UK Offence Report

Amendment of the Foods for Special Medical Purposes (Scotland) Regulations 2000

regulation 3 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

3 After regulation

7 of the Foods for Special Medical Purposes (Scotland) Regulations 2000 insert– Transitional arrangements

8 In respect of any contravention before 1st January 2010, no person commits an offence under regulation 5(a) consisting of

a contravention of regulation 3(1)(a) where the action that would otherwise constitute the offence consists of selling

a medical food the composition of which fails to comply with Article

3 of the Directive as read with the row relating to manganese set out in the second part of Table 1 (minerals) in the Annex to the Directive if the composition of that medical food would have complied with Article

3 of the Directive as read with the row relating to manganese set out in the second part of Table 1 (minerals) in the Annex to the Directive as it stood before it was amended by Commission Directive 2006/141/EC on infant formulae and follow on formulae and amending Directive 1999/21/EC. .

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 This is the text as originally made; later amendments are not shown here.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 3?

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 Infant Formula and Follow-on Formula (Scotland) Amendment Regulations 2008 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 here: this instrument amends another one, and the penalty for the offence is in the instrument being amended.

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
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