slaugh

terhouse licences); (b) section 4(2)(a) (requirements to be complied with in relation to

knacker's yard licences); (c) section 12(2) (regulations with respect to slaughterhouses and knackers'

yards to prevail over byelaws); and (d) section 16(3) (regulations with respect to public slaughterhouses to pre

vail over byelaws), for the words 'section 13 of the Food Act 1984' there shall be substituted the words 'section 16 of the Food Safety Act 1990'.

The Licensing (Scotland) Act 1976 (c 66)

19. In section 23(4) of the Licensing (Scotland) Act 1976 (application for new licence), for the words 'section 13 of the Food and Drugs (Scotland) Act 1956' there shall be substituted 'section 16 of the Food Safety Act 1990'.

The Weights and Measures &c. Act 1976

20.—(1) In subsection (1) of section 12 of the Weights and Measures &c. Act 1976 (shortages of food and other goods), for paragraphs (a) and (b) there shall be substituted the following paragraph—

\a) section 16 of the Food Safety Act 1990 ("the 1990 Act");'

(2) In subsection (9) of that section— (a) for paragraph (a) there shall be substituted the following paragraph—

'(a) where it was imposed under the 1990 Act— (i) the Minister of Agriculture, Fisheries and Food and the Sec

retary of State acting jointly in so far as it was imposed in relation to England and Wales; and

122


(iï) the Secretary of State in so far as it was imposed in relation to Scotland;'; and

(b) in paragraph (c), the words 'the 1956 Act or' shall cease to have effect.

21. In Schedule 6 to that Act (temporary requirements imposed by emergency orders), for paragraphs 2 and 3 there shall be substituted the following paragraph—

'Food Safety Act 1990 (c 16)

2.—(1) This paragraph applies where the relevant requirement took effect under or by virtue of the Food Safety Act 1990.

(2) The following provisions of that Act— (a) Part I (preliminary); (b) Part III (administration and enforcement); and (c) sections 40 and 50 (default powers and other supplemental pro

visions), shall apply as if the substituted requirement were imposed by regulations under section 16 ofthat Act.'

The Hydrocarbon Oil Duties Act 1979 (cS)

22. In Schedule 5 to the Hydrocarbon Oil Duties Act 1979 (sampling) in paragraph 5(d) for the words 'section 76 of the Food Act 1984, section 27 of the Food and Drugs (Scotland) Act 1956' there shall be substituted the words 'section 27 of the Food Safety Act 1990'.

The Slaughter of Animals (Scotland) Act 1980 (c 13)

23. In section 19(2) of the Slaughter of Animals (Scotland) Act 1980 (enforcement) for the words 'section 13 of the Food and Drugs (Scotland) Act 1956' there shall be substituted the words 'section 16 of the Food Safety Act 1990' and for the words 'section 36 of the said Act of 1956' there shall be substituted the words section 32 of the said Act of 1990'.

24. In section 22 of that Act (interpretation)— (a) for the definition of 'knacker's yard' there shall be substituted the fol

lowing definition— '"knacker's yard" means any premises used in connection with the

business of slaughtering, flaying or cutting up animals the flesh of

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Food Safety Act 1990 Sch3

which is not intended for human consumption; and "knacker" means a person whose business it is to carry out such slaughtering, flaying or cutting up'; and

(b) for the definition of 'slaughterhouse' there shall be substituted the following definition—

'"slaughterhouse" means a place for slaughtering animals, the flesh of which is intended for human consumption, and includes any place available in connection with such a place for the confinement of animals while awaiting slaughter there or keeping, or subjecting to any treatment or process, products of the slaughtering of animals there; and "slaughterman" means a person whose business it is to carry out such slaughtering'.

The Civic Government (Scotland) Act 1982 (c4S)

25. In section 39 of the Civic Government (Scotland) Act 1982 (street traders' licences)— (a) in subsection (3)(ò), for the words 'section 7 of the Milk and Dairies

(Scotland) Act 1914' there shall be substituted the words 'regulations made under section 19 of the Food Safety 1990'; and

(b) in subsection (4)— (i) for the words 'regulations made under sections 13 and 56 of the

Food and Drugs (Scotland) Act 1956', there shall be substituted the words 'section 1(3) of the Food Safety Act 1990';

(ii) for the words 'islands or district council' there shall be substituted the words 'food authority (for the purposes of section 5 of the Food Safety Act 1990)'; and

(iii) for the words 'sections 13 and 56 of the Food and Drugs (Scotland) Act 1956', there shall substituted the words 'section 16 of the Food Safety Act 1990'.

