The discovery of Fipronil residue in chicken eggs due to the use of Fipronil as an insecticide in several Dutch and Belgian poultry farms, has provoked investigations by food safety regulators in Europe and worldwide. Consequently, poultry farms were temporarily shut down and distributors removed eggs for sale as a precaution. Recently, the French Ministry of Agriculture published a list of processed foods containing eggs (waffles, …) to be recalled from French supermarkets. Time for an outline of the Belgian legal framework for these interventions by food safety regulators.
The regulated use of Fipronil
Fipronil is a chemical product that is used as an active substance in several plant protection products (pesticides). The European Regulation No. 1107/2009 lays down rules for the authorisation, placing on the market, use and control of plant protection products. The use of Fipronil in pesticides was authorised on the European level on 1 October 2007, and will end on 30 September 2017. It is highly uncertain whether a prolongation of the use of Fipronil will be requested.
Fipronil can also be used legally as an active substance in biocidal products. Biocidal products are used to protect humans, animals, materials or articles against harmful organisms, like pests (e.g. lice, mites…) or bacteria. The use of these substances is regulated by the Biocidal Product Regulation (BPR, Regulation (EU) 528/2012).
Fipronil thresholds for eggs and egg products
The use of these pesticides leaves traces in treated products, called ‘residues’. The European Regulation No. 396/2005 determines the maximum residue levels of pesticides in or on food of plant and animal origin. The amounts of residue found in food must be safe for consumers and must be as low as possible. The maximum residue level is the highest level of pesticide residue that is legally tolerated in or on food when pesticides are applied correctly. The European Commission fixes maximum residue levels for all food products. The maximum residue levels for all food and all pesticides can be found in a database on the Commission website.
In 2012 the European Food Safety Authority recommended lowering the maximum residue levels for Fipronil in eggs. It concluded that a potential long-term consumer health risk could not be excluded. Consequently, the maximum residue level of Fipronil in eggs was lowered from 0.020 mg/kg to 0.005 mg/kg (as from 1 January 2017).
National authorities in the EU control and enforce maximum residue levels by taking samples and checking pesticide levels. In Belgium, these controls are executed by the Belgian Federal Agency for the Safety of the Food Chain (“Federaal Agentschap voor de Veiligheid van de Voedselketen” / “Agence fédérale pour la sécurité de la chaîne alimentaire”).
In compliance with the recommendations of the European Commission, the Belgian Federal Agency has also established a Fipronil reference dose as a threshold for toxicological concern to assess consumer-risk. Based on the toxicological threshold, the Belgian Federal Agency calculated that the maximum concentration of Fipronil in eggs (0.72 mg/kg in eggs or egg products) would not lead to this threshold being exceeded by persons consuming these products.
Market withdrawal or recall of contaminated products
The European General Food Law Regulation No. 178/2002 imposes that food business operator which has imported, processed, manufactured or distributed food, which is not in compliance with the food safety requirements, immediately initiate procedures to withdraw infected products from the market where the food initially left the immediate control of that initial food business operator and to inform the competent authorities thereof. The Belgian food regulator stipulates that eggs, egg products and processed products containing Fipronil residue above the maximum residue level (0.005 mg/kg) need to be withdrawn from the market.
In cases where the Fipronil infected products may already have reached the consumer, the General Food Law Regulation No. 178/2002 obliges the operator to effectively and accurately inform the consumers of the reason for the withdrawal of infected products. If these products can pose a health risk, a recall from consumers will be required for products already supplied to them. The Belgian food regulator announced that when the measured values in eggs and egg products are above the safety threshold (of 0.72 mg Fipronil per kg eggs and egg products), these food products must be recalled.
Current state of affairs
Recently the Belgian food safety regulator issued a statement with detailed guidelines for the withdrawal of contaminated products from the market and the recall of these products from consumers.
In the past weeks, the Belgian Federal Agency also conducted additional controls in stores and restaurants to verify no infected eggs are sold or used. Distributors who were informed by their suppliers of the contamination and who fail to take appropriate measures, risk financial penalties.
Judicial protection and compensation for damages
Producers, distributors and manufacturers of eggs and egg products affected by the measures imposed by the Belgian food regulator, can contest these measures in court, e.g. when they appear to be unnecessary and/or disproportionate. In such cases, compensation could also be demanded.