# The Food Safety (Sampling and Qualifications) (Scotland) Regulations 2013

        - Previous
        - Next

S

Scottish Statutory Instruments

# 2013 No. 84

Food

# The Food Safety (Sampling and Qualifications) (Scotland) Regulations 2013

Made

27th February 2013

Laid before the Scottish Parliament

28th February 2013

Coming into force

6th April 2013

The Scottish Ministers make the following Regulations in exercise of the powers conferred by sections 27(2) and (5), 30(9),                           31(1), (2)(c), (d), (e), (g) and (h), 48(1) and 49(2) of the Food Safety Act 1990 F1, section 2(2) of the European Communities Act 1972 F2 and all other powers enabling them to do so.                        

In accordance with section 48(4A) of the Food Safety Act 1990, they have had regard to relevant advice given by the Food Standards                           Agency F3.                        

There has been consultation as required by Article 9 of Regulation (EC) No. 178/2002 of the European Parliament and of the Council laying down the general principles and requirements of food law, establishing                           the European Food Safety Authority and laying down procedures in matters of food safety F4.                        

F11990 c.16. Section 1(1) and (2) (definition of “food”) was substituted by S.I. 2004/2990. Sections 27(2), 30(9), 31(1), 48(1) and 49(2) were amended by paragraph 8 of Schedule 5 to the Food Standards Act 1999 (c.28). By virtue of section 40(2) of the 1999 Act, amendments made by Schedule 5 to that Act are to be taken as pre-commencement                              enactments for the purposes of the Scotland Act 1998 (c.46). The functions of the Secretary of State, in so far as within devolved competence, were transferred to the Scottish Ministers                              by virtue of section 53 of the 1998 Act. In so far as not transferred, and in so far as relating to food (including drink)                              including the primary production of food, relevant functions were transferred to the Scottish Ministers by the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 2005 (S.I. 2005/849).

F21972 c.68. Section 2(2) was amended by paragraph 15(3) of Schedule 8 to the Scotland Act 1998, section 27(1) of the Legislative and Regulatory Reform Act 2006 (c.51) and Part 1 of the Schedule to the European Union (Amendment) Act 2008 (c.7). The functions conferred on the Minister of the Crown under section 2(2), in so far as exercisable within devolved competence,                              were transferred to the Scottish Ministers by virtue of section 53 of the 1998 Act. In so far as not transferred, and in so                              far as relating to food (including drink) including the primary production of food, relevant functions were transferred to                              the Scottish Ministers by the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 2005.

F3Section 48(4A) was inserted by paragraph 21 of Schedule 5 to the 1999 Act.

F4OJ L 31, 1.2.2002, p.1. That Regulation was last amended by Commission Regulation (EC) No. 596/2009 of the European Parliament                              and of the Council adapting a number of instruments subject to the procedure referred to in Article 251 of the treaty to Council                              Decision 1999/468/EC with regard to the regulatory procedure with scrutiny: Adaptation to the regulatory procedure with scrutiny                              – Part Four (OJ L 188, 18.7.2009, p.14).

## Citation, extent and commencementS

1.  These Regulations may be cited as the Food Safety (Sampling and Qualifications) (Scotland) Regulations 2013, extend to Scotland                     only and come into force on 6th April 2013.                  

## InterpretationS

2.  In these Regulations—                  

“the Act” means the Food Safety Act 1990;                  

“owner” means—                  

in the case of goods in transit, the consignor (or, if the consignor does not have an address in Scotland, the consignee);

in the case of goods from a vending machine—

if the machine is marked with the name and address of its owner, and the address is in Scotland, that person; and

in any other case, the occupier of the premises on which the machine stands or to which it is affixed;

in any other case, the person appearing to the authorised officer to be the owner of the sample when the officer procured                              it;                           

“qualified” means qualified for the purposes of the Act.                  

## Sampling and analysis provisions to which these Regulations do not applyS

3.  The provisions of these Regulations specified in column 3 of Schedule 1 do not apply to any sample taken under the provisions                     of the Regulations listed in the corresponding entry in column 1 of that Schedule.                  

## Qualifications of analystsS

4.  A person is qualified to be a food analyst or a public analyst if that person possesses a mastership in chemical analysis                     awarded by the Royal Society of Chemistry.                  