The Public Health (Control of Disease) Act 1894 (c22)

26. In section 3(2) of the Public Health (Control of Disease) Act 1984 (jurisdiction and powers of port health authority), for paragraph (a) there shall be substituted the following paragraph—

\a) of a food authority under the Food Safety Act 1990;'.

27. In section 7(3) of that Act (London port health authority), for paragraph (d) there shall be substituted the following paragraph—

\d) of a food authority under any provisions of the Food Safety Act 1990.'

124


28.—(1) In subsection (1) of section 20 of that Act (stopping of work to prevent spread of disease), in paragraph (b) for the words 'subsection (1) of section 28 of the Food Act 1984' there shall be substituted 'subsection (1A) below'.

(2) After that subsection there shall be inserted the following subsection— '(1A) The diseases to which this subsection applies are— (a) enteric fever (including typhoid and paratyphoid fevers); (b) dysentry; (c) diphtheria; {d) scarlet fever; (e) acute inflammation of the throat; ( / ) gastro-enteritis; and (g) undulant fever.'

The Food and Environment Protection Act 1985 (c48)

29. In section 24(1) of the Food and Environment Protection Act 1985 (interpretation)— (a) in the definition of 'designated incident', for the words 'designated inci

dent' there shall be substituted the words 'designated circumstances'; (ft) the definition of 'escape' shall cease to have effect; and (c) for the definition of 'food' there shall be substituted—

'"food" has the same meaning as in the Food Safety Act 1990.'

30. In section 25 of that Act (Northern Ireland) after subsection (4) there shall be inserted the following subsection—

'(4A) Section 24(1) above shall have effect in relation to Northern Ireland as if for the definition of "food" there were substituted the following definition—

" 'food' has the meaning assigned to it by Article 2(2) of the Food (Northern Ireland) Order 1989, except that it includes water which is bottled or is an ingredient of food;".'

The Local Government Act 1985 (c 51)

31. In paragraph 15 of Schedule 8 to the Local Government Act 1985 (trading standards and related functions)— (a) sub-paragraph (2) shall cease to have effect; and (b) at the end of sub-paragraph (6) there shall be added the words 'or sec

tion 5(1) of the Food Safety Act 1990'.

125


The Weights and Measures Act 1985 (c 72)

32. In section 38 of the Weights and Measures Act 1985 (special powers of inspectors), subsection (4) (exclusion for milk) shall cease to have effect.

33. In section 93 of that Act (powers under other Acts with respect to marking of food) for the words 'Food Act 1984' there shall be substituted the words 'Food Safety Act 1990'.

34. In section 94(1) of that Act (interpretation), in the definition of 'drugs' and 'food' for the words 'Food Act 1984, or, in Scotland, the Food and Drugs (Scotland) Act 1956' there shall be substituted the words 'Food Safety Act 1990'.

The Agriculture Act 1986 (c49)

35. In section 1(6) of the Agriculture Act 1986 (provision of agricultural goods and services), in the definition of 'food', for the words 'Food Act 1984' there shall be substituted 'Food Safety Act 1990'.

The National Health Service (Amendment) Act 1986 (c 66)

36.—(1) In subsection (2) of section 1 of the National Health Service (Amendment) Act 1986 (application of food legislation to health authorities and health service premises)— (a) for the words 'appropriate authority' there shall be substituted the word

'Ministers'; and (b) for the word 'authority' there shall be substituted the word 'Ministers'.

(2) For subsection (7) of that section there shall be substituted—

'(7) In this section— "the Ministers" has the same meaning as in the Food Safety Act

1990; "the food legislation" means the Food Safety Act 1990 and any regu

lations or orders made (or having effect as if made) under it; "health authority"— (a) as respects England and Wales, has the meaning assigned to it

by section 128 of the 1977 Act; and (b) as respects Scotland, means a Health Board constituted under

section 2 of the 1978 Act, the Common Services Agency constituted under section 10 of that Act or a State Hospital Management Committee constituted under section 91 of the Mental Health (Scotland) Act 1984.'

