European Communities (Materials and Articles in contact with foodstuffs) Regulations, 1988. [S.I. No. 60 of 1988]
An Roinn Tionscail agus Trachtala
I am directed by Mrs. Gemma Hussey, TD, Chairperson of the Joint Committee on the Secondary Legislation of the European Communities, to refer to the European Communities (Materials and Articles in Contact with Foodstuffs) Regulations, 1988 [S.I. No. 60 of 1988] and to request you to assist the Joint Committee in its examination of this instrument by furnishing some observations on its provisions.
Firstly the Joint Committee wishes to ascertain if the Regulations will affect the provisions of any existing Irish legislation including any relevant regulations made under the Food Standards Act, 1974 or the Health Acts, 1947 to 1984.
Secondly the Joint Committee notes that the Regulations would make a seller or a user in the course of business liable to the same penalties as a manufacturer where materials and articles to which the Regulations refer are sold if they have not been manufactured in accordance with the requirements of the Regulations. The Committee would like to hear your views as to whether imposing a strict liability on sellers and users is justifiable or whether such persons should escape criminal penalties unless they knowingly sell or use materials or articles which are not manufactured to the requisite standards.
Finally there are a few matters of detail on which the Committee would welcome elucidation. These are as follows:-
(a)Is the use of the word “unacceptable” in Regulation 4 (d) (ii) intended to catch any change in composition to which any one consumer might take exception? If so is the word necessary at all? If not what is envisaged as an “acceptable” change in composition?
(b)Is it intended that “foodstuffs” will include all beverages for human consumption? The fact that there is a particular provision relating to water in Regulation 3 (1) (b) would suggest not but on the other hand “wine bottle” is one of the examples cited in Regulation 5 (1) (b). If all beverages are intended to be covered would an appropriate definition of the term not be desirable? - see section 1 of the Food Standards Act, 1974.
(c)Are the examples cited in Regulation 5 (1) (b) appropriate having regard to the terms of Regulation 5 (4) ?
(d)Why are any one of three Ministers being given power in Regulation 11 to appoint an approved examiner? What is the nature of the examination envisaged by Regulation 13 (1) (c) ?
a/s Cleireach an Chomhchoiste
3 Meitheamh 1988
(Reminder issued on 26 July, 1988).
26 August 1988
Ms. P.A. Ryan
Joint Committee on the Secondary
Legislation of the European Communities
I refer further to your minute of 26 July, 1988, regarding the European Communities (Materials and Articles in contact with Foodstuffs) Regulations, 1988 (S.I. No. 60 of 1988).
The queries you have raised have been considered and the Attorney General’s Office has been consulted in the matter.
The Regulations will not affect the provisions of existing legislation including Regulations made under the Food Standards Act, 1974 and the Health Acts, 1947 to 1984.
The Regulations implement, inter alia, Council Directive 76/893/EEC of 23 November, 1976 which requires the prohibition of trade in and use of materials and articles which do not comply with the Directive [Article 13(1)]. The prohibition which is required is a strict one and is not qualified in any way. The liability imposed on sellers and users is therefore necessary. It is considered that to put the onus on the prosecutor to prove that a vendor or user “knowingly” sold or used materials and articles which did not comply with the Directive would make the Directive in practice impossible to enforce against a seller or user. The effect of the present prohibition is to put an onus on sellers and users to check that materials and articles used by them do comply with the Directive. It may be noted, however, that penalties under the Regulations are not mandatory and a District Justice will be entitled, in an appropriate case of sale or use which is not blameworthy, to apply a nominal penalty or even to apply the provisions of the Probation Act.
The word “unacceptable” is taken from the Directive already referred to (Article 2) and is necessary in order properly to implement the Directive. Under the Directive, specific Directives such as those relating to regenerated cellulose film and ceramic articles have been introduced and they expand on the terms of Article 2 in that they specify the substances which may be used in manufacturing the materials and articles concerned and set out conditions applying to the use of such substances, or they specify the maximum level of certain constituents which may be transferred from materials and articles under specified methods of analysis. It is expected that further specific Directives relating to other food packaging materials will be adopted in due course. In the last analysis interpretation of this provision, including cases not covered by specific Directives, is a matter for the Courts and ultimately for the Court of Justice in Luxembourg.
It seems clear from the provisions of the Directive that “foodstuffs” does include beverages for human consumption. The examples given in Article 7(1) (a) - reproduced in Regulation 5(1)(b) - make it clear that coffee, wine and soup are all regarded as foodstuffs. Water, which might otherwise not be regarded as a foodstuff, is specifically included in the Directive by Article 1(2) (implemented by Regulation 3). Another reason, perhaps, requiring the specific reference to water is the provision that the Directive does not apply to fixed water supply equipment. Questions of interpretation are for the Courts but the use of the Regulation 2(2) formula ensures a correct implementation of the Directive.
Regulation 5(4) excludes certain articles from the provisions of Regulation 5(1) (a) to (c) where these articles are being sold by retail; they are not excluded when being imported or sold at the wholesale level. Again, the examples are from the 1976 Directive.
It is intended that the Minister for Industry and Commerce will control implementation of the Regulations. For administrative reasons, however, it may prove desirable to use as an approved examiner a body which is under the aegis of one of the other Ministers mentioned; in such circumstances the appointment would be made by the Minister under whose aegis the body operates. This is intended as an enabling provision to be activated by the Minister for Industry and Commerce where appropriate.
The examination in question in Regulation 13(1)(c) would include an examination of materials and articles. It includes, however, any examination “necessary to ascertain whether [the] Regulations are being complied with”. It is probably not possible to anticipate in advance every possible examination which might be necessary for this purpose, and the Regulation gives the necessary powers. However, it can be noted that it is only an examination which is “necessary” which is permitted in order to avoid any possible intrusion on the rights of the citizen.
I trust that the foregoing responses will help to clarify the position for your Committee.