PART IV

Enforcement of Food Safety Standards

44. —This Part shall come into operation on such day or days as the Minister may appoint by order or orders either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes and different provisions.

45. —Subject to section 57 , in any food legislation, passed or made before the establishment day, any functions of an official agency in relation to the enforcement of the legislation shall be deemed to be a function of the Authority.

46. —For the purposes of section 11 , the Authority shall carry out or arrange to have carried out on its behalf under section 48 the following:

(a) the inspection, approval, licensing or registration of premises and equipment, including premises or equipment used in connection with the manufacture, processing, disposal, transport and storage of food,

(b) the inspection, sampling and analysis of food, including food ingredients, and

(c) the inspection and analysis of food labelling,

to determine compliance with food legislation.

47. —For the purposes of section 11 , and in addition to the powers of inspection under food legislation or section 46 , the Authority may, in the case of a particular circumstance identified by an authorised officer which is in the interest of food safety and hygiene, carry out or arrange to have carried out such additional inspections as it considers necessary for the discharge of its functions under this Act, and any such inspections shall as far as is practicable be carried out by or on behalf of the Authority in consultation with such persons as it considers appropriate.

48. —(1) The Authority may for the purposes of carrying out its functions under section 46 enter into a contract (“service contract”) with—

(a) in the case of any food legislation mentioned in the First Schedule at the passing of this Act, the official agency responsible immediately before the commencement of section 45 for the enforcement of those standards in that legislation,

(b) in the case of any food legislation mentioned in the First Schedule inserted by order under section 5 after the passing of this Act, the official agency responsible immediately before the making of the order (or, where the order contains a commencement provision, its commencement) for the enforcement of those standards in that legislation, or

(c) the relevant official agency in relation to any food legislation passed or made after the establishment day and deemed to be food legislation for the purposes of this Act.

(2) An official agency carrying out functions under a service contract shall be acting on behalf of and as an agent for the Authority.

(3) The Authority shall specify the following matters to an official agency with which it proposes to enter into a service contract—

(a) the objectives and targets for food inspections it wishes the official agency to meet, having regard to the resources available to the official agency,

(b) the timeframe in which it wishes to have the targets and objectives achieved, and

(c) any other matter considered necessary by the Authority.

(4) An official agency which proposes to enter into a service contract with the Authority shall indicate to the Authority the means by which it proposes to meet those targets and objectives, including the resources it proposes to deploy in performance of the service contract.

(5) A service contract shall be in force for a period of not less than 3 years and may, at the request of either party, be subject to review during that period.

(6) Any service contract shall be published by the Authority within 3 months of being entered into.

(7) The Authority shall publish within 3 months the changes to and the reasons for such changes to a contract arising from any review carried out in accordance with subsection (5).

(8) The official agency concerned shall within 3 months of the end of each year of the contract, provide to the Authority an annual report, or at the request of the Authority more frequent reports, on the implementation of the service contract and the Authority may, if it considers it appropriate, publish such reports.

(9) The Authority shall take such measures as it considers appropriate to determine whether an official agency is adequately carrying out inspections under a service contract.

(10) An official agency which indicates to the Authority that it does not wish to enter into or renew a service contract with the Authority shall inform the Minister as soon as may be of its indication through the Minister of the Government or other person having responsibility for the official agency and give reasons for its indication.

(11) An official agency which enters into a service contract shall provide the necessary resources for the performance of the contract.

(12) Where an official agency fails to enter into a service contract or, in the opinion of the Authority, an official agency has failed to discharge all or a significant or material part of its obligations under a service contract, the Authority, without delay and following consultations with the Minister of the Government or other person having responsibility for the official agency concerned, shall put in place such arrangements as it considers necessary for the performance of the subject matter of the service contract in question.

(13) The Authority may make a special report to the Minister in cases of full or significant non-performance of a service contract and the Minister shall cause copies of such report to be laid before each House of the Oireachtas.

49. —(1) The Board or the chief executive may appoint in writing persons to be authorised officers for the purposes of this Act.