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Schedule 4: Transitional Provinons and Savings

The Consumer Protection Act 1987 (c43)

37. In section 19(1) of the Consumer Protection Act 1987 (interpretation of Part II), in the definition of 'food' for the words 'Food Act 1984' there shall be substituted 'Food Safety Act 1990'.

The Road Traffic Offenders Act 1988 (c53)

38. In section 16(7) of the Road Traffic Offenders Act 1988 (meaning of 'authorised analyst' in relation to proceedings under Act), for the words 'section 76 of the Food Act 1984, or section 27 of the Food and Drugs (Scotland) Act 1956' there shall be substituted the words 'section 27 of the Food Safety Act 1990'.

Schedule 4 Transitional Provisions and Savings

Ships and aircraft

1. In relation to any time before the commencement of the first order under section 1(3) of this Act— (a) any ship which is a home-going ship within the meaning of section 132

of the 1984 Act or section 58 of the 1956 Act (interpretation) shall be regarded as premises for the purposes of this Act; and

(b) the powers of entry conferred by section 32 of this Act shall include the right to enter any ship or aircraft for the purpose of ascertaining whether there is in the ship or aircraft any food imported as part of the cargo in contravention of the provisions of regulations made under Part II of this Act;

and in this Act as it applies by virtue of this paragraph 'occupier', in relation to any ship or aircraft, means the master, commander or other person in charge of the ship or aircraft.

Regulations under the 1984 Act

2.—(1) In so far as any existing regulations made, or having effect as if made, under any provision of the 1984 Act specified in the first column of Table A below have effect in relation to England and Wales, they shall have effect, after the commencement of the relevant repeal, as if made under the provisions of this Act specified in relation to that provision in the second column of that Table, or such of those provisions as are applicable.

127


(2) In this paragraph and paragraphs 3 and 4 below 'existing regulations' means— (a) any regulations made, or having effect as if made, under a provision

repealed by this Act; and (b) any orders having effect as if made under such regulations, which are in force immediately before the coming into force of that repeal; and references to the commencement of the relevant repeal shall be construed accordingly.

TABLE A

Provision of the 1984 Act Provision of this Act

section 4 (composition etc of food)

section 7 (describing food) section 13 (food hygiene)

section 33 (milk and dairies)

section 34 (registration), so far as relating to dairies or dairy farms

section 38 (milk: special designations) section 73(2) (qualification of officers) section 76(2) (public analysts) section 79(5) (form of certificate) section 119 (Community provisions)

sections 16(l)(a), (c) and (/) and (3) and 17(1)

section 16(1)(£) section 16(1)(6), (c), (d) and (/), (2) and

(3) section 16(1X6), (c), (d) and (/), (2) and

(3) section 19

section 18(2) section 5(6) section 27(2) section 49(2) section 17(2)

Regulations under the 1956 Act

3. Any existing regulations made, or having effect as if made, under any provision of the 1956 Act specified in the first column of Table B below shall have effect, after the commencement of the relevant repeal, as if made under the provisions of this Act specified in relation to that provision in the second column of that Table, or such of those provisions as are applicable.

TABLE B

Provision of the 1956 Act Provision of this Act

section 4 (composition etc of food)

section 7 (describing food) section 13 (food hygiene)

section 16(2) (regulations as to milk) section 27(2) (public analysts) section 29(3) (form of certificate) section 56A (Community provisions)

sections 16(l)(a), (c) and (/) and (3) and 17(1)

section 16(1)(£) section 5(6) and 16(1)(6), (c), (d) and

(/), (2) and (3) section 18(2) section 27(2) section 49(2) section 17(2)

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Schedule 4: Tranntional Provisions and Savings

Other regulations

4. In so far as any existing regulations made under section 1 of the Importation of Milk Act 1983 have effect in relation to Great Britain, they shall have effect, after the commencement of the relevant repeal, as if made under section 18(l)(ft) of this Act.

Orders with respect to milk in Scotland

5.—(1) Any existing order made under section 12(2) of the Milk and Dairies (Scotland) Act 1914 (orders with respect to milk) shall have effect, after the commencement of the relevant repeal, as if it were regulations made under section 16(l)(ft), (d) and ( /) and (2) of this Act.

(2) Any existing order made under section 3 of the Milk and Dairies (Amendment) Act 1922 (sale of milk under special designations) shall have effect, after the commencement of the relevant repeal, as if it were regulations made under section 18(2) of this Act.

