British Food Journal Volume 46 Issue 9 1944
Article publication date: 1 September 1944
This Order, which is made under Regulation 2 of the Defence (Sale of Food) Regulations, 1943 (S.R. & O. 1943 No. 1553; item No. 1605), and will come into force on January 1st, 1945, specifies the information which must be given on the labels of pre‐packed foods when sold by retail. These requirements also apply on sales otherwise by retail but alternatively the food must be sold unlabelled and the purchaser supplied with a statement giving the required information. Special requirements apply to the disclosure of the vitamin or mineral content of food for which claims are made in labels or advertisements. The Order also provides appropriate defences in cases of infringement, including a defence similar to that provided by the Food and Drugs Act, 1938, where some other person is responsible for the commission of the offence charged. Retail Labelling Requirements.—Subject to the exemptions specified in the First Schedule, pre‐packed food must not be sold (or displayed for sale) by retail unless the label bears a true statement as to the matters mentioned below. The label must be marked on the wrapper or container or securely attached to it. The statement must be clearly legible and placed in a prominent position on the label. If the food is pre‐packed in more than one wrapper or container, the label must be placed on the inner package. A second label must be placed on the outer wrapper or container if the first label is not clearly legible throughout it. (a) Name and Address of Packer or Labeller.—The statement must specify the name of either the packer or the labeller and one of his business addresses. The name and address of another trader may be substituted if the food is packed or labelled for him or on his instructions and he carries on business at any address in the United Kingdom. The above requirement may also be satisfied by placing a trade mark (but not a certification trade mark) prominently on the label. The trade mark must be one of those entered on the Trades Mark Register kept under the Trade Marks Act, 1938 (1 & 2 Geo. 6, c. 22), for that food and the words “Registered Trade Mark” must be associated with it on the label. Table A of the First Schedule provides that the following foods shall be wholly exempt from this requirement: beef or pork sausages or sausage meat and slicing sausage (other than canned); sugar; yeast; unfermented apple juice and soft drinks in solid, semi‐solid or powder form. (b) Names of Foods and Ingredients.—The statement must also specify the common or usual name (if any) of the food and of each ingredient, if the food is made of two or more ingredients. The ingredients must each be given a specific, not a generic, name and must be named in the order of the proportion in which they were used. The ingredient used in the greatest proportion (by weight) must be the first on the list. If the food contains an ingredient made from two or more constituents, the statement must specify those constituents and it will not be necessary to name the ingredient. [See also (vi) below.] It is not necessary to state that the food contains water. The following exemptions from this requirement are given in Table A of the First Schedule: (i) Spices and flavouring essences, whether pre‐packed for sale as such or forming an ingredient of another food, may be designated as spices, etc., without further specifying their common or usual name or their composition. This exemption also applies to colourings, except those pre‐packed for sale as such. (ii) In the case of speciality flour, whether pre‐packed for sale as such or forming an ingredient of another food there is no need to specify ingredients or constituents which are authorised ingredients of National or “M” flour. (iii) Preservatives, as defined in the Public Health (Preservatives, etc., in Food) Regulations, are wholly exempt if the label complies with the requirements of those Regulations, whether the preservatives are pre‐packed for sale as such or form an ingredient of one of the foods specified in paragraph 1 of the Second Schedule to the Regulations. (iv) It is not necessary to specify the ingredients used in the foods specified in Table C. The food must, however, be pre‐packed for sale as such and must comply with the composition requirements of the relevant Control Order listed in the Table. Table C specifies the following foods: Foods for which a standard is prescribed under a Food Standards Order; specified canned fruit; Christmas puddings; fish cakes; jam and marmalade; meat or fish paste; meat roll or galantine; canned ready or prepared meals; canned soup; beef or pork sausages or sausage meat and slicing sausage (not canned); standard saccharin tablets; and sweetening tablets. (v) There is no need to specify the ingredients of the following foods when pre‐packed for sale as such; biscuits, condensed milk as defined by the Public Health (Condensed Milk) Regulations, 1923 and 1927; curry powders; pickles and sauces (except salad cream, mayonnaise and sandwich spread). (vi) When a food mentioned in (iv) or (v) above or in Table B (see below) forms an ingredient of some other food, it may be designated by its common or usual name, without specifying the ingredients. (c) Minimum Quantity.