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Online food sales still need a clear definition and a proper legal framework at EU level to successfully take advantage of the cybermarket and create new opportunities for food business operators in the EU, writes Katia Merten-Lentz of international law firm, Keller and Heckman.

 

This article is powered by EU Food Law – Published on 6 Jan 2020

 

This article is written with support from Thais Payan

 

ANALYSIS

The internet has become a platform for selling food across the globe. However, food standards are lagging behind such developments. This situation could jeopardize both consumer safety and fair competition among the food business operators (FBOs).

 

Online official controls fighting food fraud

Since 2017, the Commission has coordinated a search for illegal food supplements and non-authorized novel foods that constitute major cases of online food fraud.

As online sales do not allow the direct testing of a product’s composition, online traders are often tempted to circumvent the pre-market authorization procedure applied in the EU for novel foods or the national requirements for food supplements .

In order to deal with this fraudulent activity, single contact points have been established for national food control authorities with all major e-platforms offering food. The same contacts have been established with certain Payment Service Providers.

Pursuant to the new Official Control Regulation (EU) 2017/625, control authorities can now buy products online without the need to identify themselves. They now have the legal basis to restrict access to, or even to close, websites as well as to fight food fraud and misleading information.

However, online sales raise legal questions way beyond food fraud issues, which manly focus on food composition and labeling. In practice, it is important for FBOs to have a clear approach regarding the enforcement of general food safety requirements, especially in terms of legal definitions and responsibilities.

 

EU proposal for a definition of online food

Today, e-commerce of food is simply defined in the EU as a ‘distance contract’ i.e. any contract or any means which, without the simultaneous physical presence of the supplier and the consumer, may be used for the conclusion of a contract between those parties.

Various methods of selling are already covered by EU law, including text messaging, phone calls, interactive TV, mail order, and online sale through various channels (own website, trader or retailer’s website, online platforms, social media networks, etc.).

In addition, the European Commission intends to adapt consumer rules to the online world through its Digital Single Market Strategy. Besides the fitness check of consumer and marketing laws and evaluation of the consumer rights directive, the Commission proposed a specific approach for the ‘online marketplace’, defined as a service provider which allows consumers to conclude online contracts with traders and consumers on the online marketplace’s online interface.

However, applying a general definition of e-commerce to online sales of food is not enough to guarantee an efficient protection of the consumer and a fair competition on the European food market in terms of food safety as the allocation of responsibilities through the food chain remains unclear.

 

Food safety requirements applying to online food

According to the EU General Food Law, safety requirements apply to all food business operators (FBOs) at all stages of production, processing and distribution of food and feed.

Any FBO considering or having reason to believe that a food is unsafe should immediately initiate procedures to withdraw it from the market. But online platforms that act solely as third party service providers may not be considered as “food business operators” operating online, since they never own or/and physically handle food products.

In addition, the allocation of responsibilities is limited as information society services (ISS) are not obliged to take action until they are informed of any non-compliant offers made available by third parties via their platforms, which might jeopardize food safety.

As a consequence, some products sold online regularly give rise to serious health concerns.

Enforcing EU agri-food legislation on internet sales and consumer information is expected to boost consumer confidence and strengthen enforcement of EU food chain legislation on online sales.

A closer cooperation among food surveillance authorities can improve fair competition between food business operators throughout the EU. However, online food sales still need a clear definition and a proper legal framework at EU level in order to successfully take advantage of the cybermarket and create new opportunities for food business operators in the EU.