The Food Hygiene (Scotland) Regulations 2006

Made: 9th January 2006

Laid before the Scottish Parliament: 10th January 2006

Coming into force: 11th January 2006

The Scottish Ministers, in exercise of the powers conferred by section 2(2) of the European Communities Act 1972 and of all other powers enabling them in that behalf, after consultation as required by Article 9 of Regulation (EC) No. 178/2002 of the European Parliament and of the Council 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 , hereby make the following Regulations:

PART 1 — PRELIMINARY

Citation, commencement and extent

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• (1) These Regulations may be cited as the Food Hygiene (Scotland) Regulations 2006 and shall come into force on 11th January 2006.

• (2) These Regulations extend to Scotland only.

Interpretation

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• (1) In these Regulations–

• “the Act” means the Food Safety Act 1990 ;

• “the Agency” means the Food Standards Scotland;

• “authorised officer”, in relation to an enforcement authority, means any person appointed by that authority under regulation 5(6);

• “the Community Regulations” means Regulation 852/2004, Regulation 853/2004, Regulation 2073/2005, Regulation 2015/1375, Regulation 2019/624, Regulation 2017/625, Regulation 2019/625, Regulation 2019/627 and Regulation 2019/628,

• “Directive 2004/41”, “Regulation 178/2002”, “Regulation 852/2004”, “Regulation 853/2004”, “Regulation 1688/2005 “Regulation 2073/2005”, “Regulation 2074/2005”, “Regulation 931/2011”, “Regulation 1169/2011”, “Regulation 28/2012”, “Regulation 208/2013”, “Regulation 210/2013”, “Regulation 579/2014”, “Regulation 2015/1375”, “Regulation 2017/185”, “Regulation 2017/625”, “Regulation 2017/2158”, “Regulation 2019/624”, “Regulation 2019/625”, “Regulation 2019/626”, “Regulation 2019/627”, “Regulation 2019/628”, have the meanings respectively given to them in schedule 1.

• “enforcement authority” means the authority which, by virtue of regulation 5, is responsible for enforcing and executing the Hygiene Regulations;

• “food authority” means a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 ;

• “the Hygiene Regulations” means these Regulations and the Community Regulations;

• “premises” includes any establishment, any place, vehicle, stall or moveable structure and any ship or aircraft; and

• “specified Community provision” means any provision of the Community Regulations that is specified in column 1 of Schedule 2 and the subject-matter of which is described in column 2 of that Schedule.

• (2) Subject to paragraph (3), any expression other than one defined in paragraph (1) that is used both in these Regulations and in the Act has the meaning it bears in the Act.

• (3) Unless the context otherwise requires, any expression used both in these Regulations and in Regulation 178/2002 or the Community Regulations has the meaning it bears in Regulation 178/2002 or the Community Regulations, as the case may be.

• (4) Where, apart from this paragraph, any period of less than 7 days which is specified in these Regulations would include any day which is–

• (a) a Saturday, a Sunday, Christmas Day or Good Friday; or

• (b) a day which is a bank holiday in Scotland under the Banking and Financial Dealings Act 1971 ,

that day shall be excluded from the period.

• (5) In these Regulations, any reference to an EU instrument defined in Schedule 1 ... is a reference to that instrument as any Annex to it is amended from time to time.

Presumptions that food is intended for human consumption

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• (1) The following paragraphs apply for the purposes of these Regulations.

• (2) Any food commonly used for human consumption shall, if placed on the market or offered, exposed or kept for placing on the market, be presumed, until the contrary is proved, to have been placed on the market or, as the case may be, to have been or to be intended for placing on the market for human consumption.

• (3) The following, namely:–

• (a) any food commonly used for human consumption which is found on premises used for the preparation, storage, or placing on the market of that food; and

• (b) any article or substance commonly used in the manufacture of food for human consumption which is found on premises used for the preparation, storage or placing on the market of that food,

shall be presumed, until the contrary is proved, to be intended for placing on the market, or for manufacturing food for placing on the market, for human consumption.

• (4) Any article or substance capable of being used in the composition or preparation of any food commonly used for human consumption which is found on premises on which that food is prepared shall, until the contrary is proved, be presumed to be intended for such use.

Competent authority for the purposes of the Community Regulations

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• (1) The competent authority for the purposes of the Community Regulations is the Agency.

• (2) The Agency may, as respects any of its functions as competent authority under paragraph (1) which may be delegated in terms of the Community Regulations–

• (a) delegate any of those functions to any person or persons; or

• (b) arrange for any of those functions to be carried out by any person or persons.

• (3) Before delegating or making an arrangement in accordance with paragraph (2), the Agency shall consult the person or persons to whom any delegation, or with whom any arrangement, is to be made and shall publish a notice containing the details and operative date of the delegation or arrangement in the Edinburgh Gazette at least 7 days before that operative date.