(2) The Board or the chief executive may appoint in writing any person to be an authorised officer for a fixed period for the purposes of all or any of the provisions of this Act.

(3) An official agency, where it has entered into a service contract with the Board, shall appoint persons to be authorised officers for the purpose of that contract and shall, as soon as may be, inform the Authority of any such appointment and such persons shall have all the powers available to authorised officers under this Act while in performance of a service contract.

(4) Every authorised officer appointed under this section shall be furnished by the Authority or the official agency, as the case may be, with a warrant of his or her appointment as an authorised officer and when exercising any power conferred on him or her by this section as an authorised officer shall, if requested by a person affected, produce the warrant or a copy thereof to that person.

(5) An appointment under this section as an authorised officer shall cease—

(a) in the case of an appointment made by the Board or the chief executive, where the Board or the chief executive, as the case may be, revokes the appointment,

(b) in the case of an appointment made by an official agency, where the relevant service contract is determined,

(c) where it is for a fixed period, upon the expiry of that period, or

(d) where the person appointed is an officer of an official agency or of the Authority, upon his or her ceasing to be such an officer.

50. —(1) Without prejudice to the provisions of any food legislation, an authorised officer may, for the purpose of obtaining any information which may be required in order to enable the Authority to exercise its functions under this Act or an official agency to exercise its functions under a service contract—

(a) require any employee of the Authority or of an official agency, a former employee of the Authority or an official agency or any person otherwise currently or previously retained by an official agency, or any person who carries or has carried on any trade, business or activity to which this Act relates or any person currently or previously employed in connection with that trade, business or activity to produce to him or her such records, and in the case of such information in a non-legible form to reproduce it in a permanent legible form, or to give to him or her such information, as the officer may reasonably require in relation to any entries in such records,

(b) at all reasonable times enter any premises, subject to subsection (2), at which there are reasonable grounds to believe that any trade, business or activity in connection with the production, processing, disposal, manufacture, exportation, importation, storage, distribution or sale of food is, or has been, carried on, or that records in relation to such trade, business or activity are kept, and search and inspect the premises, and any records in or on the premises,

(c) secure for later inspection any premises or any part thereof in which such records are kept or there are reasonable grounds for believing that such records are kept,

(d) inspect and take copies of or extracts from any such records (including in the case of information in a non-legible form a copy of or extract from such information in a permanent legible form),

(e) remove and retain the said records for such period as may be reasonable for further examination,

(f) require a person referred to in paragraph (a) to give to the officer any information which the officer may reasonably require in regard to the trade, business or activity or in regard to the persons carrying on such trade, business or activity or employed in connection with that trade, business or activity,

(g) require any person referred to in paragraph (a) by or on whose behalf data equipment is or has been used in relation to a business within the meaning of paragraph (b) or any person having charge of, or otherwise concerned with the operation of, the data equipment or any associated apparatus or material, to afford the officer all reasonable assistance in relation to its use thereto,

(h) summon, at any reasonable time, any other person being or having been an employee of the Authority or of an official agency or retained or having been retained by the Authority or an official agency or employed in connection with the trade, business or activity under examination by the Authority or by its agent, by virtue of a service contract to give to the officer any information which the officer may reasonably require in regard to that trade, business or activity and to produce to the officer any records which are in that person's power or control.

(2) An authorised officer shall not, other than with the consent of the occupier, enter a private dwelling unless he or she has obtained a warrant from the District Court under subsection (4) authorising such entry.

(3) An authorised officer, where he or she considers it necessary, may require a member of the Garda Síochána to assist him or her when performing any powers conferred on an authorised officer by this Act which involves the breaking open of any premises or any other action in which the use of force may be necessary and is lawful and any member of the Garda Síochána so required shall, unless he or she has reasonable excuse, comply with the requirement.

(4) If a judge of the District Court is satisfied on the sworn information of an authorised officer that there are reasonable grounds for suspecting that there is information required by an authorised officer under this section held in any premises, the judge may issue a warrant authorising an authorised officer, accompanied if appropriate by other authorised officers or by a member of the Garda Síochána, at any time or times within one month from the date of issue of the warrant, on production of the warrant if so requested, to enter that premises, if need be by reasonable force, and exercise all or any of the powers conferred on an authorised officer under this section.

