Food Law (Food)
In terms of sales, the food manufacturing industry is the third most important branch of the manufacturing industry in Germany after the automotive industry and mechanical engineering; in terms of the number of employees, it ranks fourth [https://www.bmel-statistik.de/ernaehrung-fischerei/ernaehrungsgewerbe/].
This analysis does not include the important branches of food (retail) trade and gastronomy. Beyond this economic data, we believe that the importance of the food industry as a provider of the “means of life” cannot be overstated. This fact also motivates us to focus our activities on food law issues.
There is a wide range of requirements for the production and treatment of food. The safety of the consumer is always the first priority. In addition, many regulations serve the purpose of quality assurance.
Food safety is served, for example, by regulations on the handling of animal foods, such as regulations for milk or milk products and for fresh meat, meat preparation or meat products. Some types of treatment, such as food irradiation, are regulated by law. The use of certain treatment technologies in the production of and handling of foods can result in these products requiring specific approval as so-called novel foods before they can be marketed. However, regulations on the composition of foods can also serve to protect the name of the food as a quality characteristic or to ensure compliance with the requirements for fair information practices. For example, certain designations may only be used for products if they have a specified treatment and/or composition. This applies, for example, to cheese and cheese products, to meat products (such as salami, mettwurst, white sausage) to cocoa and chocolate products, jams or fruit juices. If the requirements for the treatment and composition of the food are not met, the food may not be marketed with these designations.
In the production and treatment of food, manufacturers must comply with the requirements of Good Manufacturing Practice (GMP). GMP means that a company subjects its production processes to quality assurance measures, which regularly include the establishment of a HACCP concept. HACCP stands for “Hazard Analysis and Critical Control Points”. In order to set up an HACCP concept, the food business operator carries out a hazard analysis, identifies and defines the critical control points for food safety (e.g. compliance with a certain temperature specification and time for pasteurisation). The food business operator must monitor and document these control points and initiate corrective actions in the event of deviations. The HACCP concept must be checked for efficiency at regular intervals.
Mandatory food information is based on horizontal and vertical labelling law.
Horizontal labelling law includes information that applies to all foods, such as the mandatory information according to Article 9 of Regulation (EU) No 1169/2011 (Food Information Regulation – FIR). This includes the name of the food, the list of ingredients, allergen information, quantitative information on the ingredients (so-called QUID), the net quantity, the best-before date or the use-by date, if applicable storage or use conditions, the name or company and address of the food business operator, possibly the country or place of origin, instructions for use if it would be difficult to use the food appropriately without such instructions, the indication of the existing alcohol content for beverages and a nutrition declaration.
Different regulations apply to non-prepacked foods. Likewise, special requirements for the provision of mandatory food information apply to foods sold at a distance.
In addition, for a food category special regulations may exist that prescribe certain additional labelling elements (so-called horizontal labelling law). These include, for example, the following category of products, all of which are subject to specific labelling requirements (A-Z): flavourings; dietary foods/foods for particular persons, which include infant formula and follow-on formula cereal-based and other complementary foods, foods for special medical purposes, and daily rations for weight-control diets; chicken eggs; vinegar; fishery and aquaculture products; fresh meat, e.g. fresh poultry or ground meat; fresh fruits and vegetables; fruit and vegetable juices, soft drinks, and similar products; vegetables and vegetable products; honey; cocoa and chocolate products; caseins and caseinates; table salt substitutes; jams and similar products; foods of animal origin; food enzymes and food enzyme preparations; milk and milk products; food supplements; fruit and fruit products; edible fats, e.g. butter, margarine, mixed fats; edible oils, e.g. olive oil; spirits; confectionery; tea, tea-like products and their extracts; water, mineral and table water; wine products such as wine or sparkling wine; sugar; and additives marketed as such.
Often, it is not only a matter of whether the information is provided, but there are also certain additional legal requirements with regard to the form of presentation and location of the information on the food label, on the shelf or on the Internet.
According to Art. 2(a) of Directive 2006/114/EC, advertising is any statement made in the exercise of a trade, business, craft or profession with the aim of promoting the sale of goods or the provision of services, including immovable property, rights and obligations. This definition also applies in the context of food advertising. Because the definition is so broad, advertising can take place, for example, on food labels, in handouts, on the food shelf, on the Internet, on television, or on social media. It is always the case that misleading advertising is prohibited. This follows on the one hand, from the regulations on fair information practices in Art. 7 Regulation (EU) No 1169/2011 (Food Information Regulation – FIR), and, on the other hand, from the relevant regulations of Directive 2006/114/EC on misleading and comparative advertising, which was transposed into German law by various regulations in the Act against Unfair Competition. Violations of the prohibition of misleading advertising trigger claims for injunctive relief and damages from competitors and are subject to fines and penalties.