• (4) Where, in accordance with paragraph (2), the Agency has–

• (a) delegated any of its functions; or

• (b) made an arrangement in relation to any of its functions,

the Agency may, subject to paragraph (5),–

• (c) withdraw that delegation; or

• (d) vary, suspend or cancel that arrangement,

in whole or in part.

• (5) Paragraph (3) shall apply to any withdrawal of a delegation or variation, suspension or cancellation of an arrangement made by the Agency under paragraph (4) as it applies to a delegation or arrangement made by it in accordance with paragraph (2).

• (6) The requirement to consult under paragraph (3) may be fulfilled by consultation begun under regulation 4(3) of the Food Hygiene (Scotland) Regulations 2005

Enforcement

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• (1) In respect of any food business operator to whose operations Regulation 852/2004 applies but Regulation 853/2004 does not apply–

• (a) the Agency or the food authority in whose area the food business operator carries out its operations may enforce and execute the Hygiene Regulations in so far as the operator concerned is carrying out primary production and those associated operations listed in paragraph 1 of Part AI of Annex I to Regulation 852/2004 other than the associated operations described in sub-paragraphs (a) and (c) of that paragraph to the extent that they concern wild game; and

• (b) subject to paragraph (5), the food authority in whose area the food business operator carries out its operations shall enforce and execute the Hygiene Regulations in so far as the operator concerned is carrying out operations which are not enforced and executed by the Agency or the food authority as provided for in sub paragraph (a).

• (2) In respect of any food business operator to whose operations both Regulation 852/2004 and Regulation 853/2004 apply–

• (a) the Agency shall enforce and execute the Hygiene Regulations in so far as the operator concerned is carrying out operations in relation to–

• (i) a slaughterhouse;

• (ii) a game handling establishment; or

• (iii) a cutting plant; and

• (b) subject to paragraph (5), the food authority in whose area the food business operator carries out its operations shall enforce and execute the Hygiene Regulations in so far as the operator concerned is carrying out operations in relation to any establishment or activity that is not specified in sub paragraph (a).

• (3) Subject to paragraph (4) the food authority in whose area operations are carried out shall execute and enforce–

• (a) the Hygiene Regulations in relation to collection centres and tanneries supplying raw material for the production of gelatine intended for human consumption pursuant to paragraph 5 of Chapter I of Section XIV of Annex III to Regulation 853/2004;

• (b) the Hygiene Regulations in relation to collection centres and tanneries supplying raw material for the production of collagen intended for human consumption pursuant to paragraph 5 of, Chapter I of Section XV of Annex III to Regulation 853/2004; and

• (c) these Regulations in relation to the matters regulated by Schedules 3 to 6.

• (4) The Agency may, if it considers it appropriate to do so, execute and enforce–

• (a) the Hygiene Regulations in relation to any of the establishments, activities, operations or matters referred to in paragraphs (1)(b), (2)(b) and (3)(a) and (b); and

• (b) these Regulations in relation to the matters regulated by Schedules 3 to 6.

• (5) Before exercising its option to enforce and execute the Hygiene Regulations or these Regulations under paragraph (4), the Agency shall consult the enforcement authority which would otherwise have a duty to carry out such enforcement and execution.

• (6) The Agency and any food authority may appoint as authorised officers such persons (whether or not officers of the Agency or the authority) as they consider necessary for the purpose of enforcing the Hygiene Regulations.

• (7) In this regulation—

• “cutting plant” means any establishment which is used for boning and/or cutting up fresh meat for placing on the market and which is approved or conditionally approved under Article 148 of Regulation 2017/625,

• “game-handling establishment” means any establishment in which game and game meat obtained after hunting are prepared for placing on the market and which is approved or conditionally approved under Article 148 of Regulation 2017/625, and

• “slaughterhouse” means any establishment used for slaughtering and dressing animals, the meat of which is intended for human consumption and which is approved or conditionally approved under Article 148 of Regulation 2017/625.

PART 2 — MAIN PROVISIONS

Hygiene improvement notices

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• (1) If an authorised officer of an enforcement authority has reasonable grounds for believing that a food business operator is failing to comply with the Hygiene Regulations, that officer may by a notice served on the food business operator (in these Regulations referred to as a “hygiene improvement notice”)–

• (a) state the officer's grounds for believing that the food business operator is failing to comply with the Hygiene Regulations;

• (b) specify the matters which constitute the food business operator's failure to comply;

• (c) specify the measures which, in the officer's opinion, the food business operator must take in order to secure compliance; and

• (d) require the food business operator to take those measures, or measures which are at least equivalent to them, within such period (not being less than 14 days) as may be specified in the notice.

• (2) Any person who fails to comply with a hygiene improvement notice is guilty of an offence.

