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Country Report: Unsafe foods in the Netherlands: strict rules on notification

Introduction
What should a food company do if it suspects that a food product is possibly unsafe? Rules on necessary action taken by food companies are provided by Article 19 of the General Food Law Regulation (178/2002). These rules are harmonized and apply EU-wide. However, interpretation of the rules differ between Member States. In the Netherlands, one issue of interpretation is especially striking. The Netherlands Food and Consumer Product Safety Authority (Nederlandse Voedsel- en Warenautoriteit, NVWA) seems to be particularly strict on notification. For many foreign food companies, this comes as a surprise.
 
General Food Law Regulation
Article 19 of the General Food Law Regulation (178/2002) lays down the food company’s responsibilities in case of possibly unsafe foods. The food company must initiate appropriate procedures, such as withdrawing or recalling the food products and informing consumers. In some circumstances, the enforcement authorities should be informed. The Regulation provides general rules. What steps are appropriate and whether enforcement authorities should be notified is to be determined on the risk analysis in the specific case at hand.
 
Dutch interpretation and practice: NVWA guidelines
In the Netherlands, the NVWA published guidelines for notification in the form of a decision tree. The guidelines should clarify to food companies when they should notify the NVWA of a potential food safety issue. The decision tree is not a formal legal document. Rather, it is the NVWA’s interpretation of Article 19 General Food Law Regulation. Subject to only two exceptions, the NVWA expects to be notified by a food company as soon as the company believes that a food is possibly unsafe.

As the decision tree shows (see publication), there are only two specific exceptions in which the food company does not have to notify the NVWA of a possibly unsafe product. They concern the following two circumstances:
 

  1. if a product is possibly unfit for human consumption (and is not injurious to human health) and the product has not left the food company; or
  2. if a product is possibly unfit for human consumption (and is not injurious to human health) and (i) the operator is not the first responsible in the chain in the Netherlands and (ii) the product is not sold under a private label.

 
Under all other circumstances, the NVWA expects to be notified. Compared to the NVWA’s interpretation, the Regulation leaves more room for a risk assessment on the basis of the case at hand. In addition, there is one specific situation in which the Dutch interpretation is stricter than the Regulation. The NVWA expects to be notified of a possibly injurious product also if the product is not (yet) placed on the market by the food operator.The Regulation, however, only requires that enforcement authorities are informed if the product has indeed been placed on the market by the food operator.

Foreign food companies are often surprized by the NVWA’s strict approach. On the upside, the NVWA is generally willing to cooperate with food companies to discuss what steps are necessary. This cooperation generally takes place informally and quickly, rather than formally exchanging statements and documents.
 
Conclusion
Although the NVWA guidelines are not binding law, it does make clear what the NVWA expects from food companies in terms of notification of possibly unsafe products. Moreover, if the food company fails to follow the guidelines, it risks enforcement measures. These could include an official warning, but also an administrative fine.
 
It is questionable whether the NVWA guidelines are in line with the Regulation. The Regulation leaves room for interpretation in specific circumstances, but not for generally stricter rules. Although the guidelines have been in force for several years, they could perhaps be challenged in the future. In the meantime, international companies are advised to take note of the Dutch interpretation of the Regulation and to be prepared to take necessary steps. Although EU food law is harmonized, differences remain in force. No doubt, this story is to be continued.
 
Ebba Hoogenraad and Bram Duivenvoorde

Published in European Food and Feed Law no. 3/2016
 

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