UK Offence Report

Offences and penalties

regulation 44(1) of The Food Labelling Regulations 1996

The provision has been revoked and no saving provision preserving liability for earlier conduct was found.

What the provision says

1 If any person— a sells any food which is not marked or labelled in accordance with the provisions of Part II of these Regulations, or b sells or advertises for sale any food in respect of which a claim is made, nutrition labelling is given or a description or a name is used in contravention of the provisions of Part III of these Regulations, or c sells any food from a vending machine in contravention of regulation 29, or d sells any food after the date shown in a “use by” date relating to it, or e being a person other than whichever of— i the manufacturer, ii the packer, or iii the seller established within the European Community, was originally responsible for so marking the food, removes or alters the appropriate durability indication relating to that food, he shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.

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 This is the text as originally made; later amendments are not shown here.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
Legal burden on the defendant

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 gives a defence the defendant must prove, on the balance of probabilities. A legal burden of that kind can be read down to a merely evidential one under section 3 of the Human Rights Act 1998 where placing it on the defendant would be disproportionate (R v Lambert [2001] UKHL 37; Sheldrake v DPP [2004] UKHL 43).

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

The defence, as drafted

7 In any proceedings for an offence under these Regulations it shall be a defence for the person charged to prove— a that the food in respect of which the offence is alleged to have been committed was intended for export to a country which has legislation analogous to these Regulations and that it complies with that legislation; and b that the legislation complies with t

What would breach regulation 44(1)?

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 Labelling Regulations 1996 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
Summary only — tried in a magistrates’ court
Maximum fine
£5,000
Standard scale
Level 5
Maximum prison (summary)
Not determined

this is the level 5 value when the instrument came into force (1996-07-01); the standard scale is keyed to the date the offence was committed, and for conduct today the same words mean an unlimited fine.

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
Revoked
Revoked by
The Food Labelling (Declaration of Allergens) (Wales) Regulations 2008
Revoked on
31 May 2008
Made
9 June 1996
In force from
1 July 1996
Extent
Not stated

How this was established: the instrument was revoked by a later instrument found in this corpus.

