Enforcement of the European Parliament and Council Regulation on Food Flavourings (Scotland)

In July 2006 the European Commission published proposals for European Parliament and Council Regulations aimed at clarifying and updating the existing legislation on food additives and food flavourings and introducing new EU-wide rules on food enzymes, together with a proposal for common authorisation procedures for all three.

As European Parliament and Council Regulations, they are directly applicable in the UK; however Scottish Statutory Instruments (SSIs) are required to enforce them and to identify penalties for failure to comply. Enforcement SSIs are now in place for additives and enzymes (which applied from 20 January 2010). However, as the Regulation on flavourings applies 12 months later (20 January 2011), we are consulting on the enforcement provisions for this Regulation now.

The purpose of this written consultation is to seek stakeholders’ views on:

• The enforcement in Scotland of the EU Regulation described in this document (a draft enforcement SSI for Scotland can be found at Annexe D)
• The accompanying Business Regulatory Impact Assessment at Annexe C – this updates the Partial Regulatory Impact Assessment on the original Commission flavourings proposal.

Separate, corresponding, SIs will be made in England, Wales and Northern Ireland and will be consulted on separately.

Provisions
The enforcement provisions of EU Regulation 1334/2008 come into effect from 20 January 2011. However, some provisions of this EU Regulation applied from i20 January 2009. Amendments to Annexes II to V are permitted under Article 22. However, foods that are lawfully placed on the market prior to 20 January 2011 that do not comply with Regulation 1334/2008 can be marketed until their date of minimum durability or use-by-date in accordance with Article 30.

Offences
Regulation 3(1) of the Flavourings in Food (Scotland) Regulations 2010 makes it an offence to fail to comply with the specified provisions of the new EU Regulation. Regulation 3(2) sets out the provisions in Regulation 1334/2008 which are enforced by making it an offence to fail to comply with them. Regulation 3(2)(h) in particular is an enforcement measure on which we seek the views of consultees; it enforces Article 19(2) and (3) respectively of Regulation 1334/2008. Article 19(2) relates to an approved flavouring which is subsequently modified via different production methods or by using different starting materials, and will therefore require another evaluation. Article 19(3) requires food business operators to inform the Commission immediately of any new information that might affect the safety assessment of an approved flavouring.

Enforcement measures have not been applied to Article 19(1) however, where the Commission requests food business operators to supply them with information regarding the categories and levels for flavourings used in foods. In the event that a food business operator declines to provide the Commission with the requested information, it may result in the suspension of the use of the flavouring in question because an appropriate review cannot be conducted – which we believe would in practice render Article 19(1) a self-enforcing measure. We welcome your views as to whether enforcement measures are/are not required for Article 19(1).

Consequential and other amendments
Article 29 of EU Regulation 1334/2008 amends the Food Labelling Directive, (Directive 2000/13/EC), and as a consequence, changes are also required to the UK Food Labelling Regulations.

Two options are being considered:

• do nothing
• enforce the European Parliament and Council Regulation on Flavourings

Recommended Option:

• enforce the European Parliament and Council Regulation on Flavourings

FSA Scotland
In September 2006, FSA in Scotland issued a 12-week consultation notifying stakeholders of the proposed EU Regulations on food additives, food flavourings and food enzymes. Approximately 235 stakeholders were consulted on these proposals which can be found via the link below.

One response was received from a Scottish local authority who welcomed the Regulations as providing clearer definitions and supported the use of the term ‘natural’ flavouring. This comment has been taken into consideration and was fed in to the UK Government’s negotiating position. Separate consultations also took place in England, Wales and Northern Ireland. For further details see the Partial Business and Regulatory Impact Assessment in Annexe C.

Responses helped inform the UK negotiating position and further contact was maintained with a number of industry and consumer groups during Council negotiations. The UK supports the new Regulation on flavourings and this new consultation seeks your views on provisions for its enforcement in Scotland. After this consultation closes the FSA will reflect on your responses before deciding how to proceed.

Questions asked in this consultation:
For the Business Regulatory Impact Assessment at Annexe C, we would particularly welcome contributions, with supporting evidence on:

1. the costs and benefits of the measures that need to be undertaken in order to comply with the monitoring requirements for BAPs.
2. the familiarisation costs, enforcement costs and costs of relabelling.

We also welcome views on the assessment given in the Scottish Firms Impact Test in paragraph 10 of the Business Regulatory Impact Assessment in Annex C and on the draft enforcement SSI at Annexe D of this consultation.

For the draft SSI Regulation at Annexe D, we would welcome your views on:

1. should enforcement measures under Regulation 3(2)(h) extend to Article 19(1) of EU Regulation 1334/2008?
2. whether you agree that Article 19(1) is a self-enforcing measure?

• European Parliament and Council Regulation on Flavourings

Responses are required by close 14 October 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.

Consultation feedback questionnaire (Word)

Consultation feedback questionnaire (pdf)

In accordance with the FSA principle of openness our Information Centre at Aviation House will hold a copy of the completed consultation. 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.

Data protection form (Word)

Data protection form (pdf)

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