STATUTORY INSTRUMENT.

S.I. No. 181 of 2004 .

EUROPEAN COMMUNITIES (EMERGENCY MEASURES REGARDING CHILLI AND CHILLI PRODUCTS) REGULATIONS 2004.

S.I. No. 181 of 2004 .

EUROPEAN COMMUNITIES (EMERGENCY MEASURES REGARDING CHILLI AND CHILLI PRODUCTS) REGULATIONS 2004.

I, MICHEÁL MARTIN, Minister for Health and Children, in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 ( No. 27 of 1972 ), having regard to Regulation (EC) No. 178/2002¹ of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety, and in particular Article 54 thereof, and for the purpose of giving effect to Commission Decision 2004/92/EC² of 21 January 2004 on emergency measures regarding chilli and chilli products, hereby make the following Regulations:

PART 1

Preliminary

1. These Regulations may be cited as the European Communities (Emergency Measures regarding Chilli and Chilli Products) Regulations 2004.

2. (1)  In these Regulations:

“Act of 1998” means the Food Safety Authority of Ireland Act 1998 (No. 29 of 1998);

“approved examiner” in these Regulations means--

(a)  the Public Analyst,

(b)  a Deputy Public Analyst, or

(c)  an Executive Analytical Chemist,

located at an official laboratory;

“authorised officer” means an authorised officer appointed under section 49 of the Act of 1998;

“Authority” means the Food Safety Authority of Ireland, established under section 9 of the Act of 1998;

“chilli and/or chilli products” means:

(a)  fruits of the genus Capsicum, dried and crushed or ground within CN Code 0904 20 90, in whatever form, intended for human consumption, and/or

(b)  curry powder within CN code 0910 50, in whatever form, intended for human consumption;

“Decision” means Commission Decision 2004/92/EC² of 21 January 2004, on emergency measures regarding chilli and chilli products;

“foodstuff” means any substance or product, whether processed, partially processed or unprocessed, intended to be, or reasonably expected to be ingested by humans. ‘Foodstuff’ includes drink, chewing gum and any substance, including water, intentionally incorporated into the food during its manufacture, preparation or treatment. It includes water after the point of compliance as defined in Article 6 of Directive 98/83/EC³ and without prejudice to the requirements of Directives 80/778/EEC⁴ and 98/83/EC⁵ ;

“foodstuff” shall not include--

(a)  feed,

(b)  live animals unless they are prepared for placing on the market for human consumption,

(c)  plants prior to harvesting,

(d)  medicinal products within the meaning of Council Directives 65/65/EEC⁶ and 92/73/EEC⁷ ,

(e)  cosmetics within the meaning of Council Directive 76/768/EEC⁸ ,

(f)  tobacco and tobacco products within the meaning of Council Directive 89/622/EEC⁹ ,

(g)  narcotic or psychotropic substances within the meaning of the United Nations Single Convention on Narcotic Drugs, 1961, and the United Nations Convention on Psychotropic Substances, 1971, or

(h)  residues and contaminants;

“import” means importation from a country other than a Member State;

“Members State” means a Member State of the European Community and shall be construed as including reference to those States that are Contracting Parties to the EEA Agreement;

“official agency” means an official agency carrying out functions under a service contract and acting on behalf of the Authority pursuant to section 48 of the Act of 1998;

“official laboratory” in these Regulations means--

(a)  the Public Analyst's Laboratory, Cork,

(b)  the Public Analyst's Laboratory, Dublin, or

(c)  the Public Analyst's Laboratory, Galway;

“place on the market” means--

(a)  sell,

(b)  offer or expose for sale,

(c)  invite the making by a person of an offer to purchase,

(d)  distribute free of charge, or

(e)  supply for any of those purposes (whether or not for profit)

and cognate words shall be construed accordingly;

“service contract” means a contract entered into between the Authority and an official agency pursuant to section 48 of the Act of 1998.

(2) A word or expression which is used in these Regulations and which is also used in the Decision has, unless the context otherwise requires, the same meaning in these Regulations as it has in the Decision.

(3) (a)  A reference in these Regulations to a Regulation is to a Regulation of these Regulations, unless it is indicated that reference to some other Regulations is intended.

(b)  A reference in these Regulations to a paragraph or subparagraph is to the paragraph or subparagraph of the provision in which the reference occurs, unless it is indicated that reference to some other provision is intended.

