Offence of contravening EU requirements on flavourings, including smoke flavourings

regulation 5 of The Food Additives, Flavourings, Enzymes and Extraction Solvents Regulations (Northern Ireland) 2013

• Status not determined
• Strict liability
• Food, consumer protection, trading standards, product safety and age-restricted sales

This offence was read from the text as made, and no revised version was available, so a later revocation could not be ruled out. Check the current text at legislation.gov.uk.

What the provision says

5 Any person who contravenes, or who uses or places on the market

a product which fails to comply with, any of the provisions of Regulation 2065/2003 specified in the first column of Table

1 of Schedule 3, as read with Article 20 (transitional measures), commits an offence.

Text as made, from legislation.gov.uk. © Crown copyright, reused under the Open Government Licence v3.0. This is the text as originally made; later amendments are not shown here.

Who it binds, and what has to be proved

Binds

a person

Conduct

selling or supplying something the instrument restricts

Fault element

Strict liability

Burden of proof

No statutory defence — prosecution proves everything

The prosecution must prove that the conduct happened. This is a strict liability offence as drafted: the provision uses no word of intention, knowledge, recklessness or negligence, so there is no need to show that a person meant to do it, knew about it, or was careless.

Intention, knowledge and carelessness are irrelevant to guilt. They may still matter a great deal to sentence.

The provision states no defence, so the prosecution bears the burden on every element of the offence.

Classifier’s reasoning: no word of intention, knowledge, recklessness or negligence in the offence or its provision.

What would breach regulation 5?

These are illustrations, not law. They are generated from the provision’s own words to show the shape of the offence. Whether any particular conduct is caught depends on the full text, on any amendment since, and on the facts.

1. Selling the goods under the Food Additives, Flavourings, Enzymes and Extraction Solvents Regulations (Northern Ireland) 2013 where the instrument prohibits the sale outright.
2. Supplying without carrying out a check the instrument requires first, even where the sale would otherwise be lawful.
3. Offering for sale counts as well as selling: displaying stock is enough where the provision reaches an offer.

Penalty

Mode of trial

Not determined

Maximum fine

Not determined

Maximum prison (summary)

Not determined

no penalty is stated in this instrument; it may be in the enabling Act, or in a general penalties provision this pass did not connect to the offence.

No penalty was determined from this instrument. It may be in the enabling Act, or in a general penalties provision this pass did not connect to the offence. Absence of a figure here is not evidence that the offence carries no penalty.

Sentencing

Offences of this kind are usually sentenced under the guidelines below. This is a mapping by subject, not a finding about this provision, and the links go to a search of the Sentencing Council’s own site.

• Sentencing organisations: fines and the means of a corporate defendant All courts in England and Wales

  How a fine on a company is arrived at from its turnover. Relevant far beyond the guidelines that state it, because a very large share of the offences in this corpus can only be committed by an organisation.

• Health and safety offences, corporate manslaughter and food safety and hygiene offences: definitive guideline Magistrates' courts and the Crown Court in England and Wales · in force from 1 February 2016

  Covers breaches of duty under the Health and Safety at Work etc. Act 1974 and the regulations made under it, and food safety and food hygiene offences. Sentencing turns on culpability and on the seriousness and likelihood of harm risked, not only on the harm that happened.

• Reduction in sentence for a guilty plea: definitive guideline All courts in England and Wales · in force from 1 June 2017

  The sliding scale of credit for pleading guilty, from one third at the first stage of proceedings downwards.

• General guideline: overarching principles All courts in England and Wales · in force from 1 October 2019

  The guideline a court uses when there is no offence-specific guideline, which is the position for the overwhelming majority of offences created by statutory instrument. It sets out how culpability and harm are assessed from first principles.

• Totality: definitive guideline All courts in England and Wales

  How to sentence more than one offence at once so that the total is just and proportionate - frequently in point here, because regulatory prosecutions commonly charge several breaches of the same instrument.

Prosecution figures

No published per-offence figure was found for this provision, and it could not be matched to a Ministry of Justice offence code. Offences created by statutory instrument very largely do not have one. Absence of a figure is not evidence that the offence is unused.

Status and lifecycle

Current status

Status not determined

Made

11 September 2013

In force from

31 October 2013

Extent

Not stated

How this was established: read from the text as made; no revised version available, so later revocation could not be ruled out.

What the instrument is for

(This note is not part of the Regulations) — the explanatory note published with the instrument, © Crown copyright.

