UK Offence Report

Amendment of the Infant Formula and Follow on Formula (Scotland) Regulations 2007

regulation 2(6) of The Infant Formula and Follow-on Formula (Scotland) Amendment Regulations 2008

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

6 For paragraph (3) of regulation 31 (revocation and transitional arrangements) substitute–

3 In respect of any contravention or failure to comply before 1st January 2010, no person commits an offence under regulation 28(1) consisting of

a contravention of or

a failure to comply with–

a regulation 3(1), where–

i the action that would otherwise constitute the offence consists of marketing infant formula which contravenes or fails to comply with regulation 5, 6, 8, 10, 11,

12 or 14(1), (2) or (3), and

ii that action does not constitute an offence under regulation 22(1) of the 1995 Regulations consisting of

a contravention of or

a failure to comply with regulation 2(a)(i) or (ii) of those Regulations;

b regulation 3(1), where–

i the action that would otherwise constitute the offence consists of marketing infant formula which contravenes or fails to comply with regulation

17 or 19, and

ii that action, had it taken place on 10th January 2008, would not have constituted an offence under regulation 22(1) of the 1995 Regulations as they then stood consisting of

a contravention of or

a failure to comply with regulation 2(a)(iii) of those Regulations;

c regulation 3(1), where–

i the action that would otherwise constitute the offence consists of marketing infant formula which contravenes or fails to comply with regulation 20(1) in so far as regulation 20(1) applies in relation to the shape, appearance and packaging of that infant formula concerned, and

ii that action, had it taken place on 10th January 2008, would not have constituted an offence under regulation 22(1) of the 1995 Regulations as they then stood consisting of

a contravention of or

a failure to comply with regulation 2(a)(iv) of those Regulations in so far as regulation 2(a)(iv) applied in relation to the shape, appearance and packaging of the product concerned;

d regulation 3(2), where–

i the action that would otherwise constitute the offence consists of marketing follow on formula which contravenes or fails to comply with regulation 5, 7, 9, 10, 11,

12 or 14(1), (2) or (3), and

ii that action does not constitute an offence under regulation 22(1) of the 1995 Regulations consisting of

a contravention of or

a failure to comply with regulation 3(a) or (b) of those Regulations;

e regulation 3(2), where–

i the action that would otherwise constitute the offence consists of marketing follow on formula which contravenes or fails to comply with regulation

18 or 19, and

ii that action, had it taken place on 10th January 2008, would not have constituted an offence under regulation 22(1) of the 1995 Regulations as they then stood consisting of

a contravention of or

a failure to comply with regulation (3)(c) of those Regulations;

f regulation 3(2), where–

i the action that would otherwise constitute the offence consists of marketing follow-on formula which contravenes or fails to comply with regulation 20(2) in so far as regulation 20(2) applies in relation to the shape, appearance and packaging of that follow on formula; and

ii that action, had it taken place on 10th January 2008, would not have constituted an offence under regulation 22(1) of the 1995 Regulations as they then stood consisting of

a contravention of or

a failure to comply with regulation 3(d) of those Regulations in so far as regulation 3(d) applied in relation to the shape, appearance and packaging of the product concerned;

g regulation 4, where the action that would otherwise constitute the offence does not constitute an offence under regulation 22(1) of the 1995 Regulations consisting of

a contravention of or

a failure to comply with regulation 2(b)(i) or (ii) of those Regulations;

h regulation 4, where the action that would otherwise constitute the offence, had it taken place on 10th January 2008, would not have constituted an offence under regulation 22(1) of the 1995 Regulations as they then stood consisting of

a contravention of or

a failure to comply with regulation 2(b)(iii) of those Regulations; or

i regulation 4, where the action that would otherwise constitute the offence, had it taken place on 10th January 2008, would not have constituted an offence under regulation 22(1) of the 1995 Regulations as they then stood consisting of

a contravention of or

a failure to comply with regulation 2(b)(iv) of those Regulations in so far as regulation 2(b)(iv) applied in relation to the shape, appearance and packaging of the product concerned. .

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
contravening a requirement of the instrument
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 2(6)?

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. Doing the thing the provision prohibits under the Infant Formula and Follow-on Formula (Scotland) Amendment Regulations 2008, whatever the reason for doing it.
  2. Where the requirement is a positive duty, letting the time for performing it pass without performing it.

Penalty

Mode of trial
Set by another provision — the instrument states the penalty by reference to an Act or to another regulation
Maximum fine
Not determined
Maximum prison (summary)
Not determined

The instrument does not state a penalty itself. It sets one by reference to regulation 22(1) of the 1995 Regulations.

penalty is that of the referenced enactment; not stated in this instrument.

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.

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
24 September 2008
In force from
4 November 2008
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 amend the Infant Formula and Follow on Formula (Scotland) Regulations 2007 (“the 2007 Regulations”). The amendments are necessary to give effect to the decision of the Court of Session in the Petition of the Infant and Dietetic Food Association Limited and others for Judicial Review of a decision by the Scottish Ministers to make and lay before the Scottish Parliament the Infant Formula and Follow on Formula (Scotland) Regulations 2007. The Court’s judgement was issued on 10th June 2008, and held that the 2007 Regulations, in relation to the enforcement of the labelling requirements, were invalid. These Regulations seek to correct that position. These Regulations amend the 2007 Regulations to– a revise the list of regulations with which the marketing of infant formula and follow on Formula must comply (regulation 2(2)); b provide that the presentation of infant formula and follow on formula shall comply with the provisions of specific regulations (regulation 2(3)); c revise the list of regulations with which infant formula exported to third countries must comply (regulation 2(4)); d revise the list of regulations with which export of follow on formula to third countries must comply (regulation 2(5)); and e create transitional arrangements that apply in relation to the enforcement of– i the labelling requirements for infant formula and follow-on formula, and ii the requirements that apply in relation to the shape, appearance and packaging of infant formula and follow-on formula (regulation 2(6)). These Regulations also provide transitional arrangements with regard to the Foods for Special Medical Purposes (Scotland) Regulations 2000 (regulation 3) and correct a typographical error in the Schedule to the 2007 Regulations (regulation 2(7)). No regulatory impact assessment has been produced for this instrument.

Read the full note and every offence in this instrument

Other offences in the same instrument

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”; c10_offence_under_parent_act; the provision says the conduct “constitutes 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