Emergency measures may be taken under Articles 53 and 54 of Regulation (EC) 178/2002, Article 9 of Directive 89/662/EEC and Article 22 of Directive 97/78/EC. The domestic regulations which implement these measures are:
In addition there are powers under:
2 Emergency Measures
Where it is evident that food or feed originating in the EU or imported from a third country is likely to constitute a serious risk to human health, animal health or the environment, and the risk cannot be contained satisfactorily by means of measures taken by a Member State(s) concerned, the Commission, acting4 on its own initiative or at the request of a Member State, must, depending on the gravity of the situation, immediately adopt one or more of the following measures:
In the case of food or feed of EU origin, the suspension of the placing on the market or use of the food or feed, lay down special conditions for the food or feed or any other appropriate interim measure.
In the case of food or feed imported from a third country, the suspension of imports of the food or feed from all or a part of the third country concerned and, where applicable, from the third country of transit, lay down special conditions for the food or feed from all or a part of the third country concerned or any other appropriate interim measure.5
Where a Member State has notified the Commission of the need to take emergency measures, and the Commission has not itself so acted, the Member State may adopt interim protective measures and must immediately inform the other Member States and the Commission of those measures. The Member State may maintain interim measures until EU measures have been adopted.6
Article 9 of Directive 89/662/EEC, which concerns veterinary checks in trade between Member States, and Article 22 of Directive 97/78/EC, which concerns veterinary checks on products from third countries, are still used by the Commission for emergency measures relating to products of animal origin.
Whichever route is taken at an EU level for emergency measures concerning products of animal origin, they take effect in the UK by means of declarations made by the Secretary of State under regulation 35 of the Products of Animal Origin (Import and Export) Regulations 19967 within the EU and regulation 61 of the Products of Animal Origin (Third Country Imports) (England) Regulations 20068 for products from third countries.
In the case of products of non-animal origin, regulation 33 of the Official Feed and Food Control (England) Regulations 20079 provides powers similar to those for products of animal origin.
There remain circumstances in which emergency measures are given domestic effect by use of the power to make emergency orders in Section 2(2) of the European Communities Act 1972.
In EU emergency measures and their domestic counterparts have a limited finite existence which may be as short as a few months.
3 Emergency Control Orders under the Food Safety Act 1990
Under section 13 of the Food Safety Act 1990, if it appears to the Secretary of State that carrying out commercial operations with respect to food, food sources or contact materials of any class or description involves or may involve the imminent risk of injury to health, an ‘emergency control order’ may be made prohibiting the carrying out of those operations.10
It is an offence knowingly to contravene an emergency control order, although the Secretary of State or the FSA may give consent conditionally or unconditionally in a particular case to anything otherwise prohibited by the order and such consent is a defence to any charge of contravening an order, provided any condition(s) attaching to the consent have been met.11
The Secretary of State and the FSA may also give directions for the purpose of preventing the carrying out of commercial operations and do anything which appears to be necessary or expedient for that purpose.
Any person who fails to comply with a direction is guilty of an offence. There is no requirement that a person knowingly fail so this is an offence of strict liability.
If the Secretary of State or the FSA does anything as a consequence of any person failing to comply with an emergency control order or a direction any expenses reasonably incurred may be recovered from that person.12
Where powers under section 9 of the 1990 Act, concerning the inspection and seizure of suspected food, are considered to be equally effective, those powers should be used without resort to an emergency control order.13
4 Emergency Orders under the Food and Environment Protection Act 1985
The Secretary of State has power, under section 1 of the 1985 Act, to make an emergency order designating an area and imposing emergency prohibitions14 when of the opinion that:
There exist or may exist circumstances which are likely to create a hazard to human health through human consumption of food; and
In consequence food which is or may be in the future in an area of land in the UK and/or sea within British fishery limits; or which is or may be in the future derived from anything in such an area, is, or may be, or may become, unsuitable for human consumption.
Food derived from any creature is to be treated for the purposes of the 1985 Act as also derived from any feeding stuff which that creature has eaten and from anything from which any feeding stuff was derived.15
It is an offence to contravene an emergency prohibition or cause or permit another person to do so.16
When an emergency order has been made the Secretary of State or the FSA may consent, either unconditionally or conditionally to the doing in a particular case of anything otherwise prohibited. It is a defence to a charge of contravening an emergency prohibition show that consent had been given and that any condition was complied with.17
The Secretary of State or the FSA may also give directions to any person as appear to be necessary or expedient for the purpose of preventing human consumption of food which is, on reasonable grounds, believed to be, or may be, or may become, unsuitable for human consumption and may do anything which appears to be necessary or expedient. Directions may be given and action may be taken after the emergency order has ceased to be in force.18
It is an offence to fail to comply with a direction or cause or permit another person to do so.19
If the Secretary of State or the FSA does anything in consequence of a failure on the part of any person to comply with, or causing or permitting another person to fail to comply with a direction, any expenses reasonably incurred may be recovered from that person.20
Perhaps the most notable, and longest lasting, use of the power was in 1986 to prevent human consumption of sheep in areas affected by radiation contamination following the Chernobyl nuclear reactor disaster in the former Soviet Union. A total of 9,800 farms were affected in the immediate aftermath and until very recently 335 farms in Wales were still affected. The FSA granted consent to the free movement of sheep in the last affected areas from 1 June 2012 pending formal revocation of the remaining emergency orders.21
5 Ibid., Article 53(1)
6 Ibid., Article 54
11 Ibid., s 13(2) to (4)
12 Ibid., s 13(5) to (7)
13 R v Secretary of State for Health ex parte Eastside Cheese Company  3 CMLR 123
14 The emergency prohibitions are listed in the Food and Environment Protection Act 1985, Schedule 1
16 Ibid., s 1(6)
17 Ibid., s 2(1) and (2)
18 Ibid., s 2(3)
19 Ibid., s 2(4)
20 Ibid., s 2(5) and (6)
21 See, for example, the Food Protection (Emergency Prohibitions) (Radioactivity in Sheep) (Wales) Order 1991, SI 1991/5, as amended.