(5) A person who, without reasonable excuse, fails to comply with a requirement (other than a requirement under subsection (3)) made by an authorised officer under this Act shall be guilty of an offence.

(6) A person guilty of an offence under subsection (5) shall be liable—

(a) on summary conviction, to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 3 months or to both, or

(b) on conviction on indictment, to a fine not exceeding £100,000 or to imprisonment for a term not exceeding 12 months or to both.

(7) Where a person, after conviction of an offence under subsection (5), continues to contravene that provision, he or she shall be guilty of an offence on every day on which the contravention continues and for each such offence he or she shall be liable to a fine—

(a) on summary conviction, not exceeding £500, or

(b) on conviction on indictment, not exceeding £15,000.

(8) A person who obstructs or interferes with an authorised officer in the exercise of his or her powers under this Act or gives an authorised officer information which the person knows to be false or misleading shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 3 months, or to both.

51. —(1) For the purposes of food inspections to be carried out by or on behalf of the Authority, and without prejudice to the provision of any food legislation concerning the sampling and analysis of food, the Minister, following consultation with the Authority, may—

(a) make regulations—

(i) for the taking of samples of food or materials or articles used or intended for use in the preparation or manufacture of food (including packaging and machinery) or of articles which are by-products of the manufacture of food, and

(ii) to enable the carrying out of tests, examinations and analyses of such samples,

(b) following consultation with the Scientific Committee, prescribe—

(i) the certificate or other evidence to be given of the result of any test, examination or analysis carried out in accordance with such regulations, and

(ii) the persons or the classes of persons by and to whom such certificate or evidence is to be given.

(2) Any certificate or other evidence provided in accordance with regulations made under subsection (1) or with relevant food legislation shall be prima facie evidence in respect of the result of a test, examination or analysis of a sample, and such certificate or other evidence shall, as respects those samples, be accepted by all Courts of Justice as evidence of the result of such test, examination or analysis and that such test, examination or analysis was carried out under and in accordance with this Act or other food legislation until the contrary is shown.

(3) A person who obstructs a person authorised by the Authority to take samples under regulations made under subsection (1) shall be guilty of an offence and shall be liable to a fine not exceeding £1,500.

52. —(1) Where an authorised officer is of the opinion—

(a) that at any premises (or part of a premises and including any premises on lands contiguous or adjacent to the premises) any activity which involves the handling, preparation, processing, manufacturing, distribution, storage or selling of food, or

(b) that the condition of any premises (or part of a premises and including any premises or lands contiguous with or adjacent to the premises) at, in or on which these activities are carried out,

is of such a nature that if it persists, it will or is likely to pose a risk to public health, the officer may, following consultations with the chief executive or such other officer of the Authority or an official agency designated in that behalf by the Board, serve, or arrange to have served, on the proprietor or person in charge a notice (“improvement notice”) signed by the officer or the chief executive or other officer of the Authority or official agency designated in that behalf by the Board, and stating that he or she is of that opinion and the notice shall—

(i) identify the activity or defect in the premises (or part thereof) giving rise to the risk,

(ii) require that remedial action be taken and, if appropriate, shall specify the nature or details or such remedial action,

(iii) specify a time limit by which the remedial action is to be completed or implemented, and

(iv) shall include any other requirements as are considered necessary in the given circumstances by the authorised officer.

(2) An improvement notice shall be served on the proprietor or person in charge of the premises and shall be effective immediately or, as appropriate, from a date specified in the notice and the Board shall be notified at the next available meeting of the Board of any such service.

(3) The chief executive or a member of the staff of the Authority or a member of the Board, authorised by the Board in this connection, may, for stated reasons, revoke or vary an improvement notice made in accordance with this section and the Board shall be notified at the next available meeting of the Board of any such revocation or variation and the reasons therefor.