A functional benefit of a food may only be claimed if the chosen claim complies with the regulations of Regulation (EC) No 1924/2006 (Health Claims Regulation). This regulation distinguishes between nutrition and health claims. Whereas nutrition claims are claims that state, suggest or imply that a food has particular beneficial nutritional properties, e.g. because of the energy it provides or the nutrients it contains, health claims are claims that state, suggest or imply that there is a relationship between a food category, a food and one of its constituents on the one hand, and health on the other.
As a rule, both nutrition and health claims may only be used if a specific authorisation exists for them. Authorised health claims are listed in the Annex to the Health Claims Regulation. Authorised health claims can be found in special regulations, such as Regulation (EU) No 432/2012. Both nutrition and health claims may only be used if the respective conditions of use are fulfilled by the advertised food.
There are consumer groups that have special nutritional needs. These are, for example, infants and young children or patients who require food for dietary management. Foods for persons with special dietary needs are regulated by Regulation (EU) No 609/2013. This regulation forms the framework regulation for infant formulae and follow-on formulae, processed cereal-based foods and baby food, foods for special medical purposes and total diet replacement for weight control. In addition, there are other regulations that govern the specific labelling and composition requirements for the aforementioned food categories.
Organic food may be defined as food that has undergone a specific production process and meets certain compositional requirements. In this context, organic production forms an overall system of farm management and food production that combines environmentally friendly and climate-protecting practices, a high level of biodiversity, the protection of natural resources, and the application of high animal welfare and production standards. In the production of organic food, strict requirements apply to the use of pesticides, fertilisers, feed, additives, agents for cleaning and disinfection, the use of food additives and processing aids, and non-organic ingredients. Only food producers that are approved and certified for organic production are allowed to market food with an organic label.
Why are dates vegan, but figs are not? Neither in Germany nor in the European Union exist specific legal requirements for vegetarian or vegan foods. However, there is a common understanding that vegetarian foods are foods that are not made from products of animal origin for which an animal had to give its life. Foods that do not contain any ingredients of animal origin are referred to as “vegan”. However, vegetarian and vegan foods may contain traces of products of animal origin, which is why trace labelling cannot be not ruled out. The German Food Book Commission (in German: Deutsche Lebensmittelbuchkommission) has issued the guiding principles for vegan and vegetarian foods with similarities to foods of animal origin (in German: Leitsätze für vegane und vegetarische Lebensmittel mit Ähnlichkeit zu Lebensmitteln tierischen Ursprungs). They apply, for example, to imitation meat or cheese and contain definitions of terms and characteristics for vegan and vegetarian foods. Returning to the question posed at the beginning, strictly speaking, figs are not vegan because the fruits of the female fig contain a decomposed fig wasp in each fruit. Therefore, figs may only be called vegan if they are fruits without a fig wasp.
What do noni fruit juice and the migratory locust have in common? Both are novel foods. Novel food is defined as any food that has not been used for human consumption to any significant degree in the European Union before May 15, 1997, and that falls into at least one of ten specified categories. These categories include, for example, foods with a new or deliberately altered molecular structure or foods consisting of, isolated or produced from, microorganisms, fungi or algae. Novel foods may only be marketed in the European Union if they have undergone a special approval procedure and have been included in the Union list of approved novel foods. A prerequisite for the approval of a Novel Food is scientific data demonstrating that the Novel Food does not pose a safety risk to human health. Simplified conditions for approval apply to traditional foods from third countries. For them, a notification to the European Commission is required, providing evidence of the history of use as a safe food in a third country. Foods approved as novel foods must generally meet certain legally prescribed requirements for their nature and with respect to their use. Many approved novel foods may only be used in limited quantities as ingredients in other foods.
Food can be distributed via various channels, such as wholesalers, cash & carries, food retailers and also, increasingly so, via distance selling, e.g. via the Internet. Depending on the business model and position in the value chain, specific legal requirements apply to food business operators who distribute food, for example, in the area of food traceability or with regard to approvals or certifications. Also significant are the requirements relating to corporate due diligence, such as hygiene, labelling and composition of food. At the wholesale and retail level, too, it is necessary to draw up concepts for appropriate quality management that take into account the specific risks of each type of distribution. For example, proper storage and handling of food and specific cleaning concepts must be taken into account. However, quality management does not only concern the storage and sales facilities and sales modalities, but starts with the selection of suppliers, the establishment of requirements for suppliers and may also include the performance of analyses to verify the legal conformity of the products. It also involves dealing with customer complaints, analysing errors and, if necessary, taking corrective actions.