Hygiene prohibition orders

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• (1) If–

• (a) a food business operator is convicted of an offence under these Regulations; and

• (b) the court by or before which the food business operator is so convicted is satisfied that the health risk condition is fulfilled with respect to the food business concerned,

the court shall by an order impose the appropriate prohibition.

• (2) The health risk condition is fulfilled with respect to any food business if any of the following involves risk of injury to health (including any impairment, whether permanent or temporary), namely:–

• (a) the use for the purposes of the business of any process or treatment;

• (b) the construction of any premises used for the purposes of the business, or the use for those purposes of any equipment; and

• (c) the state or condition of any premises or equipment used for the purposes of the business.

• (3) The appropriate prohibition is–

• (a) in a case falling within paragraph (2)(a), a prohibition on the use of the process or treatment for the purposes of the business;

• (b) in a case falling within paragraph (2)(b), a prohibition on the use of the premises or equipment for the purposes of the business or any other food business of the same class or description; and

• (c) in a case falling within paragraph (2)(c), a prohibition on the use of the premises or equipment for the purposes of any food business.

• (4) If–

• (a) a food business operator is convicted of an offence under these Regulations; and

• (b) the court by or before which the food business operator is so convicted thinks it proper to do so in all the circumstances of the case,

the court may, by an order, impose a prohibition on the food business operator participating in the management of any food business, or any food business of a class or description specified in the order.

• (5) As soon as practicable after the making of an order under paragraph (1) or (4) (in these Regulations referred to as a “hygiene prohibition order”), the enforcement authority shall–

• (a) serve a copy of the order on the relevant food business operator; and

• (b) in the case of an order made under paragraph (1), affix a copy of the order in a conspicuous position on such premises used for the purposes of the food business as they consider appropriate,

and any person who knowingly contravenes a hygiene prohibition order is guilty of an offence.

• (6) A hygiene prohibition order shall cease to have effect–

• (a) in the case of an order made under paragraph (1), on the issue by the enforcement authority of a certificate to the effect that it is satisfied that the food business operator has taken sufficient measures to secure that the health risk condition is no longer fulfilled with respect to the food business; and

• (b) in the case of an order made under paragraph (4), on the giving by the court of a direction to that effect.

• (7) The enforcement authority shall issue a certificate under paragraph (6)(a) within 3 days of it being satisfied as mentioned in that paragraph; and on an application by the food business operator for such a certificate, the authority shall–

• (a) determine, as soon as is reasonably practicable and in any event within 14 days, whether or not it is so satisfied; and

• (b) if it determines that it is not so satisfied, give notice to the food business operator of the reasons for that determination.

• (8) The court shall give a direction under paragraph (6)(b) if, on an application by the food business operator, the court thinks it proper to do so having regard to all the circumstances of the case, including in particular the conduct of the food business operator since the making of the order; but no such application shall be entertained if it is made–

• (a) within 6 months of the making of the hygiene prohibition order; or

• (b) within 3 months of the making by the food business operator of a previous application for such a direction.

• (9) Where the sheriff makes an order under regulation 8(2) with respect to any food business, paragraph (1) of this regulation shall apply as if the food business operator had been convicted by the sheriff of an offence under these Regulations.

• (10) Where the commission of an offence by a food business operator leads to the conviction of another person pursuant to regulation 10, paragraph (4) of this regulation shall apply in relation to that other person as it applies in relation to the food business operator and any reference in paragraph (5) or (8) to the food business operator shall be construed accordingly.

Hygiene emergency prohibition notices and orders

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• (1) If an authorised officer of an enforcement authority is satisfied that the health risk condition is fulfilled with respect to any food business, the officer may, by a notice served on the relevant food business operator (in these Regulations referred to as a “hygiene emergency prohibition notice”), impose the appropriate prohibition.

• (2) If the sheriff is satisfied, on the application of such an officer, that the health risk condition is fulfilled with respect to any food business, the sheriff shall, by an order (in these Regulations referred to as a “hygiene emergency prohibition order”), impose the appropriate prohibition.

• (3) Such an officer shall not apply for a hygiene emergency prohibition order unless, at least 1 day before the date of the application, the officer has served notice on the relevant food business operator of the officer's intention to apply for the order.

• (4) Paragraphs (2) and (3) of regulation 7 shall apply for the purposes of this regulation as they apply for the purposes of that regulation, but as if the reference in paragraph (2) to risk of injury to health were a reference to imminent risk of injury.

• (5) As soon as practicable after the service of a hygiene emergency prohibition notice, an authorised officer of an enforcement authority shall affix a copy of the notice in a conspicuous position on such premises used for the purposes of the food business as the officer considers appropriate; and any person who knowingly contravenes a hygiene emergency prohibition notice is guilty of an offence.