
1 
These Regulations may be cited as the Contaminants in Food (Scotland) Regulations 2010, extend to Scotland only and come into force on 20th October 2010.
2 

(1) In these Regulations—
 “the Act” means the Food Safety Act 1990;
 “Commission Regulation 1881/2006” means Commission Regulation (EC) No. 1881/2006 setting maximum levels for certain contaminants in foodstuffs;
 “Commission Regulation 629/2008” means Commission Regulation (EC) No. 629/2008 amending Regulation (EC) No. 1881/2006 setting maximum levels for certain contaminants in foodstuffs;
 “Commission Regulation 124/2009” means Commission Regulation (EC) No. 124/2009 setting maximum levels for the presence of coccidiostats or histomonostats in food resulting from the unavoidable carry-over of these substances in non-target feed;
 “Commission Regulation 165/2010” means Commission Regulation (EU) No. 165/2010 amending Regulation (EC) No. 1881/2006 setting maximum levels for certain contaminants in foodstuffs as regards aflatoxins.
(2) Any other expression used in these Regulations and in Commission Regulation 1881/2006 or in Commission Regulation 124/2009 has the same meaning in these Regulations as it bears in the Commission Regulation concerned.
(3) Any reference to “the Annex” is a reference to the Annex to Commission Regulation 1881/2006 as that Annex may be amended from time to time, and any reference to that Regulation is to be construed accordingly.
3 

(1) Subject to the transitional arrangements contained in—
(a) Article 11 of Commission Regulation 1881/2006;
(b) Article 2 of Commission Regulation 629/2008; or
(c) Article 2 of Commission Regulation 165/2010,a person who contravenes or fails to comply with any of the EU provisions specified in paragraph (2) is guilty of an offence.
(2) The EU provisions are—
(a) Article 1(1) of Commission Regulation 1881/2006 (prohibition on the placing on the market of foodstuffs containing contaminants in excess of prescribed limits contained in the Annex), as read with the Annex and, in the case of groundnuts, other oilseeds, tree nuts, dried fruit, rice and maize, with Article 4 of that Regulation;
(b) Article 3 of Commission Regulation 1881/2006 (prohibitions on use, mixing and detoxification); and
(c) Article 1(1) of Commission Regulation 124/2009 (prohibitions on marketing or mixing foods containing coccidiostats or histomonstats at levels in excess of prescribed limits).
(3) Anyone convicted of an offence under paragraph (1) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.
4 

(1) It is the duty of each food authority within its area to execute and enforce these Regulations, Commission Regulation 1881/2006 and Commission Regulation 124/2009.
(2) The competent authority for the purposes of—
(a) Article 2(2) of Commission Regulation 1881/2006 (justification by food business operators of concentration or dilution factors), and
(b) Article 1(1) of Commission Regulation 124/2009 (relating to the duty to investigate the reasons for the contamination),is the authority having the duty to enforce under paragraph (1).
5 

(1) The following provisions of the Act apply for the purposes of these Regulations with the modification that any reference in those provisions to the Act or Part of it is to be construed as a reference to these Regulations—
(a) section 3 (presumptions that food intended for human consumption);
(b) section 20 (offences due to fault of another person);
(c) section 21 (defence of due diligence), with the modification that—
(i) subsections (2) to (4) apply in relation to an offence under regulation 3 as they apply in relation to an offence under section 14 (selling food not of the nature or substance or quality demanded) or 15 (falsely describing or presenting food), and
(ii) in subsection (4) the references to “sale” are deemed to include references to “placing on the market”;
(d) section 30(8) (which relates to documentary evidence);
(e) section 33(1) (obstruction etc. of officers);
(f) section 33(2) (obstruction etc. of officers), with the modification that the reference to “any such requirement as is mentioned in subsection (1)(b) above” is deemed to be a reference to any such requirement as is mentioned in section 33(1)(b) as applied by sub–paragraph (e);
(g) section 35(1) (punishment of offences), in so far as it relates to offences under section 33(1) as applied by sub–paragraph (e);
(h) section 35(2) and (3) (punishment of offences), in so far as it relates to offences under section 33(2) as applied by sub–paragraph (f);
(i) section 36 (offences by bodies corporate);
(j) section 36A (offences by Scottish partnerships); and
(k) section 44 (protection of officers acting in good faith).
(2) Section 9 of the Act (inspection and seizure of suspected food) applies for the purposes of these Regulations as if it read as follows—“
9. 

(1) An authorised officer of a food authority may at all reasonable times inspect any food intended for human consumption which has been placed on the market and subsections (2) to (7) below shall apply where, on such an inspection, it appears to the authorised officer that the placing on the market of any food fails to comply with the requirements specified in regulation 3(2)(a) and (c) of the Contaminants in Food (Scotland) Regulations 2010 (“the EU requirements”).
(2) The authorised officer may either—
(a) give notice to the person in charge of the food that, until the notice is withdrawn, the food or any specified portion of it—
(i) is not to be used for human consumption, and
(ii) either is not to be removed or is to be removed to a place at which there are facilities to carry out sampling in the manner required by law; or
(b) seize the food and remove it in order to have it dealt with by the sheriff.
(3) Where the authorised officer exercises the power conferred by subsection (2)(a) above, that officer shall, as soon as is reasonably practicable and in any event within 21 days, determine whether or not the food complies with the EU requirements and—
(a) if satisfied that it does comply, shall forthwith withdraw the notice; or
(b) if not so satisfied, shall seize the food and remove it in order to have it dealt with by the sheriff.
(4) Where an authorised officer exercises the powers conferred by subsection (2)(b) or (3)(b) above, the officer shall inform the person in charge of the food of the intention to have it dealt with by the sheriff and any person who in connection with regulation 3(2)(a) or (c) of the above Regulations might be liable to a prosecution in respect of the food shall, if that person attends before the sheriff by whom the food falls to be dealt with, be entitled to be heard and to call witnesses.
(5) If it appears to the sheriff, on the basis of such evidence as the sheriff considers appropriate in the circumstances, that any food falling to be dealt with under this section fails to comply with the EU requirements the sheriff shall condemn the food and order—
(a) the food to be destroyed or to be so disposed of as to prevent it from being used for human consumption; and
(b) any expenses reasonably incurred in connection with the destruction or disposal to be defrayed by the owner of the food.
(6) If a notice under subsection (2)(a) above is withdrawn, or the sheriff 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.
(7) Any disputed question as to the right to or the amount of any compensation payable under subsection (6) above shall be determined by a single arbiter appointed, failing agreement between the parties, by the sheriff.
(8) Any person who knowingly contravenes the requirements of a notice under subsection (2)(a) above shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.
(9) In this section, “authorised officer” means any person who is authorised in writing, either generally or specifically, by a food authority to act in matters arising under the Contaminants in Food (Scotland) Regulations 2010.”.
6 
In Schedule 1 to the Food Safety (Sampling and Qualifications) Regulations 1990 (provisions to which those Regulations do not apply), for the entry relating to the Contaminants in Food (Scotland) Regulations 2009 there is substituted—“
The Contaminants in Food (Scotland) Regulations 2010 (to the extent that a sample falls to be prepared and analysed in accordance with Commission Regulation 1881/2006 as that expression is defined in those Regulations) S.S.I. 2010/.”
7 
The Contaminants in Food (Scotland) Regulations 2009 are revoked.
SHONA ROBISON
Authorised to sign by the Scottish Ministers
St Andrew’s House,
Edinburgh
15th September 2010