FSA Consultation, 5 September 2012
A copy of the consultation document is available on this site. See: FOOD STANDARDS AGENCY CONSULTATION THE FOOD (MISCELLANEOUS AMENDMENT AND REVOCATION) (ENGLAND) REGULATIONS 2013
Responses are requested by: 30 November 2012
Who will this consultation be of most interest to?
What is the subject of this consultation?
What is the purpose of this consultation?
The Arsenic in Food Regulations 1959 as amended lay down the general limit of 1 mg/kg (milligram per kilogram) for arsenic in food. Separate limits apply to certain food categories. The Chloroform in Food Regulations 1980 lay down restrictions regarding food with added chloroform. The Regulations prohibit the sale or importation of food containing added chloroform under any circumstances. The Ungraded Eggs (Hygiene) Regulations 1990 prohibit the retail sale of cracked eggs by producers on their own farms, in local public markets or by door to door selling. It is considered by the Food Standards Agency that an equivalent level of protection of public health is already provided under the General Food Law (Regulation (EC) No. 178/2002) and we are proposing that these Regulations are revoked.
The proposal will also amend the Food Labelling Regulations 1996 in order to rectify an incorrect cross-reference in the previous amending labelling Regulations, namely, The Food Labelling (Declaration of Allergens) (England) Regulations 2011 concerning the temporary exemptions from allergen labelling for certain wine treatment agents.
We would welcome your comments on The Food (Miscellaneous Amendment and Revocation) (England) Regulations 2013 ('the proposed Regulations'), attached as Annex B. The proposed Regulations will revoke The Arsenic in Food Regulations 1959 and their amendments ; The Chloroform in Food Regulations 1980; and The Ungraded Eggs (Hygiene) Regulations 1990. The Regulations will also amend the Food Labelling Regulations 1996 in order to correct an error in a previous amending Statutory Instrument, namely The Food Labelling (Declaration of Allergens) (England) Regulations 2011.
The Arsenic in Food Regulations 1959 ('the Arsenic Regulations') have been amended at various times in relation to offences and penalties and to bring them under the scope of current enabling legislation as food law has been amended. The Arsenic Regulations lay down that it is an offence to sell, consign or deliver, or import into England or Wales, any food which contains more than 1 part per million of arsenic by weight.
The Arsenic Regulations are based on science which is now out of date; they set a statutory level for total arsenic that has not been amended to take into account later science. Total arsenic is the sum of all different chemical forms in which arsenic can exist within the environment. The toxicity of arsenic is dependent on the chemical forms in which it is present. Since the Regulations were introduced, it has been shown that the organic forms of arsenic are less harmful but the inorganic forms can cause cancer . As such, Inorganic arsenic present in food at the statutory level set out in the Arsenic Regulations would be considered ‘unsafe’ under more recent General Food Law (Regulation (EC) No. 178/2002 of the European Parliament and of the Council of 28 January 2002 ('General Food Law')) . Currently, if a food incident occurs in relation to arsenic in food, a risk assessment is carried out and any necessary action is taken under the General Food Law - the Arsenic Regulations are no longer required to ensure consumer protection.
The Chloroform in Food Regulations 1980 lay down restrictions regarding chloroform added to food. The Regulations prohibit the sale or importation of food containing added chloroform under any circumstances. It is considered by the Food Standards Agency (FSA) that an equivalent level of protection of public health is achieved under General Food Law, and these Regulations are no longer necessary.
There is now very limited use of chloroform in the food industry, which means that even an isolated contamination incident is highly unlikely. At the time these Regulations were made an absolute prohibition on the presence of chloroform was required because detection was not possible at the very low levels achievable now. Having a limit set at the limit of detection is now inappropriate, as detection with powerful modern analytical techniques can be achieved at levels that are of no relevance for safety.
The Ungraded Eggs (Hygiene) Regulations 1990 were introduced to prohibit the retail sale of cracked eggs by producers on their own farms, in local public markets or by door to door selling because of the potential food safety risk from such products.