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 Great Britain, consolidate and replace the Food Labelling Regulations 1984, the Food Labelling (Scotland) Regulations 1984 and the Milk Labelling (Scotland) Regulations 1983, and continue to implement Council Directive No. 79/112/EEC (OJ No. L33, 8.2.79, p.1) on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs (apart from the provisions of that Directive relating to net quantity), as now amended by Council Directives 85/7/EEC (OJ No. L2, 3.1.85, p.22), 86/197/EEC (OJ No. L144, 29.5.86, p.38) and 89/395/EEC (OJ No. L186, 30.6.89, p.17) and Commission Directives 91/72/EEC (OJ No. L42, 15.2.91, p.27) and 93/102/EEC (OJ No. L291, 25.11.93, p.14). They also implement Commission Directive 87/250/EEC (OJ No. L113, 30.4.87, p.57) on the indication of alcoholic strength by volume in the labelling of alcoholic beverages for sale to the ultimate consumer, Council Directive 89/398/EEC (OJ No. L186, 30.6.89, p.27) on the approximation of the laws of the Member States relating to foodstuffs intended for particular nutritional uses, Council Directive 90/496/EEC (OJ No. L276, 6.10.90, p.40) on nutrition labelling for foodstuffs, and Commission Directive 94/54/EC (OJ No. L300, 23.11.94, p.14), as now amended by Council Directive 96/21/EC (OJ No. L88, 5.4.96), concerning the compulsory indication on the labelling of certain foodstuffs of particulars other than those provided for in Council Directive 79/122/EEC. The principal provisions of the Regulations— 1 require all food which is ready for delivery to the ultimate consumer or to a catering establishment, subject to certain exceptions, to be marked or labelled with— a the name of the food (regulations 5(a), 6 to 11, and Schedules 1 and 2); b ;a list of ingredients (regulations 5(b), 12 to 18, and Schedules 3 and 4); c the appropriate durability indication (regulations 5(c), 20 to 22); d any special storage conditions or conditions of use (regulation 5(d)); e the name and address of the manufacturer or packer or of a seller (regulation 5(e)); and in certain cases— f particulars of the place of origin of the food (regulation 5(f)), and g instructions for use (regulation 5(g)); 2 require, where the labelling of a food places special emphasis on the presence or low content of an ingredient in a food, an indication of the minimum or maximum percentage respectively of that ingredient in the food (regulation 19); 3 make special provisions for the labelling of food which is not prepacked and certain similar foods, fancy confectionery products, food which is packed in small packages and indelibly marked bottles, certain foods sold at catering establishments and seasonal selection packs (regulations 23 to 28); 4 specify additional labelling requirements for food sold from vending machines and for alchoholic drinks (regulations 29 and 30), and require any compulsory indication of the strength of an alcoholic drink to be in the form “% vol” (regulation 30); 5 require specified cautionary statements to be given with raw milk (regulation 31) and a warning to be given with products consisting of skimmed milk together with non-milk fat (regulation 32); 6 specify an additional labelling requirement for food packaged in a gas so as to extend its durability (regulation 33) and specify additional labelling requirements for food containing sweeteners, added sugar and sweeteners, aspartame or more than 10% added polyols (regulation 34); 7 specify requirements as to the manner of marking or labelling of food (regulations 35 to 39); 8 prohibit a claim in the labelling or advertising of a food that it has tonic or medicinal properties, and imposes conditions for the making of— a claims relating to foods for particular used and similar foods; b reduced or low energy value claims; c protein claims; d vitamin claims; e mineral claims; f cholesterol claims; g nutrition claims, and h claims which depend upon another food (regulations 40 and 41, Schedule 6 and, in relation to nutrition claims, Schedule 7); 9 specify labelling requirements in the giving of nutritional information for a food, whether or not a nutrition claim is also being made (regulation 41(4) and Schedule 7); 10 impose restrictions on the use of certain words and descriptions in the labelling or advertising of food (regulation 42 and Schedule 8); 11 permit the use of the word “wine” in composite names for drinks other than wine or table wine in accordance with Article 43.2 of Council Regulation (EEC) No. 2392/89 (regulation 43). The Regulations also— 12 create offences, prescribe a penalty (regulation 44) and provide for the Regulations to be enforced by food authorities and port health authorities (regulation 45); 13 provide a defence in certain cases of alteration of the appropriate durability indication for a food (regulation 46); 14 provide a defence in relation to exports, in accordance with Articles 2 and 3 of Council Directive 89/397/EEC (OJ No. L186, 30.6.89, p.23) on the official control of foodstuffs, as read with the ninth recital to that Directive (regulation 47); 15 incorporate specified provisions of the Food Safety Act 1990 (regulation 48); 16 revoke the Regulations specified in Schedule 9 to the extent specified in that Schedule, and make consequential amendments (regulation 49). The Regulations do not apply— a to food imported from an EEA State in which it was lawfully produced and sold, to food imported from a Member State of the European Community in which it was lawfully sold, or to food produced outside the European Community which is imported from a Member State of the European Community, and which in all such cases, is suitably labelled (regulation 3(1)); b except insofar as they relate to advertising, to food which is not intended for sale for human consumption or to food prepared and labelled for sale before 16th November 1992 for consumption by Her Majesty’s forces or visiting forces (regulation 3(3)); c apart from the provisions relating to packaging in certain gases, nutrition labelling, claims and misleading descriptions, to— i products the labelling of which is controlled, in England and Wales, by the Specified Sugar Products Regulations 1976, the Cocoa and Chocolate Products Regulations 1976, the Honey Regulations 1976, the Condensed and Dried Milk Regulations 1977 (other than such products specially prepared for and clearly specified to be intended to be consumed by infants) or, in relation to any coffee etc. which is ready for delivery to a catering establishment, by the Coffee and Coffee Products Regulations 1978 and, in Scotland, by the sets of Scottish Regulations analogous thereto; ii products the labelling of which is regulated by Council Regulation (EEC) No. 1907/90 as read with Commission Regulation (EEC) No. 1274/91 and Council Decision 94/371/EC (hen eggs), Council Regulation (EC) No. 2991/94 (spreadable fats), Council Regulation (EEC) 2392/89 (wines and grape musts), Council Regulation (EEC) No. 2333/92 (sparkling wines and aerated sparkling wines), Council Regulation (EEC) No. 3895/91 as read with Commission Regulation (EEC) No. 3901/91 (liquer wines, semi-sparkling wines and aerated semi-sparkling wines), Council Regulation (EEC) No. 1576/89 as read with Commission Regulations (EEC) No. 3773/89 and 1014/90 (spirit drinks), Council Regulation (EEC) No. 1035/72 (fresh fruit and vegetables), Council Regulation (EEC) No. 2136/89 (preserved sardines) and Council Regulation (EEC) No. 1536/92 (preserved tuna and bonito); iii additives sold as such the labelling of which is controlled by other Regulations (regulation 4(2)); and d apart from the provisions relating to nutrition labelling, claims and misleading descriptions, to— i in certain circumstances alcoholic drinks bottled before 1st January 1983, and ii certain food prepared on domestic premises, or food prepared otherwise than in the course of a business (regulation 4(3)). In certain circumstances the provisions relating to nutrition labelling, clains and misleading descriptions do not apply to natural mineral waters (regulations 3(4) and (5)). The Regulations come into force on 1st July 1996 (regulation 1), but there is a transitional provision which makes it a defence to prove that the act was committed before 1st July 1997 or that it was committed in relation to a food that was prepacked before that date (except in the case of either the use of a generic name, or of an additive name, for an ingredient, when the date before which the act was committed or the food was prepacked, shall be 1st July 1996, and in the case of food packaged in packaging gases when that data shall be 1st January 1997); and that the matters constituting the offence would not have been an offence under the Food Labelling Regulations 1984, the Food Labelling (Scotland) Regulations 1984 or the Milk Labelling (Scotland) Regulations 1983 (regulation 49). A compliance cost assessment of the effect that these Regulations would have on the cost of business is available from the Food Labelling and Standards Division of the Ministry of Agriculture, Fisheries and Food, Ergon House, c/o Nobel House, 17 Smith Square, London SW1P 3JR.

Read the full note and every offence in this instrument

What Parliament said

Mentions of this instrument in Hansard. Parliamentary material is reused under the Open Parliament Licence v3.0.

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 is “guilty of an offence”; the provision states liability on summary conviction; the provision states a penalty in older drafting
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