UK Offence Report

Offence of contravening EU requirements on flavourings, including smoke flavourings

regulation 4 of The Food Additives, Flavourings, Enzymes and Extraction Solvents (Scotland) Regulations 2013

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

4 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 1334/2008 specified in the first column of Schedule 2, as read with Article 4 (flavouring substances under evaluation) of Commission Implementing Regulation (EU) No 872/2012 adopting the list of flavouring substances provided for by Regulation (EC) No 2232/96 of the European Parliament and of the Council and with transitional measures contained in or to be read with Regulation 1334/2008, 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 This is the text as originally made; later amendments are not shown here.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 4?

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 (Scotland) Regulations 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.

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
S

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, which apply to Scotland only, provide for the execution and enforcement of the following EU Regulations— 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; Regulation (EC) No 1332/2008 of the European Parliament and of the Council on food enzymes; Regulation (EC) No 1333/2008 of the European Parliament and of the Council on food additives; 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. 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. 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— Regulation (EC) No 1333/2008 relating to food additives (regulation 3 and Schedule 1); Regulation (EC) No 1334/2008 relating to food flavourings and foods with flavouring properties (regulation 4 and Schedule 2); Regulation (EC) No 2065/2003 relating to smoke flavourings (regulation 5 and Schedule 3); and Regulation (EC) No 1332/2008 relating to food enzymes (regulation 6 and Schedule 4). Part 3 of these Regulations implement Directive 2009/32/EC relating to extraction solvents, in particular by— specifying the circumstances where the controls on extraction solvents do not apply (regulation 8); defining what constitutes a permitted extraction solvent (regulation 9); prohibiting any person from using an extraction solvent other than a permitted extraction solvent, as defined, in the production of food (regulation 10); 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 11 and 12). These Regulations in Part 4— designate the Food Standards Agency as the competent authority for the purposes of applications for authorisation of a smoke flavouring (regulation 13); assign the duty of enforcing these Regulations to food authorities (regulation 14); provide for the maximum penalty to which a person may be liable on conviction for an offence under these Regulations (regulation 15); provide that, where it appears to an authorised officer that a product fails to comply with certain requirements or that food is placed on the market contrary to a specified prohibition, the food will be treated for the purposes of subsections (3) to (9) of section 9 of the Food Safety Act 1990 (with certain modifications) as failing to comply with food safety requirements (regulation 16); and apply, with certain modifications, various provisions of the Food Safety Act 1990 for the purposes of these Regulations (regulation 17). These Regulations in Part 5— make a minor amendment to the Food Labelling Regulations 1996 (regulation 20) and the Jam and Similar Products (Scotland) Regulations 2004; and revoke certain instruments in whole or in part (regulation 19 and Schedule 5). A business and regulatory impact assessment has not been prepared for this instrument as no impact on business or the public or third sectors is foreseen.

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”
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