—The statement must also specify the minimum quantity of food in the wrapper or container. This quantity must be expressed according to trade custom in terms of net weight, measure or number. In cases where Section 4 of the Sale of Food (Weights and Measures) Act, 1928, permits the weight of the wrapper or container to be included in the weight sold, the above provision may be complied with by specifying the minimum weight of the food with its wrapper or container. Table A of the First Schedule provides that the following foods shall be wholly exempt from this requirement: biscuits, when sold by the packet or piece at not more than 3d. per unit; condensed milk, as defined above; and dried milk, as defined by the Public Health (Dried Milk) Regulations 1923 and 1927, including sweetened or modified dried milk but not compounded dried milk. (d)Exemptions.— The above provisions do not apply to: (i) foods packed by a retailer for sale on the premises, but there must be no reference to the food on the wrapper or container or on any label printed on, attached to or given with it; (ii) food imported on Government account which is still in the original container or wrapper; (iii) food packed specially for consumption by H.M. Forces or the Forces of H.M. Allies or Co‐Belligerents; (iv) assortments of foods packed for sale as a meal and ready for consumption without cooking, heating, etc.; (v) food intended for export or for use as ships‘ stores; (vi) foods specified in Table B of the First Schedule when pre‐packed for sale as such. Table B specifies the following foods: bread (not including breadcrumbs); butter and milk blended butter; cakes; cheese (including processed cheese, blue vein, soft curd or cream cheese and cheese made from milk other than cow's milk); compound cooking fat; intoxicating liquor, i.e., spirits, wine, beer, porter, cider, perry and sweets and other fermented, distilled or spirituous liquors which cannot be sold with‐out an excise licence; liquid milk; margarine (not including vegetarian butter); meat pies; National Flour and “M” flour; soft drinks if specified in Part I of the First Schedule to the Soft Drinks Order, 1943; still spa water; sugar confectionery, chocolate and chocolate confectionery. (e) Small Packages.—If the wrapper or container holds less than ½ oz. or ½ fluid oz. and, owing to insufficient space it is not reasonably practicable for all the above particulars to be given on the label, it will only be necessary to give those particulars which it is reasonably practicable to specify. The particulars required in (b) must be specified first and those required in (c) must be specified next, in order of priority. The foods specified in Table B of the First Schedule (see above) are exempt from this provision when pre‐packed for sale as such. Labelling Requirement on Other Sales.—On sales of pre‐packed food otherwise than by retail, the seller must either: (a) deliver the food labelled in the manner prescribed for retail sales; or (b) deliver the food unlabelled and furnish the purchaser an invoice or other document within 14 days of delivery. The invoice, etc., must contain a statement of any particulars that may be necessary to enable a retail trader to comply with provisions (b) and (c) of the retail labelling requirements (see above). Pre‐packed food will be regarded as unlabelled only if there is no reference to it on the wrapper or container or on any label printed on or attached to it. The food will not, however, be regarded as labelled merely because the wrapper or container has been marked at packing with reasonable words or marks of identification. This provision, however, does not apply to foods exempted from the retail labelling requirements, including foods specified in Table B of the First Schedule (see (d) above). Defacement of Labels.—Statements on labels placed on a wrapper or container under the above provisions must not be removed, altered or defaced. It will, however, be a defence for the defendant to prove: (a) that the food was in his possession otherwise than for sale; and (b) that there was no intent to deceive. Claims for Vitamins and Minerals in Food.