According to a recent decision by the Court of Justice of the European Union (“CJEU”), EU law does not preclude national legislation which allows informing public about food that is not injurious to health, but unfit for human consumption. When informing the public, national authorities are allowed to mention the name of the food and the name or trade name of the food manufacturer, processor or distributor.

The EC Food Safety Regulation (178/2002) provides that food is unsafe if it is injurious to health or unfit for human consumption. The latter case includes food which is unacceptable for human consumption according to its intended use, for reasons of contamination, or through putrefaction, deterioration or decay.

In the case Karl Berger v. Freistaat Bayern (C-636/11) inspection made by authorities led to a finding that game meat processed and distributed by Berger Wild GmbH (“BergerWild”) was unfit for human consumption. The authorities informed BergerWild that they would not inform the public if BergerWild itself informed the public effectively and promptly. BergerWild objected to this proposition and argued that the EC Food Safety Regulation allowed for the public to be informed only where there was an actual threat to health.

However, the CJEU concluded that a foodstuff that does not fulfill the food safety requirements under the EC Food Safety Regulation, may in any event prejudice the interests of consumers, the protection of whom is one of the objectives of food legislation. The CJEU also referred to a provision ordaining that member states shall maintain a system of official controls and other activities as appropriate, including public communications on food safety and risk. Accordingly, national authorities may inform the public thereof, provided that the requirements of professional secrecy are respected.