With ongoing European efforts to update the General Food Law and increase transparency in the risk assessment process for food products, Katia Merten-Lentz, a legal expert with international law firm Keller and Heckman, discusses the current state of play and looks to the future of food regulation in the EU.
The EU Regulation 178/2002, known as the General food law (the GFL), is the cornerstone of European food law, but also of the free movement of food throughout the European Union.
The general principles of food safety set out therein form the horizontal general framework that applies to the entire food production chain, from farm to fork. Even though the GFL is largely supplemented by sectoral regulation, it provides for key principles such as: all rules applicable to foodstuffs must be based on a risk assessment.
The GFL has been adopted following the 90’s food crisis. More than 20 years after the entry into force of this text, the Commission launched, in 2014, a “regulatory fitness and performance program” (so-called REFIT) to analyze its relevance and effectiveness, to be possibly followed by a reform.
EU REFIT and report
On January 15th 2018, the Commission reported positive results regarding the relevance of the provisions.
However, the Commission highlighted a number of inconsistencies in the application of the regulation, such as different national interpretations, and the variation in the level of penalties imposed by the national authorities. This remains a factor of legal uncertainty for food business operators.
The Commission also identified a need of simplification of food labeling rules. In particular, the Commission pointed out the slow pace of authorization procedures concerning additives, novel foods, health claims or additives for animal feed. This hinders the smooth market entry of innovative food products, and in doing so, hinders innovation itself.
In parallel, the Commission raised another important issue regarding the transparency in risk assessment. In the Commission’s view, the possibility of strengthening the transparency, reliability and independence of studies underpinning EFSA’s assessments, while protecting legitimate confidential business information, should be further explored.
Targeted reform proposal submitted by the European Commission
As a next step, the Commission launched a targeted revision of the GFL with the aim to reinforce the confidence of Europe’s citizens in the EFSA application process, notably with to sensitives issues, such as GMO or food additives. In this respect, the Commission published a roadmap followed by a Proposal for a Regulation on the transparency and sustainability of the EU risk assessment in the food chain.
The Proposal suggests a significant budget increase for EFSA but at the same time recommends to strengthen transparency and risk communication to citizens. Indeed, in several occasions, there have been divergences between Union and national risk assessors, which had a negative impact on public perception. Therefore, the Proposal calls for a promotion of public awareness and better explanation of scientific opinions to citizen.
On 11 December 2018, the European Parliament discussed the initial Proposal and adopted amendments as MEPs called for a more “science-based approach”. The MEP debate was in particular driven by intense discussions relating to transparency and divisions ran on the relation between industry’s competitiveness and the appropriate level of transparency for citizens.
Following the December discussion’s, MEPs finally decided that studies should be made available to the public during the risk analysis rather than at the time application or when the opinion is delivered, and they agreed on which criteria should be applied for deciding what information may be considered confidential.
The day after, on 12 December 2018, the Committee of Permanent representatives (Coreper) agreed on the Council position, paving the way for starting the trilogies. A provisional agreement should be issued by the end of February. Obviously, the decision process is closely followed by the food industry, whose interests are highly involved.
This week, the Parliament and Council approved the Commission’s proposed ESFA reforms in the conclusion of trialogue discussions. The provisional agreement will now have to formally be adopted both the European Parliament and the Council.
This article was first published in FOODnavigator.com on February 14, 2019.
 COM (2018) 179: Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the transparency and sustainability of the EU risk assessment in the food chain amending Regulation (EC) No 178/2002 [on general food law], Directive 2001/18/EC [on the deliberate release into the environment of GMOs], Regulation (EC) No 1829/2003 [on GM food and feed], Regulation (EC) No 1831/2003 [on feed additives], Regulation (EC) No 2065/2003 [on smoke flavorings], Regulation (EC) No 1935/2004 [on food contact materials], Regulation (EC) No 1331/2008 [on the common authorization procedure for food additives, food enzymes and food flavorings], Regulation (EC) No 1107/2009 [on plant protection products] and Regulation (EU) No 2015/2283 [on novel foods], COM/2018/0179 final – 2018/088 (COD) https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=COM:2018:179:FIN