Legal Developments
The BSE Emergency Act
Additional Measures
Comment
On November 26 2000 Germany was faced with its first official case of bovine spongiform encephalopathy (BSE). About three months later, on February 23 2001, the number had increased to 39 confirmed cases. As a result of growing pressure on the federal ministers of health and agriculture due to allegations of mismanagement in dealing with the spread of BSE, both resigned in January 2001. Renate Künast, the co-leader of the party of Alliance 90/The Greens took over the reorganized Ministry of Agriculture, which is now also responsible for consumer protection issues and which has been renamed the Ministry for Consumer Protection, Food and Agriculture. As a result of a 'crash course' initiated by the new minister, there has been a stream of legislation on BSE issues.
The legal measures implemented in an effort to combat the spread of BSE and to ease market pressure can be outlined as follows.
Amendment of the Product Liability Act
As of December 1 2000 primary agricultural products and game are subject to the Product Liability Act, which imposes liability to pay compensation for damage caused by a defective product even if the consumer cannot establish fault on part of the producer. This amendment is based on Directive 1999/34/EC, which aimed to restore consumer confidence in the safety of agricultural products.
Revised age limit for testing of bovine animals
An ordinance which took effect on January 31 2001 has lowered the age limit for mandatory BSE testing of bovine animals subject to slaughter for human consumption to 24 months. This goes beyond the EU regulation, under which the age limit for testing is still 30 months.
Definition of 'specified risk material'
The question of whether specified risk material is suitable for human consumption is dealt with in the German Ordinance on Meat Hygiene, which defines 'risk material' as the skull (including the brains and eyes), the tonsils and the spinal cord of bovine animals aged over 12 months. In addition, the intestines of bovine animals of all ages are declared unsuitable for human consumption.
German law prohibits the marketing of meat that is unsuitable for human consumption. Specified risk material is no longer 'food' in a legal sense, but instead is subject to the provisions of the Act on the Disposal of Animal Carcasses.
A debate is underway as to whether the European-based definition of 'specified risk material' should be extended in order to improve consumer protection. The Federal Institute for the Health Protection of Consumers and Veterinary Medicine has suggested that the whole vertebral column be defined as risk material and that the definitions be extended to apply to animals of all ages. There will most likely be new ordinances on this subject in the near future.
Slaughtering techniques
Another issue under discussion is the safety of slaughtering techniques for cattle. The German Ordinance on Meat Hygiene already prohibits a particular method involving laceration of the central nervous tissue after stunning. The key question of how certain other slaughtering techniques could be improved in order to minimize the risk of contamination could also be the subject of new legislation in Germany in the near future.
Disposal of animal meal
As a result of the implementation of the Act on the Prohibition of Feeding of Animal Meal of December 1 2000, there are extensive stocks of animal meal, animal fats and fodder in Germany (according to reports of the German federal states, these amount to some 181,000 tons). The estimated costs of proper disposal would run to approximately DM190 million. The federal government has now offered to pay one-third of the estimated total costs and expects the German states to assume another one-third share. It is hoped that an administrative agreement between the federal government, the German states and representatives of the animal food producing industry will be reached as soon as possible.
Purchase for destruction scheme
The federal minister of consumer protection has declared that Germany will participate in the EU 'purchase for destruction' programme set up in order to minimize the alarming surplus of cattle and meat on the EU market. According to current estimates, it is expected that in Germany approximately 400,000 cattle will be slaughtered and disposed of as a result of this project.
The BSE Emergency Act became effective on February 22 2001. This new legislation makes substantial changes to existing BSE-related legislation, and includes amendments to the Feed Ban Act, the Act on Disposal of Animal Material and the Act on Communicable Diseases in Animals.
The major issues dealt with in the new BSE emergency legislation are as follows.
Authorization for emergency ordinances
The federal government is given extensive powers to move rapidly on health measures for consumer protection. The emphasis is on precaution. Imminent danger and specific hazards to people are no longer statutory prerequisites for governmental BSE ordinances, and such ordinances can now be issued without the approval of the Federal Council, which represents the states at the federal level. Emergency BSE ordinances can be issued for a limited period of six months. It is expected that the minister for consumer protection will issue a number of ordinances based on the new legislation.
Slaughter of entire herds of cattle
The legislation authorizes the minister for consumer protection to decide whether entire herds of cattle must be slaughtered upon discovery of a single case of BSE.
Criminal provisions
The legislation implements strict penalties for anyone who intentionally or negligently continues to use animal remains in feed. Minor violations of the law are defined as administrative offences.
In addition to the new emergency legislation, the Federal Council demanded further measures to fight BSE. State leaders said they wanted more BSE-related research, stricter control of the ban on animal-based feed and stiffer penalties for any violations. State premiers were also united in their call for the federal government to foot the bulk of the BSE-related costs. The states want the federal government to carry 60% of the bill, leaving them to cover the remaining 40%.
The legal implications have not only increased for those who manufacture, import or supply beef products and animal feed. There is also a stream of new legislation on regulatory measures for the pharmaceutical industry, which produces blood or plasma-derived medicinal products, as it is still unknown whether BSE can be transmitted via blood or blood products. Both industries must take precautionary measures to ensure the safety of their products.
There does not appear so far to be any BSE-related litigation in Germany. However, one German lawyer has already announced his intention to help German farmers, whose industry is plagued by the BSE crisis, to seek millions in damages via litigation in Germany and in the United States.
For further information on this topic please contact Uwe Froehlich or Detlef Hass at Lovells by telephone (+49 89 290 120) or by fax (+49 89 290 12 222) or by e-mail ([email protected] or [email protected]).
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