(4) Where an improvement notice is not complied with or is not complied with to the satisfaction of an authorised officer, the Authority or official agency may seek an order (“improvement order”) of the District Court addressed to the proprietor or person in charge, directing him or her to comply with the improvement notice and the order shall specify—

(a) the remedial work to be undertaken,

(b) the time limit for completion or implementation of the remedial work, and

(c) such other requirement, if any, as the Court may consider appropriate.

(5) An improvement order shall provide that the Authority or official agency may serve a closure order—

(a) where the improvement order is not complied with within the time specified in the improvement order, or

(b) where there are circumstances specified in the improvement order which arise prior to the expiry of the time limit specified in the improvement order which warrant the serving of a closure order.

(6) Nothing in this section shall prevent the Authority or official agency from serving a closure order at any time in respect of any premises which is subject to an improvement notice if, in the opinion of an authorised officer, the circumstances require the service of a closure order.

53. —(1) Where an authorised officer is of the opinion that there is or is likely to be a grave and immediate danger to public health at, in or on any premises or part thereof or where the authorised officer is unable to establish to his or her satisfaction, due to any obstruction, the level of or the extent to which such a danger, if any, exists, the authorised officer may, following consultations with the chief executive or such other officer of the Authority or an official agency designated in that behalf by the Board, serve, or arrange to have served, on the proprietor or person in charge of the premises a notice (“closure order”) signed by the officer or the chief executive or other officer of the Authority or official agency designated in that behalf by the Board, stating that he or she is of that opinion, and the closure order shall, as appropriate—

(a) state that the authorised officer is of the opinion that the premises or part thereof to which the order relates should be closed,

(b) specify the matters which in his or her opinion give or, as the case may be, are likely to give rise to the said risk,

(c) where in his or her opinion any of those matters involves or, as the case may be, will involve a contravention of any of the food legislation state that he or she is of that opinion, specify the provision or provisions as to which he or she is of that opinion, and give particulars of the reasons why he or she is of that opinion, and

(d) direct that the premises be closed unless and until the matters specified in the order in pursuance of paragraph (b) and any associated contravention of provisions so specified in pursuance of paragraph (c) have been remedied.

(2) The Board shall be notified at the next available meeting of the Board of the service of a closure order.

(3) A closure order shall take effect—

(a) where the order so declares, immediately the closure order is received by the person on whom it is served,

(b) in any other case—

(i) where no appeal is taken against the closure order, on the expiration of the period during which such an appeal may be taken or the day specified in the closure order as the day on which it is to come into effect, whichever is the later, or

(ii) in case such an appeal is taken, on the day next following the day on which the closure order is confirmed on appeal or the appeal is withdrawn or the day specified in the closure order as that on which it is to come into effect, whichever is the later.

(4) The bringing of an appeal against a closure order which is to take effect in accordance with subsection (3)(a) shall not have the effect of suspending the operation of the closure order, but the appellant may apply to the court to have the operation of the closure order suspended until the appeal is disposed of and, on such application, the court may, if it thinks proper to do so, direct that the operation of the order be suspended until the appeal is disposed of.

(5) (a) A person who is aggrieved by a closure order may, within the period of 7 days beginning on the day on which the closure order is served on him or her, appeal against the order to a judge of the District Court in the district court district in which the order was served in the prescribed manner and in determining the appeal the judge may—

(i) if he or she is satisfied that in the circumstances of the case it is reasonable to do so, confirm the closure order, with or without modification, or

(ii) cancel the closure order.

(b) Where on the hearing of an appeal under this section a closure order is confirmed, notwithstanding subsection (4) the judge of the District Court by whom the appeal is heard may, on the application of the appellant, suspend the operation of the closure order for such period as in the circumstances of the case the district judge considers appropriate.

(6) A person who appeals against a closure order or who applies for a direction suspending the application of the closure order under subsection (4) shall at the same time notify the Authority or official agency of the appeal or the application and the grounds for the appeal or the application and the Authority or official agency shall be entitled to appear, be heard and adduce evidence on the hearing of the appeal or the application.