—(a) General Claims: No one, except under certain conditions, may (i) sell any food with a label making a general claim that vitamins or minerals are present in it; (ii) stock pre‐packed food with a similar label; or (iii) publish, or be a party to publishing, an advertisement making a general claim as above. The above provisions apply whether the label is attached to or printed on the wrapper or container or not. The conditions referred to above are as follows: (i) If a claim that vitamins are present is made, the food must contain one or more of the substances specified in Part I of the Second Schedule, i.e. Vitamins A, B1, B2 (Riboflavin), C and D; Carotene; or Nicotinic Acid, Nicotinic Acid Amide and the active derivatives. (ii) If a claim that minerals are present is made, the food must contain one or more of the substances specified in Part II of the Second Schedule, i.e., Calcium, Iodine, Iron or Phosphorus. (iii) The label or advertisement must specify the minimum quantity of each substance in each oz. or fluid oz., expressed in the appropriate units specified in Parts I and II of the Second Schedule. (b) Particular Claims.— The Order also provides that no one shall: (i) sell any food with a label which claims or in any way suggests that a particular substance specified in the Second Schedule is present in it; (ii) stock pre‐packed food with a similar label; or (iii) publish, or be a party to publishing, an advertisement making a particular claim or suggestion as above. These claims or suggestions may, however, still be made if the label or advertisement specifies the minimum quantity of each substance contained in each oz. or fluid oz., expressed in the appropriate units specified in the Second Schedule. The above provisions apply whether the label is attached to or printed on the wrapper or container or not. (c) Exemptions.—These provisions do not apply to: (i) fruit or vegetables, excluding those which have been canned or bottled or those preserved otherwise than by freezing, gas or cold storage or other storage methods; (ii) food served by a caterer as a meal or part of a meal; (iii) food imported on Government account which is still in the original wrapper or container. In case (iii), however, the provisions relating to advertisements are still applicable. (d) Defences.—In proceedings relating to the publication of an advertisement, it will be a defence for the defendant to prove that his business is to publish or arrange for the publication of advertisements and that he received it for publication in the ordinary course of business. In similar proceedings against the manufacturers, producers or importers of the advertised food the onus of proving that he did not publish, and was not a party to publishing, the advertisement is on the defendant. In proceedings for a failure to specify the required particulars in an advertisement, it will be a defence for the defendant to prove that he took all reasonable steps, by pre‐packing, to see that it would not be sold without an appropriate label. Deficiencies of Weight or Measure.—In proceedings for infringement of the labelling requirements relating to the weight or measures of pre‐packed articles of food, the Court must disregard inconsiderable variations in the weight or measure of single articles and take into account (a) the average weight or measure of a reasonable number of other articles of the same kind (if any) sold or stocked by the defendant on the same occasion and (b) all the circumstances of the case. In similar proceedings relating to weight, measure or number, it will be a defence for the defendant to prove: (a) that the offence was due to a bona fide mistake or accident or to other causes beyond his control and that he took all reasonable precautions to prevent it; or (b) that the alleged deficiency was due to unavoidable evaporation, although due care had been taken to avoid it. Proceedings for a deficiency in the weight or measure of any pre‐packed food or in the number of articles in a wrapper or container may be instituted, in England, by the local Weights and Measures Authority, and, in Northern Ireland, by the Ministry of Commerce. Inaccurate Statements, etc.—In prosecutions relating to the inaccuracy or omission of a particular required to be shown on a label or statement, it will be a defence for the defendant to prove: (a) that he bought the food in the wrapper or container in which it was sold from a person carrying on business at an address in the United Kingdom, and that the wrapper or container had remained unopened; (b) that the particular in question was shown on (or omitted from) the label or statement at the time of purchase; and (c) that he had no reason to believe that there was any infringement. The defendant, within fourteen days of the service of the summons (or in Scotland, the complaint), must send the prosecutor a copy of the label or statement with a notice stating that he intends to rely on it and giving the name and address of the person from whom he received it. A similar notification must be sent to the person who gave him the label or statement and he is entitled to appear in Court and give evidence. A defendant who is an employee may also rely on the above defence. Act or Default of Another.