The Official Feed and Food Controls (Scotland) (Amendment) Regulations 2011

Who will this consultation be of most interest to?
Feed and food business operators of meat establishments under veterinary control and local authorities in Scotland.

What is the subject of this consultation?
The Official Feed and Food Controls (Scotland) (Amendment) Regulations 2011.

What is the purpose of this consultation?
To seek comments on the draft Official Feed and Food Controls (Scotland) Amendment Regulations 2011. This Scottish Statutory Instrument (SSI) will update and amend the Official Feed and Food Controls (Scotland) Regulations 2009.The proposed amendment to the regulations would remove the right of food business operators to continue to operate, pending the outcome of an appeal against decisions by the FSA or local authorities to refuse or withdraw the approval of those establishments handling products of animal origin, for which approval is required under EU legislation.

The Food Standards Agency in Scotland is seeking your views on the draft Official Feed and Food Controls (Scotland) Amendment Regulations 2011. This Scottish Statutory Instrument (SSI), which is enclosed at Annexe B, will amend the Official Feed and Food Controls (Scotland) Regulations 2009. The reason for introducing the new SSI is to remove the right of food business operators to continue to operate when the outcome of an appeal against the refusal or withdrawal of approval is pending.

The amendment will bring the national legislation in line with EU requirements relating to official controls carried out to ensure compliance with food law, and will reinforce public health protection.

Your views are also sought on the Business Regulatory Impact Assessment (BRIA) for the SSI, attached at Annexe C.

Background
Regulation (EC) 853/2004 of the European Parliament and of the Council laying down specific hygiene rules for food of animal origin (Official Journal L139, 30.4.2004, 55–205) specifies hygiene rules for businesses that produce products of animal origin, who must either be registered or, where appropriate, approved by the competent authority before they can sell food. The Food Standards Agency (FSA) is the competent authority under Regulation 853/2004 for the approval of slaughterhouses, cutting plants and game handling establishments.

Regulation (EC) 882/2004 of the European Parliament and of the Council on official controls performed to ensure the verification of compliance with feed and food law, animal health and welfare rules (Official Journal L191, 28.5.2004, 1-52) requires the FSA to visit an establishment on receipt of an application for approval. The FSA grants full approval if the establishment complies with the relevant requirements of food law in relation to infrastructure, equipment and operational requirements. A conditional approval is granted if the establishment meets all the infrastructure and equipment requirements. Conditional approval can given for a maximum period of six months where it is evident from a further visit that clear progress has been made but the establishment does not meet all of the relevant requirements. After that six-month period, either full approval or a refusal must be given.

Regulation 12(1) of the Official Feed and Food Controls (Scotland) Regulations 2009, which implements in Scotland Regulation (EC) 882/2004, says that if the food business operator’s approval to operate is refused or withdrawn, the food business operator can appeal against that decision to a Sherriff’s Court. Regulation 12 (5) allows the food business operator to continue to operate pending the determination of the appeal. Similar rules apply in England, Wales and Northern Ireland.

The right to continue to operate pending the outcome of the appeal was previously set out in domestic legislation, which transposed the former sectoral hygiene directives that prescribed the structural and hygiene requirements for premises which had to be licensed to produce red, white and wild game meat. When the new EU food hygiene legislation and the Food Hygiene (Scotland) Regulations 2006 came into force on 1 January 2006, the right to continue operating pending the hearing of an appeal against refusal or withdrawal of an approval was retained.

Since the EU regulations that deal with hygiene of food from animal origin are aimed at protecting public health, the Agency considers it inappropriate for food business operators that are non-compliant with food law, to continue to operate until appeals are dealt with. Refusal or withdrawal of approval is a last resort that is only applied where, despite a lengthy process of enforcement actions by the official veterinarian or the enforcement officer of the food authority working with the food business operator, serious deficiencies remain.

