Guidance for Local Authorities on Grey Market Goods

Officers have a variety of enforcement options available to them to address food law non-compliance. Some of these options are discussed in more detail below, with specific reference to Grey Market Goods.

LAs should consider the most appropriate course of action on a case-by-case basis, in accordance with their enforcement policy.

LAs may wish to consider the provision of information to FBOs to raise awareness and understanding of the legal requirements, assisting with compliance. An example letter to FBOs can be found in Annex 2.

The Food (Scotland) Act 2015 (Compliance Notices) Regulations 2023 provide officers with the power to serve a compliance notice where there is a relevant offence. The Schedule to the regulations details relevant offences, which include those in relation to food additives and food information referred to earlier in this guidance.

The notice requires to include details of the steps to be taken to ensure that the person to whom the notice is issued ceases to commit the relevant offence. These steps will be dependent on the offence, however, may include:

• Reformulation by the manufacturer where a product includes an ingredient which is not permitted or is present above permitted levels. (This is unlikely to be relevant to Grey Market Goods as the manufacturer will not be based in GB).
• Relabelling a product where the composition is in compliance with legislation as it applies in Scotland, but the labelling is not, e.g. where a product contains any of the ‘Southampton Six’ colours without the additional required labelling of ‘may have an adverse effect on activity and attention in children.’.
• Removal from the market where compliance cannot be achieved through other means.

Compliance notices may be a proportionate enforcement tool in many cases, however, as they require the officer to allow a minimum compliance period of 14-days, they would not be appropriate for offences that pose an immediate risk to consumer safety.

Further details are available in the Compliance Notices Guidance.

Where it appears to an officer that a product fails to meet food safety requirements, detention and seizure powers are available under section 9 of the Food Safety Act 1990.

Regulation 16 of the Food Additives, Flavourings, Enzymes and Extraction Solvents (Scotland) Regulations 2013 provides detail on the interpretation of ‘food safety requirements’ in so far as it relates to products containing such ingredients which are not in compliance with the relevant EU regulations.

In effect this means that food additives or foods containing food additives placed on the market, where the use of the food additive does not comply with Regulation 1333/2008, do not meet food safety requirements for the purposes of section 9 of the Food Safety Act 1990.

Detention and seizure powers are also available under section 15B of the Food Safety Act 1990 for contraventions of food information law. This allows for the detention or seizure of food where it appears to an officer that food information law has been contravened. 

Further information on the use of detention and seizure powers can be found in section 19 of the Food Law Code of Practice.

Where a business offers to voluntarily surrender products which do not meet food safety requirements, officers may consider this as an alternative to pursuing formal action.

An officer should only suggest voluntary surrender as an option where they have evidence that the products fail to meet food safety requirements.

Further information on voluntary surrender can be found in section 19.8 of the Food Law Code of Practice.

Article 44 of Regulation (EU) 2017/625 allows for checks to be carried out on goods entering Great Britain (GB) to determine compliance with food law. These checks are not restricted to the point of entry and may be carried out, for example, on consignments at the premises of the operator responsible for the consignment or the place of destination.

Where a consignment does not comply with domestic food law, Article 66 outlines the powers available to officers to place it under official detention and require either its destruction, re-dispatch outside of GB, or special treatment. 

The Official Feed and Food Controls (Scotland) Regulations 2009 provide for the enforcement of these powers in Scotland and require the service of a notice under Regulation 32 where an officer proposes to place a consignment under official detention.

In cases of repeated or serious non-compliance, a report to the Procurator Fiscal may be appropriate.

In addition to dealing with affected product found during an inspection, consideration should be given to whether the business is required to initiate procedures to recall product from consumers or withdraw product from the market in accordance with Article 19 of Regulation 178/2002.

Depending on the nature of the non-compliance and scale of distribution, it may also be necessary to report the incident to Food Standards Scotland. Further guidance on whether the incident requires to be reported can be found in section 8.1 of the Food Law Code of Practice (Scotland).