It is considered by the FSA that an equivalent level of public health protection is achieved under the General Food Law, which prohibits the sale or supply of unsafe food. In consequence, these Regulations are considered to be no longer necessary and can be revoked. The equivalent legislation in Scotland was revoked on 1st January 2006 by The Food Hygiene (Scotland) Regulations 2005 and the revocation of that legislation has had no detrimental effect on consumer protection.
The proposed Regulations will also amend the Food Labelling Regulations 1996 ('the 1996 Regulations') in order to rectify an incorrect cross-reference in the previous amending labelling Regulations, namely, The Food Labelling (Declaration of Allergens) (England) Regulations 2011 concerning the temporary exemptions from allergen labelling for certain wine treatment agents. The 1996 Regulations are amended, so far as they apply in relation to England, at paragraph (15)(b) of regulation 50. The effect of the correction is to ensure that any food benefiting from the transitional arrangements for new allergen labelling requirements introduced on 31st May 2008 must be compliant in all other respects with the 1996 Regulations as they stood immediately before that date. The transitional arrangements were time limited and that limit has now expired, but products which have a long shelf-life may still be lawfully on sale.
Consultation question 1
Stakeholders are invited to comment on whether they consider the amended regulation 50(15)(b) of the 1996 Regulations has the intended effect.
Red Tape Challenge
In April 2011 the Government launched in England the Red Tape Challenge (RTC) initiative with the purpose of getting comments from business and the public on how the burden of legislation can be reduced. On 6th May 2011 most of the FSA’s legislation was published on the RTC website under the Hospitality Theme and remained on the site until 2 June 2011. The FSA has a number of initiatives being delivered under the RTC, including developing a simplified system of food safety legislation. This involves the consolidation and revocation of a number of domestic Statutory Instruments, which are no longer required for consumer protection. This includes the proposed revocation of The Arsenic in Food Regulations 1959, The Chloroform in Food Regulations 1980 and the Ungraded Eggs (Hygiene) Regulations 1990, which are the subject of this consultation. The RTC applies to England only.
Impact on Businesses and Enforcement Authorities as a Result of Revocation
The FSA considers that the impact on both enforcement authorities and industry of the proposed changes will be negligible.
For enforcement purposes, once the chloroform, arsenic and ungraded eggs national Regulations are revoked, Article 14 of General Food Law would apply, if there were any concerns to consumer health. There is thus, unlikely to be a risk to consumer safety from revoking these Regulations.
A 12 week consultation is being launched to provide consultees with the opportunity to comment on these proposals. The revocation of the Arsenic in Food Regulations, the Chloroform in Food Regulations and The Ungraded Eggs (Hygiene) Regulations 1990 is considered by the FSA to be beneficial in terms of removal of redundant and out-of-date legislation and non-controversial in terms of food safety.
We have not produced an Impact Assessment for these proposals, as we expect the impact to be negligible. If however, the consultation should bring to light any impact on enforcement bodies, industry and concerns to consumer health, which has not been anticipated, we will reconsider the need for an Impact Assessment.
Purpose of Consultation
To provide stakeholders with an opportunity to comment on the proposal to revoke the Regulations mentioned in the Key proposal box below and to make the necessary amendments to the food labelling Regulations.
Separate consultation will be carried out in Wales, Scotland and Northern Ireland on the revocation of the Regulations in that part of the UK.
To revoke the following redundant and out of date legislation:
Consultation question 2
Stakeholders are asked to comment on the FSA’s proposals above and whether you agree with the FSA’s view of the impact. If you agree or disagree with the proposals contained here, please provide evidence to support your views.
Other relevant documents
The national Regulations mentioned above are available on the ‘legislation.gov.uk’ website at: http://www.legislation.gov.uk/uksi/1990/1323/contents/made
The General Food Law (Regulation 178/2002) mentioned in this document is available on the EURlex website at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2002:031:0001:0024:EN:PDF
Responses are requested by close of business on Friday 30 November 2012. 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.