Free as a bird?

In Europe the principle of mutual recognition applies: if a product is validly marketed in a Member State, then in principle that same product may be sold throughout the rest of the EU. Nevertheless, a country can deny a product market access, but only if strict conditions are met. An obvious safety risk may be a good reason to prevent the sale of a product. Solgar produces a food supplement containing 100 micrograms of vitamin D. However, in the Netherlands the maximum daily dose of vitamin D permissible by law is 75 µg. Because this same product can be sold in various European countries (with no problems), Solgar is claiming mutual recognition. The Netherlands Food and Consumer Product Safety Authority (NVWA), however, is refusing to grant the product market access, and the legal dispute has been dragging on for years. Solgar believes that NVWA is not providing sufficient substantiation for denying the product market access. It has submitted many arguments showing evidence of the product’s safety. In 2016 the NVWA impounded the products in question and demanded, among other things, a recall, under the weight of a hefty penalty sum. Solgar subsequently applied to the preliminary relief judge, seeking at least a suspension of the recall. Surely the point of a recall is to withdraw clearly dangerous products from the market in a flash?

The judge weighed up the interests and, in his preliminary ruling, upheld Solgar’s complaint regarding the recall. The judge considered that there was at least a degree of doubt as to whether the legal maximum met the requirements of the Mutual Recognition Regulation. The judge also had doubts about whether the NVWA could enforce the maximum in this manner. Relief for Solgar: recall averted. For the NVWA this means that it needs to take a good look at its (enforcement) policy regarding similar nutritional supplements.

That mutual recognition is a hot topic is also evidenced by a recent judgment of the Court of Justice. This case is strikingly similar to the Solgar situation.

In these proceedings Solgar was assisted by Sarah Arayess and Ebba Hoogenraad