S.I. 2003/721: memorandum from the Department
of Trade and Industry
Creosote (Prohibition on Use and Marketing) Regulations
2003 (S.I. 2003/721)
92. By a letter dated 8 April 2003, the Committee
requested the Department of Trade and Industry to submit a memorandum
on the following points:
(1) Explain how regulation 5(2)(c) is intended
to work in practice. In particular, where a person offers to supply,
or possesses for supply, a dangerous substance or preparation
but has not yet sold it, is it intended that he commits an offence
under regulation 5(1):
(a) if he makes it clear in the offer or in
some other way that he will not sell
it to consumers;
(b) if he does not do so?
(2) Why does regulation 5 not provide instead
that the sale of a dangerous substance or preparation to a consumer
is prohibited, irrespective of whether it is covered by paragraph
(2) of that regulation?
93. As stated in the Explanatory Note to S.I.
2003/721 ("the Regulations"), the Regulations implement
Commission Directive 2001/90/EC.
94. With regard to point 1, regulation 5(2)(c)
is intended to make criminal the activity of selling a dangerous
substance or preparation to a consumer. It was not the policy
intention to criminalise any offering to supply, agreeing to supply,
exposing for supply or possessing for supply of a dangerous substance
or preparation where the requirements of regulation 5(2)(a) and
(b) are complied with. The Department regrets the lack of clarity
in the drafting of the Regulations and will undertake to remedy
the error at the first opportunity.
95. With regard to point 2, the Department is
considering how best to correct the drafting error acknowledged
in relation to point 1 and is grateful for the Committee's suggestion.
25th April 2003