How will the Novel Food Regulation affect the way insect-based food is marketed in the EU?
There is now more legal certainty for ten insect species, the distribution of which is already permitted in some EU countries. Since the amended Novel Food Regulation covers insect-based foods, they may be marketed throughout the EU on the basis of transitional provisions.
The revised EU Novel Food Regulation has been in force since the beginning of 2018. Among other things, it significantly expands the scope of application for animal foodstuffs, provided that they were not on the menu before 15 May 1997 in the EU. These include, above all, insects and parts of them, which have only been traded as a sustainable food source and "future food" in our latitudes for some years now. Their distribution as a foodstuff has been controversially discussed in Germany so far. Unjustifiably so, because the legal situation was and is clear: a distribution was and remains permissible under certain conditions.
So far, there have been no special legal regulations for edible insects in the food sector at EU level. The old Novel Food Regulation applicable until 31 December 2017 considered only "food ingredients isolated from animals" as potentially novel, and therefore subject to authorisation or notification. The term "isolated", however, requires the targeted enrichment of a certain animal component - such as a protein - by means of selective extraction. Entire animals, i.e. insects or their larvae, were just as little included as the parts of the body separated from them. A mere kitchen-like treatment of insects by, for example, dividing, separating, boning, finely comminuting, grinding, skinning, cutting and so on does not cause any materially relevant changes. Legally, the product thus remains "unprocessed".
From the point of view of the supervisory authorities, there was an unsatisfactory regulation gap for the use of insects as foodstuffs. On the one hand, there was a lack of significant consumption experience with this type of food, and on the other hand, it was neither generally prohibited nor subject to authorisation. Only the EU legislator was allowed to close this legal gap. Legal distribution of insects and insect-based foodstuffs thus remained possible, taking into account the general safety, hygiene and labelling regulations applicable to animal foodstuffs.
This situation has been dealt with differently throughout the EU: Individual Member States - namely Belgium, the Netherlands, Austria, and the United Kingdom - accepted the distribution of certain insects such as cultivated mealworms and grasshoppers. These must have been adequately thermally treated, regularly tested and labelled with appropriate allergy indications. In Germany, only a few federal states tried to find similarly pragmatic solutions. The image of insects as pests dominated the official handling of such products. However, even expert bodies such as the "Senate Commission on the Health Assessment of Foods of the German Research Foundation" do not fear that eating edible insects traditionally consumed in certain parts of the world poses a health hazard. It is emphasised, however, that there is still a lack of systematic scientific research to date.
However, the market introduction of insect-based foodstuffs in Germany cannot be banned per se. Now that insects have been retroactively covered by the new Novel Food Regulation, they may continue to be marketed throughout the EU as a result of transitional provisions. The condition is that the corresponding species or their processed products have been lawfully placed on the market by 31 December 2017 and that a marketing authorisation application or notification as a traditional third country foodstuff is submitted to the Commission by 1 January 2019. This should provide greater legal certainty for the, approximately, ten insect species that have already been approved for distribution in various EU countries. For a lawful placing on the market, it is sufficient that this has been done in an EU Member State to achieve general recognition, also in Germany. Sufficient time remains until 1 January 2019 to ensure that these insect-based foods will continue to be marketed.