(c)  A reference in these Regulations to a Schedule is to a Schedule to these Regulations, unless it is indicated that reference to some other Regulations is intended.

PART 2

General Provisions

3. (1)  These Regulations concern chilli and chilli products intended for human consumption.

(2)  Persons importing or placing on the market chilli and/or chilli products shall comply with these Regulations.

4. (1)  A person shall not import chilli and/or chilli products unless the consignment is accompanied by an analytical report demonstrating that the chilli and/or chilli products do not contain any of the following chemical substances:

(a)  Sudan I (CAS number 842-07-9),

(b)  Sudan II (CAS number 3118-97-6),

(c)  Sudan III (CAS number 85-86-9),

(d)  Scarlet Red or Sudan IV (CAS number 85-83-6).

(2)  If a consignment is split, a copy of the analytical report provided for in paragraph (1), certified by the Authority or by an official agency shall accompany each part of the split consignment.

(3)  In the absence of an analytical report referred to at paragraph (1), the importer established in the Community shall have the product tested to demonstrate that it does not contain any of the chemical substances referred to in paragraph (1).

(4)  Where a product is tested in accordance with paragraph (3), it shall be detained under official supervision pending availability of the analytical report.

(5)  The analytical report referred to in this Regulation shall specify--

(a)  a description of the product,

(b)  the consignment number,

(c)  the name of the laboratory which has tested the product,

(d)  the name and title of the examiner who has tested the product,

(e)  the type of analytical test used,

(f)  the date of such test, and

(g)  the result of such test as regards the presence or absence of any of the chemical substances referred to in paragraph (1).

5.  (1)  Every consignment of chilli and/or chilli products presented for importation shall be checked by the Authority or by an official agency to ensure that it is accompanied by a report as provided for in Regulation 4(1).

(2)  The Authority shall ensure that random sampling and analysis is carried out on--

(a)  chilli and/or chilli products presented for importation, and

(b)  chilli and/or chilli products already on the market,

in order to verify the absence of the chemical substances referred to in Regulation 4(1).

(3)  Consignments may only be imported into the State through one of the Irish points of entry listed in Schedule 1.

(4)  Any consignment subjected to official sampling and analysis may be detained for a maximum period of 15 working days before release onto the market.

6.  Any chilli and/or chilli products found to contain any of the chemical substances referred to in Regulation 4(1) shall be destroyed--

(1)  by the importer or the food business operator concerned under the supervision of the Authority or an official agency, or

(2)  by the Authority or an official agency.

7.  Any cost resulting from analysis, storage or eventual destruction pursuant to paragraphs (1), (3) or (4) of Regulation 4, or Regulation 6, shall be borne by the importer or the food business operator concerned.

PART 3

Enforcement

8.  Control of the foodstuffs affected by these Regulations and the enforcement of these Regulations shall be carried out in accordance with the provisions of these Regulations.

9.  These Regulations shall be deemed to be food legislation for the purposes of the Act of 1998.

10.  These Regulations shall be enforced by the Authority or by an official agency pursuant to a service contract with the Authority and without prejudice to Regulation 8 the enforcement provisions contained in the Act of 1998 shall apply for the purposes of ensuring compliance with these Regulations.

11.  (1)  A person who fails to comply with these Regulations shall be guilty of an offence.

(2)  Paragraph (1) shall not apply to an authorised officer acting in the course of his or her duties pursuant to these Regulations.

12.  Where an offence under these Regulations is committed by a body corporate or by a person acting on behalf of a body corporate and is proved to have been so committed with the consent, connivance or approval of, or to be attributed to any neglect or default on the part of, any director, manager, secretary or any other officer of such body, or a person who was purporting to act in any such capacity, such person shall also be guilty of an offence and shall be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.

13.  (1)  An authorised officer may, for the purposes of these Regulations, purchase or take without payment a sample of chilli and/or chilli products.

(2)  An authorised officer may, for the purpose of taking a sample of chilli and/or chilli products, open any receptacle.

(3)  Where an authorised officer purchases or takes without payment, with the intention of having it analysed, a sample of chilli and/or chilli products, he or she may, by notice in writing to the seller, owner or person in apparent charge or control of such chilli and/or chilli products (as the case may be) prohibit the removal of the chilli and/or chilli products except to any place which may be specified in the notice, during such period as may be specified in the notice, but not exceeding 15 days from the date of the detention of the sample.

