S.I. No. 265/1991 - European Communities (Food Imitations) (Safety) Regulations, 1991.

S.I. No. 265 of 1991.

EUROPEAN COMMUNITIES (FOOD IMITATIONS) (SAFETY) REGULATIONS, 1991.

I, DESMOND O'MALLEY, Minister for Industry and Commerce, in exercise of the powers conferred on me by section 3 of the European Communities Act, 1972 (No. 27 of 1972), and for the purposes of giving effect to Council Directive 87/357/EEC of 25 June, 1987⁽¹⁾, hereby make the following Regulations:

⁽¹⁾ O.J. No. L 192/49, 11.7.1987.

1 Citation and Commencement.

1. (1)These Regulations may be cited as European Communities (Food Imitations) (Safety) Regulations, 1991.

(2) These Regulations shall come into operation on the 1st day of November, 1991.

2 Interpretation.

2. (1) In these Regulations—

"authorised officer" means a person appointed under Regulation 6 of these Regulations to be an authorised officer for the purposes of these Regulations;

"the Council Directive" means Council Directive 87/357/EEC of 25 June, 1987;

"the Director" means the Director of Consumer Affairs and Fair Trade;

"place on the market" means—

(a) import,

(b) sell,

(c) offer or expose for sale,

(d) distribute free of charge, or

(e) supply by a manufacturer for any of those purposes; and cognate words shall be construed accordingly;

"the Minister" means the Minister for Industry and Commerce.

(2) A word or expression that is used in these Regulations and is also used in the Council Directive has, unless the contrary intention appears, the same meaning in these Regulations that it has in the Council Directive.

3 Scope.

3. These Regulations apply to those produces to which Council Directive 87/357/EEC of 25 June, 1987 applies, being those products which, although not foodstuffs, possess a form, odour, colour, appearance, packaging, labelling, volume or size, such that it is likely that consumers, especially children, will confuse them with foodstuffs and in consequence place them in their mouths, or suck or ingest them, which might be dangerous and cause, for example, suffocation, poisoning, or the perforation or obstruction of the digestive tract.

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4. No person shall manufacture, place on the market or export any of the products to which these Regulations apply.

5 Prohibitions.

5. (1) Where the Minister or the Director is of opinion that a person is manufacturing, placing on the market or exporting a product in contravention of Regulation 4 of these Regulations he may by direction in writing given to that person prohibit him from manufacturing, placing the product on the market or exporting it and he may, if he thinks fit, cause a notice to be published in at least one national daily newspaper notifying the public of the prohibition.

(2) The Minister or the Director may, as he thinks fit, withdraw a direction given by him under paragraph (1) of this Regulation.

(3) Any trader or importer who is affected by a direction given under paragraph (1) of this Regulation may appeal to the High Court against the direction and the Court, as it thinks proper, may annul or confirm the direction.

(4) A document purporting to be a direction given by the Minister or the Director under paragraph (1) of this Regulation and to be signed by the Minister or the Director (as the case may be) shall be received in evidence and deemed to be such a direction without further proof, unless the contrary is shown.

(5) Where notice is to be served on a person under this Regulation it shall be addressed to him and may be served on, given or sent to him in some one of the following ways:

(a) where it is addressed to him by name, by delivering it to him,

(b) by leaving it at the address at which he carries on business or ordinarily resides, or, in a case in which an address for service has been furnished, at that address,

(c) by sending it by post in a prepaid registered letter addressed to him at the address at which he carries on business or ordinarily resides, or, in a case in which an address for service has been furnished, at that address.

(6) For the purposes of paragraph (5) of this Regulation a company within the meaning of the Companies Acts, 1963 to 1990 shall be deemed to be ordinarily resident at its registered office, and every other body corporate and every unincorporated body shall be deemed to be ordinarily resident at its principal office or any other place at which it carries on business.

6 Appointment of Authorised Officers.

6. (1) The Minister or the Director may respectively appoint such and so many of their officers as they think fit, to be authorised officers for the purposes of these Regulations.

(2) An authorised officer shall be furnished with a warrant of his appointment as an authorised officer and when exercising any power conferred on an authorised officer by these Regulations shall, if requested by any person affected, produce the warrant to that person.

