Hong Kong Regulations

FOOD AND DRUGS (COMPOSITION AND LABELLING) REGULATIONS - REGULATION 5

Offences and penalties

(Past version on 30/06/1997).



*(1) Any person who advertises for sale, sells or manufactures for sale any
food or drug which does not conform to the relevant requirements as to
composition prescribed in Schedule 1 or which is not marked and labelled in
the manner prescribed in Schedule 2 or Schedule 3 commits an offence and is
liable to a fine at level 5 and to imprisonment for 6 months. (L.N. 222 of
1985; L.N. 330 of 1987; L.N. 80 of 1996; L.N. 177 of 1996)

(1A) Any person who sells any food after the date shown as the "use by" date
on food marked or labelled for the purposes of Schedule 3 commits an offence
and is liable to a fine at level 5 and to imprisonment for 6 months. (L.N. 80
of 1996; L.N. 177 of 1996)

(1B) Any person who, not being the manufacturer or packer originally
responsible for so marking or labelling the food, alters, removes or
obliterates the labelling of any food or drug marked or labelled for the
purposes of Schedule 2 or Schedule 3 commits an offence and is liable to a
fine at level 5 and to imprisonment for 6 months. (L.N. 80 of 1996; L.N. 177
of 1996)

(2) In any proceedings for an offence against paragraph (1) in relation to the
publication of an advertisement, it shall be a defence for the defendant to
prove that, being a person whose business it is to publish, or arrange for the
publication of, advertisements, he received the advertisement for publication
in the ordinary course of business.

(3) In any proceedings for an offence against paragraph (1) in relation to the
possession for sale of any prepackaged food which is not marked or labelled in
the manner prescribed in Schedule 2 or Schedule 3, it shall be a defence for
the defendant to show that before offering the food for sale he would have
taken all reasonable steps to ensure that the food was so marked or labelled.
(L.N. 222 of 1985; L.N. 80 of 1996)

(3A) Without affecting paragraph (3), in any proceedings for an offence
against paragraph (1) in relation to any prepackaged food which is not marked
or labelled in accordance with paragraph 2(4E) of Schedule 3, it shall be a
defence for the defendant to show that he-

   (a)  reasonably and in good faith relied on information provided by the
        importer or manufacturer as to whether the food consisted of or
        contained any substance referred to in that sub-paragraph; or

   (b)  (i) has used his best endeavours to obtain such information from the
        importer or manufacturer but such information is not available; and

        (ii)   has in good faith marked on the food that he does not know
               whether the food consists of or contains any such substance.
               (L.N. 85 of 2004 and L.N. 139 of 2004))

(4) In any proceedings for an offence against paragraph (1B), it shall be a
defence for the defendant to prove that each alteration, removal or
obliteration in respect of which the offence is alleged was effected under the
written authorization of a person capable of effecting that alteration,
removal or obliteration without contravention of that provision. (L.N. 80 of
1996)
___________________________________________________________________________
____ Note:

* The operation of this regulation is affected by the transitional provision
in section 3 of the Food and Drugs (Composition and Labelling) (Amendment)
Regulation 2003 (L.N. 226 of 2003) and the transitional provision in section 6
of the Food and Drugs (Composition and Labelling) (Amendment) Regulation 2004
(L.N. 85 of 2004).

The text of section 3 of L.N. 226 of 2003 is reproduced below--

"3. Transitional provision

It shall not be an offence under regulation 5(1) of the Food and Drugs
(Composition and Labelling ) Regulations ( Cap 132 sub. leg. W) ("the
principal Regulations") to advertise for sale, sell or manufacture for sale on
or before 18 June 2005 any prepackaged food containing any additive which is
listed otherwise than by the appropriate category as specified in paragraph
2(6) of Schedule 3 to the principal Regulations as amended by this Regulation
in circumstances where that additive is listed by the appropriate category as
specified in what would have been paragraph 2(6) of Schedule 3 to
the principal Regulations had this Regulation not come into operation."

The text of section 6 of L.N. 85 of 2004 is reproduced below--

"6. Transitional provision

It shall not be an offence under regulation 5(1) of the Food and Drugs
(Composition and Labelling ) Regulations ( Cap 132 sub. leg. W) ("principal
Regulations") to advertise for sale, sell or manufacture for sale on or before
9 July 2007 any prepackaged food which is not labelled in accordance with
paragraphs 2 and 4 of Schedule 3 to the principal  Regulations as amended by
this Regulation, if that prepackaged food is labelled in accordance with what
would have been the requirements of paragraphs 2 and 4 of Schedule 3 to
the principal Regulations had this Regulation not come into operation. (L.N.
139 of 2004)".