(4)  Where an authorised officer purchases or takes without payment a sample of chilli and/or chilli products with the intention of having it analysed, he or she shall after purchasing or taking the sample forthwith notify the seller, owner or person in apparent charge or control of the chilli and/or chilli products (as the case may be) of his or her intention of having the sample analysed.

14.  (1)  Where a sample of chilli and/or chilli products is taken pursuant to these Regulations and where the division of the sample is reasonably practicable, the authorised officer concerned shall divide the sample into not more than three approximately equal parts each of which he or she shall mark in such a way as to identify it as a part of the sample taken by the officer. The authorised officer shall mark, seal and fasten each part in such a manner as its nature will permit, forward one part to the approved examiner in an official laboratory for analysis, give or send one part to the seller, owner or person in apparent charge or control of the chilli and/or chilli products (as the case may be) and retain the third part.

(2)  Where an authorised officer takes a sample consisting of chilli and/or chilli products contained in unopened containers and its division into parts--

(a)  is not reasonably practicable, or

(b)  might affect the composition or impede the proper analysis of the sample,

the provision of paragraph (1) of this Regulaton as regards the division of samples into parts shall be deemed to be complied with if the authorised officer divides the containers into three lots and deals with each lot as if it were a sample as specified under paragraph (1) of this Regulation.

(3)  In proceedings for an offence under these Regulations, the result of any test, examination or analysis of, or report on a sample of chilli and/or chilli products taken pursuant to these Regulations shall not be adduced unless before the proceedings were instituted the sample was divided as specified in paragraphs (1) and (2) of this Regulation. The part, package or container retained by the authorised officer shall be produced at the hearing.

15.  (1)  The approved examiner of a person under his or her direction shall analyse as soon as possible any sample of chilli and/or chilli products submitted to him or her in pursuance of these Regulations and the approved examiner shall certify to the person who submitted the sample to him or her the result of such analysis. The form of certificate set out in Schedule 2 to these Regulations, or a certificate in like form, shall be used.

(2)  An official certificate given in accordance with paragraph (1) of this Regulation shall be prima facia evidence of the matters contained therein until the contrary is proved.

16.  Where a sample of chili and/or chilli products is taken by an authorised officer in pursuance of these Regulations for analysis by an approved examiner, and where the seller, owner or person in apparent charge or control of the chilli and/or chilli products (as the case may be) requests in writing the results of such analysis the request shall be made to--

(a)  the Authority, where the officer was appointed by the Authority, or

(b)  the official agency, where the officer was appointed by an official agency

and the Authority, or the official agency (as the case may be) shall comply with such request.

17.  (1)  Where a consignment of chilli and/or chilli products has been subjected to official sampling and analysis and has been found to contain any of the chemical substances referred to in Regulation 4(1), the Authority or an official agency acting on behalf of the Authority may seize, remove and detain the consignment for the purposes of destruction, if the consignment of chilli and/or chilli products has not been destroyed by the importer or by the food business operator concerned pursuant to Regulation 6(a).

(2)  Where a person, not being an importer established in the Community, seeks to import chilli and/or chilli products and the consignment is not accompanied by an analytical report as referred to in Regulation 4(1), such person shall be requested to remove the consignment from the jurisdiction.

(3)  In the event of a failure or refusal to comply with a request pursuant to paragraph (2), the authorised officer may seize, remove and detain the consignment, and he or she may apply to the District Court for an order that the consignment be destroyed, and a judge of the District Court may grant such an order if he or she is satisfied--

(a)  that the consignment was not accompanied by an analytical report as referred to in Regulation 4(1), and

(b)  that the person seeking to import the consignment was not willing to remove the consignment from the jurisdiction on being requested to do so by the authorised officer.

18.  (1)  Any person who forges, or utters knowing it to be forged, an analytical report or other document purporting to be issued, granted or given under these Regulations, or required for the purposes of these Regulations, (hereafter in this Regulation referred to as “a forged document”), is guilty of an offence.

(2)  Any person who alters with intent to defraud or deceive, or who utters knowing it to be so altered, an analytical report or other document issued, granted or given under these Regulations, or required for the purposes of these Regulations (hereafter in this Regulation referred to as “an altered document”), is guilty of an offence.

(3)  Any person who, without lawful authority, has in his or her possession a forged document or an altered document is guilty of an offence.

(4)  Any person who, with intent to defraud or deceive--

(a)  tampers with anything so as to procure that any sample taken pursuant to these Regulations does not correctly represent the substance sampled, or

(b)  tampers or interferes with any sample taken under these Regulations

is guilty of an offence.

