The Gazette 1977

APRIL 1977

GAZETTE

Appropriate powers are given in the Act for the examination of samples of food and drink and the carrying out of tests and analyses of these samples. As with most of our modern statutes, extensive powers are given to make Regulations and amongst these, are the provisions relating to the enforcement and execution of the Regulations by the appropriate officers as set out in Section 59 of the Act, and the power to seize and destroy offending items of foods which are conferred on authorised officers or members of the Garda Siochana. Authorised officers are defined in a later part of the Act as: (a) An officer of the Minister appointed in writing by the Minister to be an authorised officer for the purposes of this part of this Act. (b) An officer of the Minister for Agriculture appointed in writing by the Minister with the consent of the Minister for Agriculture, to be an authorised officer for the purposes of this part of this Act. (c) The manager of a Health Authority. (d) A Chief Medical Officer. (e) An officer of a Health Authority appointed in writing by the manager thereof to be an authorised officer for the purposes of this part of this Act (0 An officer of a Sanitary Authority appointed in writing by the manager thereof to be an authorised officer for the purposes of this part of this Act. Offences under this Act are frequently committed by a number of traders who handle the food in sequence. The trader'last in possession is the one most vulnerable to prosecution but it could be that he is the least blameworthy. The Act, therefore, provides for a "by- passing" procedure which enables the real offenders to be brought before the Court and in certain circumstances enables a person prosecuted to avoid conviction and even to enable a person legally at risk, to avoid prosecution. I quote the Section to which I refer, viz. S. 63, Sub.S. 1 (d) and Sub.S. 2 and 3. 63 (1) (d) If the defendant in any prosecution for an offence relating to the nature, substance, quality or condition of any food proves — (i) that he purchased such food as of a nature, sub- stance or quality or in a condition which would not have contravened such regulation and with a written warranty to that effect, and (ii) that he had no reason to believe at the time when he sold such food that it was of a different nature or quality or in a different condition, and (iii) that he sold such food in the same state as when he purchased it, such defendant shall be discharged from the prosecu- tion but shall be liable to pay the costs incurred by the prosecutor unless he gave due notice to the prosecutor that he proposed to rely on the said defence. 63 (2) A statement by the manufacturer, importer or seller of food as to its nature, substance, quality or condition in an invoice or on a label attached to the food, or on the packet or container in which the food is sold shall be deemed for the purpose of subparagraph (i) of paragraph (d) of subsection (1) of this section to be a warranty. 63 (3) Where it appears to the authority or officer enforcing any provision of this part of this Act or the regulations made thereunder that an offence has been committed in respect of which proceedings might be taken against some person but that such person could 52

establish a defence under paragraph (d) of subsection (1) of this section by proving that the offence complained of was due to an act or default of some other person, such authority or officer may take proceedings against that other person without taking proceedings against the first-mentioned person. There is a school of thought which maintains that such a defence is not necessary and that the Courts habitually have regard to mitigating circumstances. It would seem to be contrary to Natural Justice that an accused person should be obliged to provide such information to the prosecutor and be liable to pay costs when not actually convicted. One final point to be noted about this Act is that the expression "food intended for sale for human consumption" includes food kept in certain establishments such as hotels, schools, hospitals, etc., specified by ministerial Regulation. As we have seen the 1947 Act enabled the Minister for Health to make Regulations for the better implementation of the Statute, aftpr consultation with the Minister for Industry and Commerce and the Minister for Agriculture. Accordingly, the Food Hygiene Regulations 1950 came into being and became operative on 15 February 1951. The Food Hygiene Regulations 1950 The Regulations which are of a very comprehensive nature, attempt to give effect to the provisions of the 1947 Act in the following areas, viz.: (1) The sale of food unfit for human consumption; (2) the importation of food unfit for human consumption; (3) the taking of food samples; (4) the regulation of food premises and stalls and the transport and handling of food; (5) the registration of food premises and (6) the manufacture of ice-cream and sale of shellfish. Some of the powers of enforcement provided in these Regulations are more effective than those we considered earlier. For instance the local Chief Medical Officer is empowered to make Orders prohibiting the importation of food unfit for human consumption. An appeal lies from this decision to a Justice of the District Court or a Peace Commissioner. The Regulations relating to the condition of food premises govern such matters as cleanliness, ventilation, lighting, washbasins, garbage disposals, conditions of machinery and utensils, exposure of food, overalls, etc., similar provisions are made with regard to food stalls and food vehicles. It is noteworthy, and commendable, that the Regulations govern not only the proprietor of the food premises but the workers employed there and these are directed to keep themselves clean and wear clean clothing, maintain their utensils and machinery in clean condition and to avoid unnecessary handling of food. Indeed, even members of the public are forbidden to engage in any unhygienic practices whilst in food premises, so that presumably anyone suffering from the common cold who enters the local supermarket can render himself or more likely herself liable to a fine of £20. The Minister is given authority to direct that any premises or stall shall not be used in connection with a food business if he is of the opinion that there is grave and immediate danger that the premises will cause food to be contaminated.