Fifty-second Report of Session 2017-19 Contents

Appendix 1

Draft S.I.

Food Additives, Flavourings, Enzymes and Extraction Solvents (Amendment etc.) (EU Exit) Regulations 2019

1.The Committee requested a memorandum in response to the following points in relation to the above-mentioned instrument:

(1) Explain why the inserted text in regulation 16(b) does not include an obligation to inform the Authority of the receipt of the application.

2.Administrative arrangements are being established to support the efficient transfer of applications and dossiers from the ‘appropriate authority’ to the ‘Food Safety Authority’ for all regulated food products including smoked flavourings. In addition, an appropriate amendment will be made at the next opportunity.

(2) Explain why the definitions of “appropriate authority” and “prescribe” are not inserted in to Regulation (EC) No. 1332/2008, Regulation (EC) No. 1333/2008 and Regulation (EC) No. 1334/2008 and why the definitions of “Authority” and “appropriate authority” are not inserted into Regulation (EU) No.234/2011 (compare regulations 12 and 39 in relation to Regulation (EC) No. 2065/2003 and Regulation (EC) No. 1331/2008).

3.Article 3 of Regulation (EC) No. 1332/2008 provides that ‘the definitions laid down in Regulation (EC) No. 178/2002 [and] Regulation (EC) No. 1829/2003… shall apply’. There is similar wording in Regulation (EC) No. 1333/2008 and Regulation (EC) No. 1334/2008 (also at Article 3). The draft General Food Law (Amendment etc.) (EU Exit) Regulations 2019, at regulation 7, insert the definition of “appropriate authority” into Regulation (EC) No. 178/2002. Accordingly, and on the basis that Parliament agrees to the making of draft General Food Law (Amendment etc.) (EU Exit) Regulations 2019, that definition applies in Regulation (EC) No. 1332/2008 by virtue of Article 3 of Regulation (EC) No. 1332/2008, and there is no need to insert it.

4.The Genetically Modified Food and Feed (Amendment etc.) (EU Exit) Regulations 2019, at regulation 6, insert the definition of “prescribe” into Regulation (EC) No. 1829/2003. Accordingly, that definition applies in Regulation (EC) No. 1332/2008 by virtue of Article 3 of Regulation (EC) No. 1332/2008, and there is no need to insert it.

5.The definitions of “appropriate authority” and “prescribe” apply in Regulation (EC) No. 1333/2008 and Regulation (EC) No. 1334/2008 by virtue of wording equivalent to Article 3 of Regulation (EC) No. 1332/2008 in those Regulations.

6.Regulation (EU) No. 234/2011 is made pursuant to Article 9 of Regulation (EC) No. 1331/2008. The Food Additives, Flavourings, Enzymes and Extraction Solvents (Amendment etc.) (EU Exit) Regulations 2019 insert the definitions of “Authority” and “appropriate authority” into Regulation (EC) No. 1331/2008. The definitions of “Authority” and “appropriate authority” apply in Regulation (EU) No. 234/2011 by virtue of section 11 of the Interpretation Act 1978 (c.30) (expressions used in subordinate legislation have the meaning which they bear in the Act) as read with section 23ZA of that Act (inserted by Schedule 8 paragraph 20 of the European Union (Withdrawal) Act 2018 (c.16)) which applies section 11 to retained direct EU legislation.

(3) Having regard to the Committee’s First Special Report of Session 2013–14 (Excluding the inert from secondary legislation), explain why inserted paragraph 2 in regulations 29, 52, 72, 105 and 132 is not a footnote.

7.The text used in inserted paragraph 2 in regulations 29, 52, 72, 105 and 132 tracks that in Schedule 7 to the European Union (Withdrawal) Act 2018 (c.16), Part 2, paragraph 20(2). The SI Hub Guidance on procedural provisions (Version: 1. Issue date: 19 October 2018.) states-

“13. A power of the Scottish Ministers to make regulations under an enactment is generally exercisable by Scottish statutory instrument thanks to section 27(1) and (2)(a) of Legislative Reform (Scotland) Act 2010 (“the 2010 Act”).

So:

8.It is, however, probably helpful to signpost the provisions in the 2010 Act, especially where you need to make express provision for the other jurisdictions. So you can include something like this:

For regulations made under [these Regulations] by the Scottish Ministers, see section 27 of the Interpretation and Legislative Reform (Scotland) Act 2010.”

9.The SI Hub Guidance makes no mention of the reference to section 27 being in the form of a footnote so the wording used in the Statutory Instrument was adopted in order to achieve some consistency across government.

Food Standards Agency

4 March 2019





Published: 15 March 2019