European and national regulators are becoming increasingly involved in decisions to recall products, according to a November 2006 report by risk and insurance firm MARSH.Managing liability in the food and beverage sector claims that 60 per cent of all food and non-food product recalls were government enforced in 2005.

However, the report also concludes that the appetite for regulators to become involved in such decisions varies between member states, creating an uneven playing field across the EU. For example, in 2004, the Italian government called for the withdrawal of four times as many food products from retailers as the French government. Since the primary objective of regulators is consumer safety, the report argues, ‘little distinction may be made between safe and unsafe levels of contamination when reaching a recall decision.’

The report found that accidental contamination of food and drink products remains a major risk for the industry. It also argues that, despite rising food safety standards across Europe, a spate of high profile food contamination incidents has brought industry practices under the spotlight. For these reasons, the report advises, companies should re-examine potential causes of contamination and improve their recall capabilities where necessary. Companies should also look carefully at their product liability insurance to ensure that it is comprehensive to their needs.

GMOs, obesity and sabotage are singled out as particular problem areas for the future. Companies holding out their products as being GMO free could face litigation if they are later found to contain such substances, and rising obesity levels around the western world are already leading to increased regulatory supervision. Finally, sabotage, either by disgruntled employees or through terrorism is also a growing risk.

The report concludes that product recalls in the EU are likely to increase as new legislation enters into force and media and government scrutiny on the food industry continues to grow.

EU

Regulations on health and nutrition claims and addition of minerals and vitamins A long awaited EU regulation to harmonise rules on nutrition and health claims was published in the Official Journal on 30 December 2006. However, in an unusual development, the wrong version of the regulation was sent to print. Instead of the final text agreed between parliament and council last year, the council’s common position on the regulation was printed. A corrigendum was published on 18 January 2007 to rectify the error.

The mistake compounds an earlier problem that had delayed publication of the regulation. The final text omitted important changes to the comitology procedure agreed last year. The new rules will give the European Parliament a right of scrutiny over measures adopted under the regulation. Further amendments will be required to correct this issue and the relevant text has had its first reading before the parliament. The new regulation in its current form entered into force on 19 January, and will apply from 1 July 2007.

The new regulation governs nutrition and health claims made in food advertising, presentation and labelling to allow consumers to make ‘informed and meaningful choices’. Claims must not be false, ambiguous or misleading; give rise to doubt about the safety and/or nutritional adequacy of other foods; or encourage excess consumption of food.

In particular, the new regulation introduces specific criteria for the use of nutrition claims (eg ‘low fat’) and health claims (eg ‘strengthens the body’s defence system’).

For example:

  • a product claiming to be ‘high in fibre’ has to have at least 6g of fibre per 100g net weight;
  • a ‘light’ or ‘reduced fat’ claim can only be made where the product contains at least 30 per cent less fat than a similar ‘full fat’ product; and
  • a variety of ‘vague’ health claims, reference to and endorsement by medical practitioners, weight control or slimming claims will be prohibited. Certain claims will need specific pre-authorisation.

Most controversially, and as a result of scientific advice from the European Food Safety Authority (EFSA), the Commission will fix nutrient profiles based, in particular, on the content of fat, saturated fatty acids, sugar and salt in a product. The use of nutrition and health claims will be restricted on products deemed to contain excessive levels of these constituents.Member states have begun compiling national lists of nutrition and health claims to be submitted to EFSA for addition to the Community list of permitted claims.