These Regulations provide for the execution and enforcement of the following EU Regulations — a Regulation (EC) No 2065/2003 of the European Parliament and of the Council on smoke flavourings used or intended for use in or on foods (OJ No. L309, 26.11.2003, p.1); b Regulation (EC) No 1332/2008 of the European Parliament and of the Council on food enzymes (OJ No. L354, 31.12.2008, p.7); c Regulation (EC) No 1333/2008 of the European Parliament and of the Council on food additives (OJ No. L354, 31.12.2008, p.16); d Regulation (EC) No 1334/2008 of the European Parliament and of the Council on flavourings and certain food ingredients with flavouring properties for use in and on foods (OJ No. L354, 31.12.2008, p.34). These Regulations also implement Directive 2009/32/EC of the European Parliament and of the Council on the approximation of the laws of the Member States on extraction solvents used in the production of foodstuffs and food ingredients (OJ No. L141, 6.6.2009, p.3). These Regulations revoke, in whole or in part, the following Regulations — a The Extraction Solvents in Food Regulations (Northern Ireland) 1993 (S.R. 1993 No. 330); b The Smoke Flavourings Regulations (Northern Ireland) 2005 (S.R. 2005 No. 76); c The Food (Suspension of the Use of E128 Red 2G Food Colour) Regulations (Northern Ireland) 2007 (S.R. 2007 No. 352); d The Food Enzymes Regulations (Northern Ireland) 2009 (S.R. 2009 No. 415); e The Food Additives Regulations (Northern Ireland) 2009 (S.R. 2009 No. 416); f The Flavourings in Food Regulations (Northern Ireland) 2010 (S.R. 2010 No. 414). These Regulations, in Part 2, provide that it is an offence, subject to any applicable transitional arrangements, to contravene or to use or place on the market a product that contravenes specified requirements of — a Regulation (EC) No 1333/2008 relating to food additives (regulation 3 and Table 1 of Schedule 1); b Regulation (EC) No 1334/2008 relating to food flavourings and foods with flavouring properties (regulation 4 and Table 1 of Schedule 2); c Regulation (EC) No 2065/2003 relating to smoke flavourings (regulation 5 and Table 1 of Schedule 3); and d Regulation (EC) No 1332/2008 relating to food enzymes (regulation 6 and Table 1 of Schedule 4). These Regulations also provide in Part 2 that in the case of certain types of non-compliance, relating to labelling, an officer of an enforcement authority may serve an improvement notice under Article 9 of the Food Safety (Northern Ireland) Order 1991 as applied and modified by these Regulations requiring specified steps to be taken, failing which an offence will be committed (regulation 7). A person served with an improvement notice may appeal against it to a magistrates court under Article 37 of the Order (regulation 8). Part 3 of these Regulations implement Directive 2009/32/EC relating to extraction solvents, in particular by — a specifying the circumstances where the controls on extraction solvents do not apply (regulation 10); b defining what constitutes a permitted extraction solvent (regulation 11); c prohibiting any person from using an extraction solvent other than a permitted extraction solvent, as defined, in the production of food (regulation 12); d prohibiting any person from placing on the market an extraction solvent that is not a permitted extraction solvent or which is not accompanied by certain information on the packaging, container or label (regulations 13 and 14). These Regulations in Part 4 — a designate the Food Standards Agency as the competent authority for the purposes of applications for authorisation of a smoke flavouring (regulation 15); b assign the duty of enforcing these Regulations to district councils (regulation 16); c provide for the maximum penalty to which a person may be liable on conviction for an offence under these Regulations (regulation 17); d provide that, where food is certified as being food which it is an offence to place on the market, the food will be treated for the purposes of Article 8 of the Food Safety (Northern Ireland) Order 1991 as failing to comply with food safety requirements (regulation 18); and e apply, with certain modifications, various provisions of the Food Safety (Northern Ireland) Order 1991 for the purposes of these Regulations (regulation 19 and Schedule 5). These Regulations in Part 5 — a make a minor amendment to the Food Labelling Regulations (Northern Ireland) 1996 (regulation 20); and b revoke certain rules in whole or in part (regulation 21 and Schedule 6).

Read the full note and every offence in this instrument

Other offences in the same instrument

• Any person who contravenes regulation 12 or 13(1) commits an offenceregulation 17(1)
• Condemnation of foodregulation 18
• Any person who contravenes, or who uses or places on the market a product that fails to comply with, any of…regulation 3
• Any person who contravenes, or who uses or places on the market a product which fails to comply with, any of…regulation 4
• Any person who contravenes, or who uses or places on the market a product which fails to comply with, any of…regulation 6

How this was identified as an offence

Everything above rests on the judgement that this provision creates a criminal offence, rather than mentioning one. That judgement is made by rule, from the words of the provision, and this is the rule that made it — with a confidence of 0.92.

Basis

the provision says a person “commits an offence”

Confidence

0.92 of 1.00

A provision that states a penalty for an offence created elsewhere can read very like one that creates an offence, and the rules can mistake the one for the other. If the text quoted above sets a penalty for something made an offence by another provision, treat the classification on this page with that in mind, and read the instrument.

Check the source

• This provision on legislation.gov.uk The authoritative text. Check it before relying on anything here.
• The Food Additives, Flavourings, Enzymes and Extraction Solvents Regulations (Northern Ireland) 2013 Every offence this instrument creates, and its explanatory note
• Food, consumer protection, trading standards, product safety and age-restricted salesOther offences on the same subject
• Offences created in 2013