UK Offence Report

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

regulation 2(6) of The Infant Formula and Follow-on Formula (England) (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) there is substituted the following paragraph—

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, 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 that infant formula;

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 that follow-on formula;

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 (England) (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
16 September 2008
In force from
29 October 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, which apply in relation to England only, make the legislative provisions described in paragraph 2 which are considered necessary to give effect to the judgment in the High Court of Justice in the case called R v. the Secretary of State for Health and the Welsh Ministers on the application of the Infant and Dietetics Food Association Limited (action number CO/230/2008). Judgment was delivered on 29th February 2008. Following that judgment, the High Court granted a declaration that the Infant Formula and Follow-on Formula (England) Regulations 2007 (S.I. 2007/3521) fail to comply with Commission Directive 2006/141/EC on infant formulae and follow-on formulae and amending Directive 1999/21/EC (OJ No. L401, 30.12.2006, p.1) to the extent that they prohibit as from 11 January 2008 (instead of as from 31 December 2009) trade in infant formula and follow-on formula whose labelling satisfies the labelling requirements of the Infant Formula and Follow-on Formula Regulations 1995 (S.I. 1995/77) but does not satisfy the labelling requirements of the Infant Formula and Follow-on Formula (England) Regulations 2007. These Regulations amend the Infant Formula and Follow-on Formula (England) Regulations 2007 to— revise the list of regulations that have to be complied with if a person is to market infant formula or follow-on formula (regulation 2(2)); provide that the presentation of infant formula and follow-on formula must comply with the provisions of specified regulations (regulation 2(3)); revise the list of regulations that have to be complied with if a person is to export infant formula to third countries (regulation 2(4)); revise the list of regulations that have to be complied with if a person is to export follow-on formula to third countries (regulation 2(5)); and create transitional arrangements that apply in relation to the enforcement of— the labelling requirements for infant formula and follow-on formula, and 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 Medical Food (England) Regulations 2000 (S.I. 2000/845) (regulation 3). A full impact assessment has not been produced for this instrument as no impact on the private or voluntary 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”; 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