(7) The chief executive or other person, being an employee of the Authority or member of the Board, authorised by the Board in this connection, may, for stated reasons, revoke or vary a closure order made in accordance with this section and the Board shall be notified at the next available meeting of the Board of any such revocation or variation and the reasons therefor.

(8) (a) Where a closure order has been served and activities are carried on in contravention of the order, the High Court may, on the application of an authorised officer, by order prohibit the continuance of the activities and order the closure of the premises.

(b) An application to the High Court for an order under this subsection shall be by motion and the Court, when considering the matter, may make such interim or interlocutory order (if any) as it considers appropriate and the order by which an application under this subsection is determined may contain such terms and conditions (if any) as to the payment of costs as the Court considers appropriate.

(9) The chief executive shall, in the interests of public health and consumer protection, make such arrangements as he or she considers appropriate or necessary to bring the contents of a closure order to the attention of the public.

54. —(1) Where, as regards any activities which involve the handling, processing, disposal, manufacturing, storage, distribution or selling of food to which this section applies, an authorised officer is of the opinion that the activities involve or, are likely to involve, a serious risk to public health, the authorised officer may, following consultations with the chief executive or such other officer of the Authority or an official agency designated in that behalf by the Board, serve, or arrange to have served, on the proprietor or person in charge of the food in question a notice (“prohibition order”) signed by the officer or the chief executive or other officer of the Authority or official agency designated in that behalf by the Board, stating that he or she is of that opinion and the prohibition order shall—

(a) state that the authorised officer is of the opinion that a particular consignment, class, batch or item of food should be withdrawn from sale (whether or not the product is on the market for sale in the State or elsewhere),

(b) specify the matters which in his or her opinion give or, as the case may be, are likely to give rise to the said risk,

(c) where in his or her opinion any of those matters involves or, as the case may be, will involve a contravention of any of the food legislation, state that he or she is of that opinion, specify the provision or provisions as to which he or she is of that opinion, and give particulars of the reasons why he or she is of that opinion, and

(d) in respect of any or all of the following, direct the person on whom the prohibition order is served to ensure that the food—

(i) is not used for human consumption,

(ii) is recalled from sale or distribution (whether or not the food is on sale or being or has been distributed for sale in the State or elsewhere),

(iii) as appropriate in the interests of public health, is rendered safe for human consumption or is detained or is destroyed in a manner prescribed by the authorised officer,

and, in the event of non-compliance or delay by the person on whom the notice has been served, an authorised officer of the Authority or official agency shall, following consultations with the chief executive or other officer of the Authority or official agency designated in that behalf by the Board, take whatever steps are considered necessary to ensure compliance with the direction given under this subsection and this may include the seizure and destruction of the products in question or the making of any arrangements for such seizure or destruction or both.

(2) The Board shall be notified at the next available meeting of the Board of the service of a prohibition order.

(3) The chief executive shall, in the interest of public health and consumer protection, make such arrangements as he or she considers necessary or appropriate to—

(a) bring the matter giving rise to the prohibition notice to the attention of the public,

(b) notify (by means of any agreed mechanism for doing so, where such a mechanism exists) the competent regulatory authorities in other countries where the food is on sale or is or has been distributed for sale of the prohibition order.

(4) A prohibition order shall take effect—

(a) where the order so declares, immediately the notice is received by the person on whom it is served,

(b) in any other case—

(i) where no appeal is taken against the prohibition order, on the expiration of the period during which such an appeal may be taken or the day specified in the prohibition order as the day on which it is to come into effect, whichever is the later, or

(ii) in case such an appeal is taken, on the day next following the day on which the prohibition order is confirmed on appeal or the appeal is withdrawn or the day specified in the prohibition order as that on which it is to come into effect, whichever is the later.

(5) The bringing of an appeal against a prohibition order which is to take effect in accordance with subsection (4)(a) shall not have the effect of suspending the operation of the prohibition order, but the appellant may apply to the Court to have the operation of the prohibition order suspended until the appeal is disposed of and, on such application, the Court may, if it thinks proper to do so, direct that the operation of the prohibition order be suspended until the appeal is disposed of.