If the food business operator continues to operate pending the outcome of appeal, FSA Operations, or the enforcement officer of the food authority, may have take day-to-day enforcement action to address deficiencies in compliance during that period. This is unsatisfactory, especially since the current appeal process can be lengthy. Moreover, this is inconsistent with the EU legislation which does not specifically provide such a right for food business operators. If UK rules remain as they are, they will be out of step with EU law and the UK will face the risk of infraction proceedings for breach of EU Treaty obligations.

The draft Scottish Statutory Instrument (SSI) proposes to revise regulation 12(5) (and regulation 12(6) & 12(7), dependant provisions) and thereby remove the food business operator’s right to continue to operate pending the determination of the appeal.

Key proposal:

• Remove the right of food business operators to continue to operate, when the outcome of an appeal against the refusal or withdrawal of approval is pending.

Stakeholders were informed of the proposed change in policy at the Current and Future Meat Controls (CFMC) Working Group held on 25 June 2010.

Stakeholders (including representatives from meat industry) were informed about the proposed change in policy at the Chief Executive’s Industry Stakeholder Forum on 16 June 2010.

The proposed change in policy was discussed at the July 2010 FSA open Board meeting, a link to the discussion paper is available at the link below.

The Food Standards Agency is consulting all food business operators (FBOs) of meat establishments under veterinary control who may be affected by this proposal, and all local authorities (since some local authorities may be involved in refusing, or withdrawing, the approval of establishments handling products of animal origin). No further consultations or meetings are proposed. A summary of responses to the consultation will be published on the Agency’s website. Consultations on the proposed change will be run concurrently in England, Scotland, Wales and Northern Ireland.

Questions asked in this consultation:

1. Do you agree that removal of the right of food business operators to continue to operate when the outcome of an appeal against the refusal or withdrawal of approval is pending is appropriate?
2. Do you agree with the assumptions, costs and benefits outlined in draft Impact Assessment at Annex C? If you disagree with the estimated figures, please provide evidence.

We would particularly welcome the views of FBOs of meat establishments subject to veterinary control and their representative bodies, as they may be affected by this proposal. We would welcome answers to the questions posed above together with any evidence that can be submitted in support of comments that are made in response to this consultation. Please submit comments by email (or by post if it is more convenient). if you need further information please telephone on 01224 285161.

Regulation (EC) No 882/2004 of the European Parliament and of the Council on official controls performed to ensure the verification of compliance with feed and food law, animal health and welfare rules. Official Journal L191, 28.5.2004, 1-52. The text of the EU Regulation may be downloaded from the European Commission’s website – see link below.

Regulation (EC) No 853/2004 of the European Parliament and of the Council laying down specific hygiene rules for food of animal origin. Official Journal 139, 30.4.2004, 55-205. The text of the EU Regulation may be downloaded from the European Commission’s website – see link below.

Responses are required by close 10 December 2010. Please state, in your response, whether you are responding as a private individual or on behalf of an organisation/company (including details of any stakeholders your organisation represents).

This consultation has been prepared in accordance with the HM Government Code of Practice on Consultation, which states that a consultation must follow better regulation best practice, including carrying out an Impact Assessment (Regulatory Impact Assessment in Scotland). The assessment is included in the consultation documents.

We are interested in what you thought of this consultation and would therefore welcome your general feedback on both the consultation package and overall consultation process. If you would like to assist us to improve the quality of future consultations, please feel free to share your thoughts with us by using the consultation feedback questionnaire.

In accordance with the FSA principle of openness we shall keep a copy of the completed consultation and responses, to be made available to the public on request. The FSA will publish a summary of responses, which may include personal data, such as your full name. Disclosure of any other personal data would be made only upon request for the full consultation responses. If you do not want this information to be released, please complete and return the Publication of Personal Data Form. Return of this form does not mean that we will treat your response to the consultation as confidential, just your personal data.

Within three months of a consultation ending we aim to publish a summary of responses received and provide a link to it from this page.

If, after three months, the summary is still not showing, please contact the person who was responsible for the original consultation. Alternatively, you can contact the FSA Consultation Co-ordinator by email: consultationcoordinator@foodstandards.gsi.gov.uk