The Natural Mineral Water, Spring Water and Bottled Drinking Water (Scotland) Amendment Regulations 2010

Made: 4th March 2010

Laid before the Scottish Parliament: 5th March 2010

Coming into force: 9th April 2010

The Scottish Ministers make the following Regulations in exercise of the powers conferred by sections 16(1), 17, 26(1)(a) and (3), 31 and 48(1) of and paragraphs 1 and 4(b) of Schedule 1 to the Food Safety Act 1990 and all other powers enabling them to do so.

In accordance with section 48(4A) of that Act, the Scottish Ministers have had regard to relevant advice given by the Food Standards Agency .

There has been 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 .

Citation and commencement

1

These Regulations may be cited as the Natural Mineral Water, Spring Water and Bottled Drinking Water (Scotland) Amendment Regulations 2010 and come into force on 9th April 2010.

Amendment of the Natural Mineral Water, Spring Water and Bottled Drinking Water (Scotland) (No. 2) Regulations 2007

2

The Natural Mineral Water, Spring Water and Bottled Drinking Water (Scotland) (No. 2) Regulations 2007 are further amended in accordance with regulations 3 to 9.

3

In regulation 2(1) (interpretation)—

• (a) after the definition of “the Agency” insert—

“authorised activated alumina treatment” means— 1. a treatment of natural mineral water and spring water with activated alumina in order to remove fluoride, that has been authorised in accordance with Schedule 1A; or 2. in the case of natural mineral water or spring water brought into Scotland from another part of the United Kingdom or from another EEA state, a treatment which complies with Articles 1 to 3 of Regulation 115/2010;

; and

• (b) after the definition of “prescribed concentration or value” insert—

“Regulation 115/2010” means Commission Regulation (EU) No. 115/2010 laying down the conditions for use of activated alumina for the removal of fluoride from natural mineral waters and spring waters ;

4

For regulation 6(1) (treatments and additions for natural mineral water) substitute—

(1) No person shall subject natural mineral water in its state at source to— (a) any treatment other than— (i) an authorised ozone-enriched air oxidation technique; (ii) the separation of its unstable elements, such as iron and sulphur compounds, by filtration or decanting, whether or not preceded by oxygenation, in so far as the treatment does not alter the composition of the water as regards the essential constituents which give it its properties; (iii) the total or partial elimination of free carbon dioxide by exclusively physical methods; or (iv) an authorised activated alumina treatment; or (b) any addition other than the introduction or the re-introduction of carbon dioxide to produce effervescent natural mineral water.

5

After regulation 10(2) (bottling of spring water and exploitation of spring water springs) insert—

(2A) No person shall cause any water which has been treated with activated alumina for removal of fluoride to be bottled in a bottle marked or labelled “spring water”, unless that treatment is an authorised activated alumina treatment.

6

In regulation 16 (enforcement)—

• (a) before “Each food authority shall, within its area—” insert “ ;(1) ”;

• (b) for paragraph (1)(b) substitute—

(b) carry out periodic checks on any authorised activated alumina treatment in respect of which the authorisation was granted by it in accordance with Schedule 1A, to ensure that the requirements of that Schedule continue to be satisfied;

• (c) after paragraph (1) insert—

(2) For the purposes of carrying out the function referred to in paragraph (1)(a) in relation to bottled drinking water and spring water each food authority shall— (a) subject to paragraph (3), carry out regular monitoring of the quality of any such water to check whether— (i) it satisfies the requirements of Directive 98/83; (ii) it contains a concentration or value for any parameter in excess of its prescribed concentration or value; (iii) it contains a concentration or value for a property, element, substance or organism set out in Schedule 9 (as read with the notes to that Schedule) in excess of the concentration or value specified in relation to the property, element, substance or organism concerned in that Schedule as measured by the unit of measurement so specified; (iv) in the case where, in accordance with head (iii), a food authority determines that the water concerned contains a concentration or value for Clostridium perfringens (including spores) in excess of the concentration or value specified in relation to it in Schedule 9 (as read with Note 2 to that Schedule) there is any potential danger to human health arising from the presence in the water of pathogenic micro-organisms; and (v) in the case where disinfection forms part of the preparation or distribution of the water concerned, the disinfection treatment applied is efficient and any contamination from disinfection by-products is kept as low as is possible without compromising the disinfection; (b) in order to comply with sub-paragraph (a)— (i) carry out regular check monitoring in relation to the parameters, properties, elements, substances and organisms set out in Schedule 10, as read with the notes to that Schedule; and (ii) carry out audit monitoring in relation to any parameter and the properties, elements, substances and organisms set out in Schedule 9, as read with the notes to that Schedule; (c) for the purposes of sub-paragraph (b), carry out sampling and analysis in accordance with the relevant minimum frequencies set out in Schedule 11; and (d) carry out additional monitoring in relation to any property, element, substance or organism which is neither a parameter nor a property, element, substance or organism set out in Schedule 9 if the food authority has reason to suspect that it may be present in the water concerned in an amount or number which constitutes a potential danger to human health. (3) The checks and monitoring referred to in paragraph (2)(a), (b) and (d) shall be carried out using samples representative of the quality of the water concerned consumed throughout the year in which the samples are taken.