## Qualifications of food examinersS

5.—(1) A person is qualified to be a food examiner if that person—                  

(a)before the coming into force of these Regulations, was qualified to be a food examiner under regulation 4 of the Food Safety                        (Sampling and Qualifications) Regulations 1990 F5; or                  

(b)on or after that date,                  

(i)possesses a qualification listed in Part 1 of Schedule 2; and                  

(ii)has carried out examination of food over a period or periods amounting in aggregate to at least 3 years in one or more of                        the laboratories listed in Part 2 of that Schedule.                  

(2) In calculating the qualification period in paragraph (1)(b)(ii), no account is to be taken of any period spent as an undergraduate                     in a laboratory specified in paragraphs 4 to 6 of Part 2 of Schedule 2.                  

F5S.I. 1990/2463.

## Restrictions applying to analysts and examinersS

6.—(1) No director, owner or employee of a food business or partner in a food business may act as a public analyst or food examiner                     for the area in which such business is situated.                  

(2) No person mentioned in paragraph (1) may analyse or examine any sample which that person knows to have been taken from the                     business.                  

## Procedure where a sample is to be analysedS

7.—(1) An authorised officer who has procured a sample under section 29 of the Act and who considers that it should be analysed must,                     subject to paragraph (4), cause the sample to be divided into three parts.                  

(2) If the sample consists of sealed containers and opening them would, in the opinion of the authorised officer, impede a proper                     analysis, the authorised officer must divide the sample into parts by putting the containers into three lots, and each lot                     must be treated as being a part.                  

(3) The authorised officer must—

(a)if necessary place each part in a suitable container and seal each container;                  

(b)mark or label each part or container;                  

(c)as soon as reasonably practicable give one part to the owner and give the owner notice that the sample will be analysed;                  

(d)submit one part for analysis; and                  

(e)retain one part for future submission under regulation 8.                  

(4) If the authorised officer is of the opinion that division of the parts is not reasonably practicable or is likely to impede                     a proper analysis the officer must, as soon as is reasonably practicable, give notice to the owner that the undivided sample                     will be analysed and must submit it for analysis.                  

## Submission of the retained sampleS

8.—(1) Where a sample has been retained under regulation 7(3)(e) and—                  

(a)proceedings are intended to be or have been commenced against a person for an offence in connection with that sample; and                  

(b)the prosecution intends to adduce as evidence the result of the analysis mentioned above,                  

paragraphs (2) to (6) apply.

(2) An authorised officer—

(a)may of the officer's own volition;                  

(b)must if requested by the prosecutor;                  

(c)must if the court so orders; or                  

(d)must, subject to paragraph (6), if requested by the person accused,                  

send the retained part of the sample to the Government Chemist for analysis.

(3) The Government Chemist must analyse, or direct a food analyst to analyse, the part sent under paragraph (2) and send to the                     authorised officer a Government Chemist's certificate of analysis.                  

(4) Any certificate sent by the Government Chemist must be signed by or on behalf of the Government Chemist, but the analysis                     may be carried out by a person under the direction of the person who signs the certificate.                  

(5) On receipt of the certificate the authorised officer must, as soon as is reasonably practicable, supply a copy of it to the                     prosecutor and to the person accused.                  

(6) Where a request is made under paragraph (2)(d) the authorised officer may give notice in writing to the person accused requesting                     payment of a fee specified in the notice to defray some or all of the Government Chemist's charges for performing the functions                     under paragraph (3) and in the absence of agreement by the person accused to pay the fee specified in the notice the authorised                     officer may refuse to comply with the request.                  

## Procedure where a sample is to be examinedS

9.  An authorised officer who has procured a sample under section 29 of the Act and who considers that it should be examined must—                  

(a)if necessary place the sample in a suitable container and seal the container;                  

(b)mark or label the sample or container; and                  

(c)as soon as reasonably practicable—                  

(i)submit the sample for examination; and                  

(ii)give notice to the owner that it is to be examined.                  

## CertificatesS

10.—(1) Where a sample procured under section 29 of the Act has been analysed or examined, the owner is entitled on request to be                     supplied with a copy of the certificate of analysis or examination by the enforcement authority.                  

(2) The certificate given by a food analyst or examiner under section 30(6) of the Act must be in the form set out in Schedule                     3.                  

## Consequential amendmentsS

11.  In the following provisions, for “the Food Safety (Sampling and Qualifications) Regulations 1990” substitute “ the Food Safety (Sampling and Qualifications) (Scotland) Regulations 2013 ”                  

(a)paragraphs (10) and (11) of regulation 13 (analysis etc. of samples) of the Food Hygiene (Scotland) Regulations 2006 F6; and                  

(b)paragraphs (10) and (11) of regulation 38 (analysis etc. of samples) of the Official Feed and Food Controls (Scotland) Regulations                        2009 F7.                  

