Public Notification of Food Safety Risks, June 2013

Author:Ms Isabel Foley, Deborah Spence, Orla M. Clayton and Danielle Conaghan
Profession:Arthur Cox
 
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The EU's "General Food Law" (Regulation 178/2002) introduced a number of definitions of food and feed risk in order to bring greater cohesion to food regulation and risk management across the EU Member States. The General Food Law is the cornerstone of food and feed safety law in the EU. It requires competent authorities to make public announcements about food products where there is a serious risk to human health. The recent judgement of the Court of Justice of the EU in the Berger v Bayern case has now clarified the extent to which competent authorities are also entitled (but not required) to make public announcements about food products which are not prejudicial to health but which are unfit for human consumption. If you are a food business operator, these discretionary announcements that disclose brand information and manufacturer details can have disastrous consequences.

In 2006 a German processor and distributor of game meat (Berger Wild GmbH) went into liquidation after the Bavarian Minister for Consumer Protection issued press releases stating that inspections had uncovered that certain Berger Wild products gave off a rancid, nauseous and musty smell and, in certain cases, had become putrid. In addition, the press statements noted unhygienic conditions at certain of Berger Wild's establishments. Berger Wild claimed that these products posed no threat to public health, but the Bavarian authorities deemed them 'unfit for human consumption'. The Bavarian Ministry for Consumer Protection issued the press releases in line with a German law requiring public notification of foodstuffs unfit for human consumption.

In its action for damages allegedly caused by these press releases, Berger Wild claimed that the relevant German law was in conflict with the provisions of the General Food Law, which, they argued, only required (as it then did) notification of the public where food constitutes a serious risk to human health. The Court of Justice of the EU was requested to determine if public notification was only permissible where there was a serious risk to human health, or whether EU Member States were free to adopt additional laws requiring wider public notification of less serious food incidents.

Unsafe Food

Article 14 of the General Food Law contains a detailed definition of 'unsafe food'. Food considered to be either i) injurious to health or ii) unfit for human consumption constitutes unsafe food. In determining whether food is 'injurious...

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