CJEU declares the German ban on amino acids to be too broad

Is it allowed to unreservedly prohibit amino acids in food? No. In the Queisser Pharma case the European Court of Justice ruled that member states are allowed to introduce a national ban on a certain type of food due to health risks. However, a ban should be based on either comprehensive risk analyses or on the precautionary principle. Additionally, these analyses need to be carried out with respect to all ingredients which comprise the ban. Under German law, a prohibition exists for the introduction to the market of food which contains amino acids, unless an exemption has been granted. Queisser Pharma requested such an exemption for a dietary supplement with amino acids, which got declined. The company started proceedings, stating that the German ban is too broad. Queisser Pharma was right. The prohibition in the German law covered all amino acids, whereas in the risk analyses only certain amino acids were tested. The court ruled that these analyses were insufficient to justify such a scheme of prior authorization.

Further explanation

Queisser Pharma, producer of dietary supplements, started proceedings against the Federal Republic of Germany because of the refusal of the exemption. Although the refusal was eventually withdrawn and the exemption was granted for a period of three years, Queisser Pharma still went to the administrative court in Germany. The judge referred to the Court of Justice, asking whether the German exemption-rule (it is prohibited, unless an exemption has been granted) is compatible with the food law Regulation.

It follows from the this Regulation, that food shall not be introduced to the market when it is unsafe, mainly if it’s considered to be injurious to human health or unfit for human consumption. In case there are no specific European provisions, products have to comply with the national food law of the member states. These national laws are only compatible with the Regulation, in case they are founded on the risk analyses and the precautionary principle which follow from the regulation. Should the German exemption rule be based on these principles, then it would be allowed. It is up to the national court to decide whether this is the case.
In the current case, the Court decided that the risk analyses were inadequate to justify a national ban on all amino acids.

The Court confirmed once again the importance of thorough and well executed risk analyses. An exemption rule may be applied and national laws may provide for a ban on certain substances or foodstuffs. However, the actual health risks they pose have to follow from extensive research with regards to all the substances concerned.

Dominique Geerts