7 Powers of Authorised Officers.

7. (1) An authorised officer may enter and inspect, at all reasonable times—

(a) any premises on which he has reasonable grounds for believing that products to which these Regulations apply are manufactured or stored, or

(b) any railway wagon, ship, vehicle, vessel or aircraft in which he has reasonable grounds for believing that products to which these Regulations apply are being transported for sale in the State or for export,

and there make such examinations, tests or inspections as he may consider appropriate for the purposes of these Regulations.

(2) An authorised officer may select a sample of a product to which he believes these Regulations apply and take it away for examination.

8 Seizure of Product.

8. (1) If a justice of the District Court is satisfied on the sworn information of an authorised officer that there are reasonable grounds for suspecting that an offence under these Regulations has been, or is being committed or is likely to be committed on any premises or other place, he may issue a warrant under his hand authorising a specified authorised officer, accompanied by such members of the Garda Síochána as that officer thinks necessary, at any time or times within one month from the date of the issue of the warrant, to enter, if need be by force, and search the premises or other place specified in the warrant and—

(a) to seize any product found there which in his opinion could not, without contravening Regulation 4 of these Regulations, be manufactured, placed on the market or exported, and

(b) to require any person found there to give him his name and address and any other information in his possession in relation to any product referred to in subparagraph (a) of this paragraph.

(2) An application under paragraph (1) of this Regulation for an issue of a warrant shall be made to a justice of the District Court district in which the premises or place to which the application refers is situated.

9 Offences.

9. (1) It shall be an offence—

(a) to contravene Regulation 4 of these Regulations, or

(b) to contravene, or fail to comply with, the terms of a written direction under Regulation 5 of these Regulations, or

( c ) to interfere with an authorised officer in the exercise of his duties under these Regulations, or

( d ) to obstruct or interfere with an authorised officer or member of the Garda Síochána in the exercise of his powers under Regulation 8 of these Regulations or to refuse to give information required under paragraph (1) (b) of that Regulation, or

( e ) for any person to have in his possession for sale a product which a Court has found to be a product to which these Regulations apply.

(2) Where an offence under these Regulations has been committed by a body corporate and is proved to have been so committed with the consent or connivance of or to be attributable to any neglect on the part of any person, being a director, manager, secretary or other officer of the body corporate, or a person who was purporting to act in any such capacity that person as well as the body corporate, shall be guilty of an offence and shall be liable to be proceeded against and punished as if he were guilty of the first-mentioned offence.

10 Penalties.

10. (1) A person guilty of an offence under these Regulations shall be liable, on summary conviction, to imprisonment for a period not exceeding six months or to a fine of £1,000 or to both such imprisonment and fine.

(2) Notwithstanding section 10 (4) of the Petty Sessions (Ireland) Act, 1851, proceedings for an offence under these Regulations may be instituted at any time within one year from the date on which the offence was committed.

11 Prosecution.

11. An offence under these Regulations may be prosecuted by the Minister or by the Director.

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12. (1) Where a person is convicted of an offence under these Regulations, the court by or before which he is convicted may order any product in respect of which the offence was committed to be forfeited and either destroyed or otherwise disposed of in such manner as the court may determine.

(2) An order under this Regulation shall not take effect until the time for instituting an appeal against the conviction or order concerned has expired or, where such an appeal is instituted, until it or any further appeal is finally decided or abandoned or the ordinary time for instituting any further appeal has expired.

13 Revocation.

13. The Industrial Research and Standards (Section 44) (Resemblance to Food of Non-Food Products used by Children) Order, 1983, ( S.I. No. 368 of 1983 ), is hereby revoked.

GIVEN under my Official Seal, this 17th day of October, 1991.

DESMOND O'MALLEY,

Minister for Industry and Commerce.

EXPLANATORY NOTE.

These Regulations implement Council Directive 87/357/EEC of 25 June, 1987.

The purpose of the Regulations is to ban products which resemble foodstuffs and, accordingly, may lead consumers, especially children, to place these products in their mouths thereby constituting a risk to health.

The Industrial Research and Standards (Section 44) (Resemblance to Food of Non-Food Products used by Children) Order, 1983 is revoked by these Regulations.