Published May 3, 2017 at www.eurofoodlaw.com

Around 88 million tons of food are wasted each year in the EU, or 173 kg per capita, per year, with associated costs estimated at €143 billion. The prevention and reduction of food waste is a big challenge for the EU. Katia Merten-Lentz, of international law firm Keller and Heckman, looks at the extent to which the European legislators are tackling the problem.

On 11 April, the European Parliament’s ENVI Committee voted an own-initiative report on “resource efficiency: reducing food waste, improving food safety” as part of the follow-up to the Commission’s Circular Economy Action Plan. This call for better coordination across policy fields and between the Union and Member States already states the need for balance between waste reduction and food safety.

This initiative follows MEPs’ vote in March on four directives on waste reduction and recycling in favour of a review clause calling the European Commission to set legally binding targets by 2020. The proposal also includes a Union-wide food waste reduction target of 30 % by 2025 and of 50 % by 2030 (compared to 2014).

Food waste is caused by a range of factors, at every stage of the food supply chain. One of the main challenges for EU legislation is to involve all the actors in this chain, from initial agriculture production to final consumers.

Food loss at primary production level can result from agricultural constraints such as force majeure events (storms, heat waves, etc.), as well as from price volatility on agricultural markets. At the end of the food chain supply, food wastage is caused by consumer’s behaviour.

Regarding the food industry, the reduction of food waste must balance two objectives: to minimise food waste and to ensure a high level of food safety. On the one hand, the Waste Framework Directive establishes rules on how waste should be managed in the EU. It aims to reduce the environmental impact of waste and to encourage resource efficiency through reuse, recycling and recovery. On the other hand, food safety is ensured by farm-to-table measures provided by regulations covering responsibility, liability, and traceability rules.

State of play of EU legislation tackling food waste

Current EU legislation does not provide for any consistent definition of “food waste” nor a specific hierarchy for the management of unconsumed food.

In practice, food labelling and food donation can effectively prevent food wastage by consumers but they require effective understanding by consumers and good management of food safety by donors.

EU food labelling legislation provides different labels regarding food quality and food safety. ‘Best before …’ indicates the date up to when the food retains its expected quality. When the storage instructions are respected and the packaging is not damaged, the food is still safe to consume after this date. “Use by” dates appear on highly perishable food and indicate the date up to when the food can be eaten safely. But the lack of understanding by European citizens of date marking directly contributes to the waste of safe and edible food.

Although the donation of products past their ‘best before’ date is allowed under EU law, food donors are considered as “food business operators” under the food safety regulation. This implies their full liability regarding food safety, and many actors from the food chain supply may be driven to discard surplus food instead of distributing it to food banks or charity organisations. Moreover, tax exemptions on food donations are not allowed under EU law (VAT Directive).

To offset those issues, several Member States adopted legislation in order to facilitate food donations, by reducing taxes, providing waste hierarchy, adapting food durability and labelling rules or putting into force a “good Samaritan Law”.

In 2016, Italy recognised food banks as the final link in the food chain and limits their responsibility regarding food safety rules. France passed a bill forcing supermarkets to donate unsold food approaching the best-before date.

In the UK, the value of food stuffs close to their ‘best before’ date has been lowed to zero, in order to avoid taxation. But it is still more expensive for British people to donate surplus food than to send it to anaerobic digestion plants.

By adopting their own laws, Member States took different approaches regarding food waste management, such as food donations. This situation compromises the implementation of a harmonised solution at EU level and could make very difficult the adoption of EU measures to tackle food waste.

Future of food waste prevention and reduction

Reducing food waste and fully ensuring food safety rules also means creating legal certainty for food chain supply actors.

Food waste is an economic and an ethical challenge for business operators. Beyond food donation, actors in the sector already put in place communication circuits between them in order to re-use unsold food. Also, the reuse of former foodstuffs as feeds involves many overlaps between feed and food regulations for business operators. More than incentive measures, they need a concrete legal framework to improve those initiatives, fully complying with food safety regulations.

Reducing food waste by 50% in 13 years implies that the EU ensures legal certainty for all actors in the food chain supply. However, the scope of the four amended directives remains narrow and their implementation will still depend on the action of national authorities, within an uncertain timetable.