7

For regulation 20 (offences and penalties) substitute—

(20) (1) A person is guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale if that person— (a) contravenes regulation 5, 6(1), 7(1), (3) or (4), 8, 9, 10, 11, 12, 13, 14, 15 or 22(3); (b) fails to comply with any provision of Regulation 115/2010 specified in paragraph (2); or (c) carries out an authorised activated alumina treatment that has a disinfectant action. (2) The provisions are— (a) Article 1.2 (requirement that authorised activated alumina treatments be performed in accordance with the technical requirements set out in the Annex); (b) the first sentence of Article 2 (requirement that the release of residues into natural mineral water or spring water as a result of any authorised activated alumina treatment be as low as technically feasible according to the best practices and not pose a risk to public health); (c) the second sentence of Article 2 (requirement that, to ensure compliance with the first sentence of Article 2, operators implement and monitor the critical processing steps set out in the Annex); (d) Article 3.1 (requirement that the application of an authorised activated alumina treatment be notified to the competent authorities at least three months prior to use); and (e) Article 4 as read with the second paragraph of Article 5 (requirement that, subject to a transitional provision, the label on natural mineral water or spring water subjected to any authorised activated alumina treatment include specified information in proximity to the statement of the analytical composition).

8

After Schedule 1 (conditions for treatment of natural mineral waters and spring waters with ozone-enriched air) insert the Schedule set out in Schedule 1 to these Regulations.

9

After Schedule 8 (labelling indications for natural mineral water and criteria for use) there are added the Schedules set out in Schedule 2 to these Regulations.

SCHEDULE 1 — SCHEDULE INSERTED AFTER SCHEDULE 1 TO THE NATURAL MINERAL WATER, SPRING WATER AND BOTTLED DRINKING WATER (SCOTLAND) (No. 2) REGULATIONS 2007

SCHEDULE 2 — SCHEDULES INSERTED AFTER SCHEDULE 8 TO THE NATURAL MINERAL WATER, SPRING WATER AND BOTTLED DRINKING WATER (SCOTLAND) (No. 2) REGULATIONS 2007

Signed

SHONA ROBISON — Authorised to sign by the Scottish Ministers — 2010-03-04

Explanatory note

(This note is not part of the Order)

Footnotes

[^f00001]: 1990 c.16. Section1(1) and (2) (definition of “food”) was substituted by S.I.2004/2990; sections 16(1), 17, 31 and48(1) were amended by paragraph 8 of Schedule 5 to the Food Standards Act 1999 (c.28) (“the 1999 Act”); section17 was also amended by paragraph 12 of Schedule 5 to the 1999 Act; section 26(3) was amended by paragraph 1 of Schedule 6 to the 1999 Act; section48(4) is disapplied in respect of these Regulations by virtue of section48(4C) which was inserted by S.I.2004/2990; amendments made by Schedule5 to the 1999 Act shall be taken as pre‑commencement enactments for the purposes of the Scotland Act 1998 (c.46) (“the1998 Act”) by virtue of section40(2) of the 1999 Act. The functions of the Secretary of State, in so far as within devolved competence were transferred to the Scottish Ministers by virtue of section53 of the 1998 Act. In so far as not so transferred, and in so far as relating to food (including drink) including the primary production of food, relevant functions were transferred to the Scottish Ministers by the Scotland Act 1998 (Transfer of Functions to the Scottish Ministersetc.) Order 2005 (S.I.2005/849).