19.  (1)  For the purposes of these Regulations, every contravention of an Regulation shall be deemed a separate contravention and every contravention of a paragraph or a subparagraph shall also be deemed to be a separate contravention and shall carry the same penalty as for a single contravention of any Regulation of these Regulations.

(2)  A person who is guilty of an offence under these Regulations shall be liable on summary conviction to a fine not exceeding €3,000 or at the discretion of the court to imprisonment for a term not exceeding 12 months or both.

20.  An offence under these Regulations may be prosecuted by--

(1)  the Food Safety Authority of Ireland, or

(2)  an official agency.

PART 4

Revocations

21.  (1)  The European Communities (Emergency Measures regarding Hot Chilli and Hot Chilli Products) Regulations 2003 ( S.I. No. 471 of 2003 ) are revoked.

(2)  References in any other instrument to the Regulations revoked under paragraph (1) shall be construed as references to these Regulations, as appropriate.

SCHEDULE 1

List of points of entry through which Chilli and/or Chilli Products originating from third countries may be imported into Ireland

Dublin Airport

Dublin Port

Shannon Airport

SCHEDULE 2

Form of official certificate to be given by an approved examiner to an authorised officer.

European Communities (Emergency Measures regarding Chilli and Chilli Products) Regulations 2004.

Certificate of Analysis

To⁽¹⁾............................................................ ............................................................ ...............

I, the undersigned⁽²⁾ ............................................................ .................................................... being an Approved Examiner for the purpose of the above Regulations

certify that on the .................day of ..............20.......

a sample marked ⁽³⁾ ................

Date .......................

Number .......................

Weight or Measure .......................

was submitted to me by you and I certify that the sample was prepared and analysed/examined by me or under my direction⁽⁴⁾

and as a result I am of the opinion that⁽⁵⁾

Observations:⁽⁶⁾

I further certify that the sample has undergone no change which would affect my opinion/observations expressed above.

Certified by me this ........... day of .............20..........

at⁽⁷⁾..................

Name in BLOCK LETTERS ............................................................ ......................................

Status ............................................................ ............................................................ .............

Signature ............................................................ ............................................................ .........

_________________

Official Stamp

Certificate of Analysis: Notes

(1)  Insert the name and address of the person submitting the sample for analysis.

(2)  Insert description (e.g. Executive Analytical Chemist in the Public Analyst's Laboratory).

(3)  Insert particulars of marking (e.g. name, date etc.) and the weight or measure. (this may be left unanswered if the sample cannot be conveniently weighted or measured or the weight or measurement is not material to the result of analysis).

(4)  Indicate whether the approved examiner carried out the analysis himself or herself or whether it was carried out by another under the direction of the approved examiner.

(5)  Here the approved examiner should specify the result of the analysis having regard to the provisions of the relevant legislation.

(6)  Here the approved examiner may insert any other observations as he or she may consider relevant.

(7)  Insert the name and address of the laboratory carrying out the analysis/examination.

EXPLANATORY NOTE.

(This note is not part of the Instrument and does not purport to be a legal interpretation.)

These Regulations give effect to Commission Decision 2004/92/EC² of 21 January 2004 on emergency measures regarding chilli and chilli products. These Regulations revoke and replace S.I. 471 of 2003 on emergency measures regarding hot chilli and hot chilli products.

These Regulations may be cited as the European Communities (Emergency Measures regarding Chilli and Chilli Products) Regulations 2004 and they come into effect on the date they were signed.

¹OJ L 31, 1.2.2002, p. 1.

²OJ L 27, 30.1.2004, p. 52.

²OJ L 27, 30.1.2004, p. 52.

³OJ L 330, 5.12.1998, p. 32.

⁴OJ L 229, 30.8.1980, p. 11.

⁵OJ L 330, 5.12.1998, p. 32.

⁶OJ 22, 9.2.1965, p. 369. Directive as last amended by Directive 93/39/EEC (OJ L 214, 24.8.1993, p. 22).

⁷OJ L 297, 13.10.1992, p. 8.

⁸OJ L 262, 27.9.1976, p. 169. Directive as last amended by Commission Directive 2000/41/EC. (OJ L 145, 20.6.2000, p. 25).

⁹ OJ L 359, 8.12.1989, p. 1. Directive as last amended by Directive 92/41/EEC. (OJ L 158 11.6.1992, p. 30).