(3) In this paragraph 'existing order' means any order made under a provision repealed by this Act which is in force immediately before the coming into force of that repeal; and references to the commencement of the relevant repeal shall be construed accordingly.

Disqualification orders

6. The repeal by this Act of section 14 of the 1984 Act (court's power to disqualify caterers) shall not have effect as respects any order made, or having effect as if made, under that section which is in force immediately before the commencement of that repeal.

Food hygiene byelaws

7.—(1) The repeal by this Act of section 15 of the 1984 Act (byelaws as to food) shall not have effect as respects any byelaws made, or having effect as if made, under that section which are in force immediately before the commencement of that repeal.

(2) In so far as any such byelaws conflict with any regulations made, or having effect as if made, under Part II of this Act, the regulations shall prevail.

129


Closure orders

8. The repeal by this Act of section 21 of the 1984 Act or section 1 of the Control of Food Premises (Scotland) Act 1977 (closure orders) shall not have effect as respects any order made, or having effect as if made, under that section which is in force immediately before the commencement of that repeal.

General. This schedule should be read with s 60(3).

Schedule 5 Repeals

TABLE A

Chapter Short title Extent of repeal

1914 c 46. The Milk and Dairies (Scotland) Act 1914.

1922 c 54. The Milk and Dairies (Amendment) Act 1922.

1934 c 51. The Milk Act 1934. 1949 c 34. The Milk (Special

Designations) Act 1949. 1956 c 30. The Food and Drugs

(Scotland) Act 1956. 1963 c 33. The London Government Act

1963. 1967 c 22. The Agriculture Act 1967.

1967 c 50. The Farm and Garden Chemicals Act 1967.

1968 c 29. The Trade Descriptions Act 1968.

1968 c 67. The Medicines Act 1968.

1968 c 73. The Transport Act 1968.

1971 c 62. The Tribunals and Inquiries Act 1971.

1972 c 66. The Agriculture (Miscellaneous Provisions) Act 1972.

1972 c 68. The European Communities Act 1972.

1976 c 77. The Weights and Measures &c. Act 1976.

The whole Act.

The whole Act.

The whole Act. The whole Act.

The whole Act.

Section 54(1).

In section 7(3), the words from 'and, without prejudice' to the end.

In section 4(7)(c), the words from 'for the reference' to '1956'.

In section 22(2), the paragraph beginning with the words 'In this subsection'.

In section 132(1), the definition of 'food and drugs authority'.

In Schedule 5, paragraph 17. In Schedule 16, in paragraph

7(2), paragraphs (d) and (e). In Schedule 1, paragraphs 15

and 40. Section 4(3).

In Schedule 4, paragraph 3(2)(c).

In section 12(9)(c), the words 'the 1956 Act or'.

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Schedule 5: Repeals

1977 e 28.

1983 e 37.

1984 e 30.

The Control of Food Premises (Scotland) Act 1977.

The Importation of Milk Act 1983.

The Food Act 1984.

The whole Act.

The whole Act.

1985 c 48.

1985 c51.

1985 c 72.

The Food and Environment Protection Act 1985.

The Local Government Act 1985.

The Weights and Measures Act 1985.

Parts I and II. In section 51(2), the word

Market'. In section 53, in subsection (1)

the words 'and in respect of the weighing and measuring of articles and vehicles', and in subsection (3)(b) the words 'in respect of the weighing of vehicles, or as the case may be,'

Section 57(1). Section 58. In section 61, the words from

'and this Part' to the end. Part IV. Sections 70 and 92. In section 93, in subsection

(2), paragraphs (b) to (d) and, in subsection (3), paragraphs (a) to (e) and (A) to(/).

In section 94, subsection (1) except as regards offences under Part III of the Act, and subsection (2).

In section 95, subsections (2) to (8).

Sections 96 to 109. Sections 111 to 120. In section 121, subsections (2)

and (3). Sections 122 to 131. In section 132, subsection (1)

except the words 'In this Act, unless the context otherwise requires' and the definitions of 'animal' and 'the Minister'.

Sections 133 and 134. In section 136, in subsection

(2), paragraphs (b) and (c). Schedules 1 to 11. In section 1(2), the definition

of'escape'. In section 24(1), the definition

of'escape'. In Schedule 8, paragraph

15(2). Section 38(4).

131

Documents

A Guide to the Food Safety Act 1990