—A defendant who is prosecuted under the Order may allege that the offence was due to the act or default of another person. He is entitled to make this person a party to the proceedings but must first lay an information and give at least three clear days' notice to the prosecution. If the original defendant's allegation is proved, the second defendant may be convicted of the offence. The original defendant will then be entitled to an acquittal if he can prove that he used all due diligence to comply with the provisions in question. Both the prosecution and the second defendant will have the right to cross‐examine the original defendant and his witnesses and to call rebutting evidence. The Court may make any order it thinks fit for payment of costs by one party to another. If the Minister or other enforcing authority is reasonably satisfied that an offence for which one defendant might be prosecuted is due to the act or default of a second defendant and that the first defendant could establish the above defence, he may prosecute the second defendant without taking a preliminary prosecution against the first. The second defendant may then be convicted of the offence with which the first defendant might have been charged and may be awarded similar punishment. Special provision is made for a similar procedure under the Law of Scotland. Analysts' Certificates.—In proceedings for infringement, the production by one of the parties of a certificate from a Public Analyst or the Government Chemist will be sufficient evidence of the facts stated in it, unless the other party requires that the Analyst shall be called as a witness. A copy of the Analyst's certificate supplied by one party to the other is admissible in evidence without further proof. If the prosecution intends to produce a certificate, a copy must be served with the summons (or, in Scotland, the complaint). A defendant who intends to produce a certificate or require the Analyst to give evidence must give the other party at least three clear days' notice of his intention. The Court is entitled to adjourn the hearing on such terms as it thinks proper if there is any failure to comply with these requirements. In Northern Ireland, “Government Chemist” means the Government Chemist for Northern Ireland. Other Provisions.—The Order also contains various provisions for securing its application under the law of Scotland and Northern Ireland. The provisions of the Order are subject to any directions, licences or authorisations given by the Minister. Holders of licences or authorisations must comply with every condition imposed. The Order will come into force on January 1st, 1945. Definitions.—“Food” means any article used as food or drink for human consumption and includes any substance intended for use in the composition or preparation of food, any flavouring, sweetening matter or condiment and any colouring matter intended for use in food. An article is not to be deemed not to be food merely because it can also be used as a medicine. Save as otherwise provided, the description or definition of food given in an Order of the Minister will apply for the purposes of this Order. If described or defined in more than one Order, the description or definition given in a Price Control Order will be applicable. “Pre‐packed” means packed or made up in advance ready for retail sale in a wrapper or container. Wrapped or packed food found on premises where that food is packed, kept or stored for sale will be deemed to be pre‐packed unless the contrary is proved. The contrary cannot, however, be proved merely by showing that the food had not been labelled in accordance with the provisions of the Order. “Pre‐pack” is to be correspondingly interpreted. “Retail Sale” means any sale to a person buying otherwise than for resale but does not include a sale to a caterer for his catering business or a sale to a manufacturer for his manufacturing business. “Advertisement” includes any notice, circular, label, wrapper or other document and any public announcement made orally or by a means of producing or transmitting light or sound. References to a label marked on a wrapper or container include references to any legible marking, however effected. “Food Imported on Government Account” means food imported into the United Kingdom for defence purposes, which was the property of, or consigned directly to, His Majesty or a Government Department, or their agents. “Public Analyst” has the same meaning as in the Food and Drugs Act, 1938, [and the corresponding Acts in force for Scotland and Northern Ireland.] References to Orders or Regulations refer to those Orders or Regulations as subsequently amended or replaced.
(1944), "British Food Journal Volume 46 Issue 9 1944", British Food Journal, Vol. 46 No. 9, pp. 81-90. https://doi.org/10.1108/eb011392
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