[^f00002]: Section 48(4A) was inserted by paragraph 21 of Schedule 5 to the 1999 Act.

[^f00003]: O.J. No. L31, 1.2.02, p.1 as amended by Regulation (EC) No.1642/2003 of the European Parliament and of the Council (O.J. No.L245, 29.9.2003, p.4), Commission Regulation (EC) No.575/2006 (O.J. No.L100, 8.4.2006, p.3), Commission Regulation (EC) No. 202/2008 (O.J. No. L60, 5.3.2008, p.17) and Regulation (EC) No. 596/2009 of the European Parliament and of the Council (O.J. No. L188, 18.7.2009, p.14).

[^f00004]: S.S.I. 2007/483, amended by S.S.I. 2009/273.

[^f00005]: O.J. No. L37, 10.2.2010, p.13.

Editorial notes

[^c20175191]: 1990 c.16. Section 1(1) and (2) (definition of “food”) was substituted by S.I. 2004/2990; sections 16(1), 17, 31 and 48(1) were amended by paragraph 8 of Schedule 5 to the Food Standards Act 1999 (c.28) (“the 1999 Act”); section 17 was also amended by paragraph 12 of Schedule 5 to the 1999 Act; section 26(3) was amended by paragraph 1 of Schedule 6 to the 1999 Act; section 48(4) is disapplied in respect of these Regulations by virtue of section 48(4C) which was inserted by S.I. 2004/2990; amendments made by Schedule 5 to the 1999 Act shall be taken as pre‑commencement enactments for the purposes of the Scotland Act 1998 (c.46) (“the 1998 Act”) by virtue of section 40(2) of the 1999 Act. The functions of the Secretary of State, in so far as within devolved competence were transferred to the Scottish Ministers by virtue of section 53 of the 1998 Act. In so far as not so transferred, and in so far as relating to food (including drink) including the primary production of food, relevant functions were transferred to the Scottish Ministers by the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 2005 (S.I. 2005/849).

[^c20175201]: Section 48(4A) was inserted by paragraph 21 of Schedule 5 to the 1999 Act.

[^c20175211]: O.J. No. L 31, 1.2.02, p.1 as amended by Regulation (EC) No. 1642/2003 of the European Parliament and of the Council (O.J. No. L 245, 29.9.2003, p.4), Commission Regulation (EC) No. 575/2006 (O.J. No. L 100, 8.4.2006, p.3), Commission Regulation (EC) No. 202/2008 (O.J. No. L 60, 5.3.2008, p.17) and Regulation (EC) No. 596/2009 of the European Parliament and of the Council (O.J. No. L 188, 18.7.2009, p.14).

[^c20175221]: S.S.I. 2007/483, amended by S.S.I. 2009/273.

[^c20175231]: O.J. No. L37, 10.2.2010, p.13.

[^key-464dc423beac2c6a19e688c6d7c679f7]: Word in sch. 2 substituted (9.4.2010) by The Natural Mineral Water, Spring Water and Bottled Drinking Water (Scotland) Amendment (No. 2) Regulations 2010 (S.S.I. 2010/127), regs. 1, 4(a)(i)

[^key-533007941eabf58615f6480bd2ee7aba]: Word in sch. 2 substituted (9.4.2010) by The Natural Mineral Water, Spring Water and Bottled Drinking Water (Scotland) Amendment (No. 2) Regulations 2010 (S.S.I. 2010/127), regs. 1, 4(a)(ii)

[^key-c1779b598ef7fded0f8d745efec165b8]: Word in sch. 2 omitted (9.4.2010) by virtue of The Natural Mineral Water, Spring Water and Bottled Drinking Water (Scotland) Amendment (No. 2) Regulations 2010 (S.S.I. 2010/127), regs. 1, 4(b)

[^key-d27e09c799f6a5ef4805f1760b9df77e]: Words in sch. 1 substituted (9.4.2010) by The Natural Mineral Water, Spring Water and Bottled Drinking Water (Scotland) Amendment (No. 2) Regulations 2010 (S.S.I. 2010/127), regs. 1, 3