(6) (a) A person who is aggrieved by a prohibition order may, within the period of 7 days beginning on the day on which the prohibition order is served on him or her, appeal against the order to a judge of the District Court in the district court district in which the prohibition order was served in the prescribed manner and in determining the appeal the judge may—

(i) if he or she is satisfied that in the circumstances of the case it is reasonable to do so, confirm the prohibition order, with or without modification, or

(ii) cancel the prohibition order.

(b) Where on the hearing of an appeal under this section a prohibition order is confirmed, notwithstanding subsection (4) the judge of the District Court by whom the appeal is heard may, on the application of the appellant, suspend the operation of the prohibition order for such period as in the circumstances of the case the district judge considers appropriate.

(7) A person who appeals against a prohibition order or who applies for a direction suspending the application of the prohibition order under subsection (5) shall at the same time notify the Authority or official agency of the appeal or the application and the grounds for the appeal or the application and the Authority or official agency shall be entitled to appear, be heard and adduce evidence on the hearing of the appeal or the application.

(8) The chief executive or other person, being an employee of the Authority, or member of the Board, authorised by the Board in this connection, may, for stated reasons, revoke or vary a prohibition order made in accordance with this section and the Board shall be notified at the next available meeting of the Board of any such revocation or variation and the reasons therefor.

(9) (a) Where a prohibition order has been served and activities are carried on in contravention of the prohibition order, the High Court may, on the application of an authorised officer, by order prohibit the continuance of the activities.

(b) An application to the High Court for an order under this subsection shall be by motion and the Court, when considering the matter, may make such interim or interlocutory order (if any) as it considers appropriate and the order by which an application under this subsection is determined may contain such terms and conditions (if any) as to the payment of costs as the Court considers appropriate.

55. —(1) Where the Board is satisfied that an authorised officer, or any other member of the staff of the Authority, has discharged his or her duties in pursuance of the functions of the Authority in a bona fide manner, the Board shall indemnify the authorised officer, or such member of the staff of the Authority, against all actions or claims howsoever arising in respect of the discharge by him or her of his or her duties.

(2) A member of the Garda Síochána shall not be liable for any loss or damage occasioned by or in the course of assisting an authorised officer in accordance with section 50 (3).

56. —(1) Any notice required to be served or given by or under this Part shall be addressed to the person concerned and served or given in one of the following ways—

(a) by addressing it to the person by name and delivering it to him or her,

(b) by leaving it at the address at which the person ordinarily resides or carries on business,

(c) by sending it by post in a prepaid registered letter addressed to the person at the address at which he or she ordinarily resides or carries on business,

(d) if an address for the service of notices has been furnished by the person, by leaving it at, or sending it by prepaid registered post addressed to him or her to, that address,

(e) where the address at which the person ordinarily resides or carries on business cannot be ascertained by reasonable inquiry and notice is required to be served on, or given to, him or her in respect of any premises by delivering it to a person over the age of 16 years resident in or employed on the premises, or by affixing it in a conspicuous position on or near the premises, or

(f) where there is a facility for receiving a facsimile of the notice by electronic means at the address at which the person ordinarily resides or carries on business, by transmitting a facsimile of the notice by such means to that address, provided that the notice is also served or given in any of the other ways referred to in this subsection.

(2) Where the name of the person concerned cannot be ascertained by reasonable inquiry, a notice under this Act may be addressed to “the occupier”, “the owner” or “the person in charge”, as the case may be.

(3) For the purposes of this section, a company registered under 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 place of business.

(4) A person shall not at any time during the period 3 months after a notice is affixed under subsection (1)(e) remove, damage or deface the notice without lawful authority.

(5) A person who contravenes subsection (4) shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £500 and, in the case of a continuing offence, to a further fine not exceeding £25 for each day on which the offence is continued.

57. —(1) Proceedings in relation to a summary offence under any food legislation may continue to be brought and prosecuted by the official agency which had responsibility, immediately before the commencement of section 45 , for the enforcement of the food legislation concerned.

(2) Proceedings in relation to a summary offence under any food legislation, committed after the commencement of section 45 , may be also brought and prosecuted by the Authority.