# The Food Safety (Sampling and Qualifications) Regulations (Northern Ireland) 2013

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N.I.

Statutory Rules of Northern Ireland

# 2013 No. 66

Food

# The Food Safety (Sampling and Qualifications) Regulations (Northern Ireland) 2013

Made

13th March 2013

Coming into operation

6th April 2013

The Department of Health, Social Services and Public Safety F1 makes the following Regulations in exercise of the powers conferred by Articles 27(2), 30(9), 32(1),(2)(c),(d),(e),(g) and                           (h), 47(2) and 48(2) of the Food Safety (Northern Ireland) Order 1991 F2.                        

In so far as these Regulations cannot be made under powers contained in the 1991 Order, the Department of Health, Social Services                           and Public Safety makes the following Regulations in exercise of the powers conferred by section 2(2) of the European Communities                           Act 1972 F3.                        

The Department of Health, Social Services and Public Safety has been designated for the purposes of section 2(2) of the European                           Communities Act 1972 in relation to measures in the veterinary and phytosanitary fields for the protection of public health                           F4.                        

In accordance with Article 47(3A) of that Order, it has had regard to relevant advice given by the Food Standards Agency.

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 F5, there has been open and transparent public consultation during the preparation and evaluation of these Regulations.                        

F1Formerly the Department of Health and Social Services; see S.I. 1999/283 (N.I.1) Article 3(6)

F2S.I. 1991/762 (N.I.7) as amended by S.I. 1996/1663 (N.I.12), **paragraphs 26 to 42** of Schedule 5 and Schedule 6 to the Food Standards Act 1999 c.28 and S.R. 2004 Nos. 

482 and 505

F31972 c.68

F4S.I. 1999/2027

F5OJ No. L31, 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 No. L188, 18.7.2009, p14)

## Citation and commencementN.I.

1.  These Regulations may be cited as the Food Safety (Sampling and Qualifications) Regulations (Northern Ireland) 2013 and come                     into operation on 6th April 2013.                  

## InterpretationN.I.

2.—(1) In these Regulations —                  

“owner” means —                  

in the case of goods in transit, the consignor (or, if the consignor does not have an address in Northern Ireland, 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 Northern Ireland, 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 Order;                  

“the Order” means the Food Safety (Northern Ireland) Order 1991.                  

(2) The Interpretation Act (Northern Ireland) 1954 F6 applies to these Regulations as it applies to an Act of the Assembly.                  

F61954 c.33 (NI)

## Sampling and analysis provisions to which these Regulations do not applyN.I.

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 the first column of that Schedule.                  

## Qualifications of analystsN.I.

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 examinersN.I.

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

(a)before the coming into operation of these Regulations, was qualified to be a food examiner under regulation 4 of the Food                        Safety (Sampling and Qualifications) Regulations 1991 F7; 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.                  

F7S.R. 1991 No. 198

## Restrictions applying to analysts and examinersN.I.

6.—(1) A director, owner or employee of a food business or partner in a food business must not act as a public analyst or food examiner                     for the area in which such business is situated.                  

(2) A person mentioned in paragraph (1) must not analyse or examine any sample which that person knows to have been taken from                     the business.                  

## Procedure where a sample is to be analysedN.I.

7.—(1) An authorised officer who has procured a sample under Article 29 of the Order 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 part of the sampleN.I.

8.—(1) Where part of 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 (if a person other than the authorised officer);                  

(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 (if a person other than the authorised officer) 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 examinedN.I.

9.  An authorised officer who has procured a sample under Article 29 of the Order 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.                  

## CertificatesN.I.

10.—(1) Where a sample procured under Article 29 of the Order 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 Article 30(6) of the Order must, subject to such adaptations as                     circumstances may reasonably require, be in the form of the example set out in Schedule 3.                  

## Consequential amendmentsN.I.

11.  In the following provisions, for “the Food Safety (Sampling and Qualifications) Regulations (Northern Ireland) 1991” substitute                     “ the Food Safety (Sampling and Qualifications) Regulations (Northern Ireland) 2013 ”                  

(a)regulation 13(10) and (11) (analysis etc. of samples) of the Food Hygiene Regulations (Northern Ireland) 2006 F8;                  

(b)regulation 36(10) and (11) (analysis etc. of samples) of the Official Feed and Food Controls Regulations (Northern Ireland)                        2009 F9.                  

F8S.R. 2006 No. 3 There are amendments to this rule but none is relevant

F9S.R. 2009 No. 427

## RevocationN.I.

12.  The Food Safety (Sampling and Qualifications) Regulations (Northern Ireland) 1991 are revoked.                  

Sealed with the official seal of the Department of Health, Social Services and Public Safety on 13th March 2013.

L.S.

Andrew McCormick

 A senior officer of the

Department of Health, Social Services and Public Safety

 Regulation 3

## SCHEDULE 1N.I.Instruments to which specified provisions of these Regulations do not apply

F10OJ No. L364, 20.12.2006, p.5

 Regulation 5

## SCHEDULE 2N.I.Qualifications of Food Examiners

### **PART 1**N.I.

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

2.  A degree of Master of Science, provided that —N.I.

(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.N.I.

4.  The degree in Mastership in Chemical Analysis awarded by the Royal Society of Chemistry.N.I.

5.  Fellowship or Membership of the Institute of Food Science and Technology.N.I.

6.  In paragraphs 1 and 2 of this Part, “degree” means a degree awarded by a body recognised for the purposes of Article 3 of the Education (Unrecognised Degrees) (Northern                     Ireland) Order 1988 F11 (which relates to bodies empowered to award degrees in the United Kingdom) or by a university in another Member State.N.I.

F11S.I. 1988/1989 (N.I. 22)

### **PART 2**N.I.

1.  The Laboratory of the Government Chemist.N.I.

2.  A laboratory owned by a Government Department or a laboratory under the equivalent control of the government of another Member                     State.N.I.

3.  A laboratory appointed as an official control laboratory under Regulation 882/2004.N.I.

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

5.  A laboratory of a fundable body within the meaning of the Further and Higher Education (Scotland) Act 2005 F12.N.I.

F122005 asp 6

6.  A laboratory of the Scottish Agricultural College.N.I.

7.  A laboratory specialising in food microbiology and accredited to ISO/IEC 17025.N.I.

 Regulation 10(2)

## SCHEDULE 3N.I.Certificate of Analysis or Examination

## Explanatory Note

(This note is not part of the Regulations)

These Regulations revoke (at *regulation 12*) and remake with amendments provisions of the Food Safety (Sampling and Qualifications) Regulations (Northern Ireland) 1991                        (S.R. 1991 No. 198).                     

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 (Northern Ireland) Order 1991;                              

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 Order 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*).