Photo of Katia Merten-Lentz

This article was first published at IHS Markit (subscription required), 3 September 2020

 

The internet has become a platform for selling food across the globe. This phenomenon has even increased with the COVID-19 pandemic. However, some malevolent operators use the current crisis as a business opportunity and have freed themselves from the EU food legislation, as Katia Merten-Lentz, partner at international law firm Keller and Heckman, and associate Caroline Commandeur write.

More and more products sold online claim they protect against infection by coronavirus. However, those claims are not supported by scientific evidence, and those products are marketed illegally. They may even pose safety risks when composed, for example, by non-authorized novel foods.

This situation could jeopardize both consumer safety and fair competition among the food business operators (FBOs). In order to deal with this fraudulent activity, the European Commission has called on Member States to reinforce their vigilance and adapt their control activities on online sales on advertising related to immune system and COVID-19.

It must be recalled that the FIC Regulation prohibits the attribution of any food the property of preventing, treating, or curing a human disease, or to refer to such properties. In addition, health claims, which state, suggest, or imply that a relationship exists between a food and health must be specifically authorized by the European Commission, after a scientific assessment of EFSA .

Therefore, claims on food related to COVD-19 are clearly illegal, and only some authorized health claims related to the maintenance of the immune system (e.g.: iron, copper, folates etc.) may be legally used.

Therefore, since mid-April 2020, Member State authorities are asked to trace and identify websites, sellers and operators with illegal practices in the marketing of food and food supplements linked with COVID-19 sold online in the EU, to follow-up non-compliance and fraudulent practices that are identified and to strengthen the cooperation and administrative assistance between national authorities on the control of online sales.

The new Official Control Regulation (EU) 2017/625 can be a helpful tool in this respect, since control authorities can now buy products online without the need to identify themselves. It also provides for 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 also raise legal questions in terms of responsibilities of FBOs. 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. 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.

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.

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.

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.