F6S.S.I. 2006/3. There are amendments to this instrument but none are relevant.

F7S.S.I. 2009/446. Regulation 38(10) was amended by S.S.I. 2010/5.

## RevocationsS

12.  The instruments specified in column 1 of Schedule 4 are revoked to the extent specified in column 3 of that Schedule.                  

MICHAEL MATHESON

 Authorised to sign by the Scottish Ministers

 St Andrew's House,

 Edinburgh

27th February 2013

 Regulation 3

## SCHEDULE 1SInstruments to which the sampling provisions of these Regulations do not apply

F8OJ L 364, 20.12.2006, p.5. This Regulation was last amended by Commission Regulation (EU) No. 1058/2012 amending Regulation                              (EC) No. 1881/2006 as regards maximum levels for aflatoxins in dried figs (OJ L 313, 13.11.2012, p.14).

 Regulation 5

## SCHEDULE 2SQualifications of food examiners

### **PART 1**S

1.  A first degree (with honours) in microbiology (irrespective of the title of the degree).S

2.  A degree of master of science, provided that—S

(a)the degree was awarded following an examination rather than a thesis; and

(b)at least one paper in the degree was in microbiology.

3.  Fellowship of the Institute of Biomedical Sciences if that fellowship has been gained after passing the higher specialist                     diploma examination in medical microbiology set by that Institute.S

4.  The degree in mastership in chemical analysis awarded by the Royal Society of Chemistry.S

5.  Fellowship or membership of the Institute of Food Science and Technology.S

6.  The graduateship of the Society of Biology gained after passing the examinations in the Society's theory paper in microbiology.S

7.  In paragraphs 1 and 2 of this Part, “degree” means a degree awarded by a body recognised for the purposes of section 214 of the Education Reform Act 1988 (which relates                     to bodies empowered to award degrees in the United Kingdom) or by a university in another Member State.S

### **PART 2**S

1.  The laboratory of the Government Chemist.S

2.  A laboratory owned by a government department or a laboratory under the equivalent control of the government of another Member                     State.S

3.  A laboratory appointed as an official control laboratory under Regulation (EC) No. 882/2004 of the European Parliament and                     of the Council on official controls performed to ensure the verification of compliance with feed and food law, animal health                     and animal welfare rules F9.S

F9OJ L 165, 30.4.2004, p.1. The revised text of the Regulation is set out in a Corrigendum (OJ L 191, 28.5.2004, p.1). The Regulation                              was last amended by Commission Regulation (EU) No. 563/2012 (OJ L 168, 28.6.2012, p.24).

4.  A laboratory of a university in the United Kingdom or of another Member State.S

5.  A laboratory of a fundable body within the meaning of the Further and Higher Education (Scotland) Act 2005.S

6.  A laboratory of the Scottish Agricultural College.S

7.  A laboratory specialising in food microbiology and accredited to ISO/IEC 17025 F10.S

F10European Standard EN ISO/IEC 17025 on ‘General requirements for the competence of testing and calibration laboratories’.

 Regulation 10(2)

## SCHEDULE 3SCertificate of Analysis or Examination

### 

 Regulation 12

## SCHEDULE 4SRevocations

## Explanatory Note

(This note is not part of the Regulations)

These Regulations, in Scotland, revoke (at regulation 12 and Schedule 4) and remake with amendments provisions of the Food                        Safety (Sampling and Qualifications) Regulations 1990 (S.I. 1990/2463).                     

These Regulations—

specify the qualifications necessary to be a public analyst or food analyst (regulation 4) or food examiner (regulation 5                                 and Schedule 2) for the purposes of the Food Safety Act 1990;                              

prohibit specified persons from carrying out analyses or examinations (regulation 6);

specify the procedures to be followed when a sample has been procured under that Act for analysis or examination (regulations                                 7, 8 and 9), and exclude from these procedures samples taken under Regulations which have their own procedures (regulation                                 3 and Schedule 1); and                              

prescribe the form of certificate to be used by analysts and examiners in making their reports (regulation 10 and Schedule                                 3).                              

The Regulations also make consequential amendments to other Regulations (regulation 11).

A Business and Regulatory Impact Assessment has been prepared and placed in the Scottish Parliament Information Centre. Copies                        may be obtained from the Food Standards Agency (Scotland), 6th Floor, St Magnus House, 25 Guild Street, Aberdeen AB11 6NJ                        and online at www.legislation.gov.uk .