
In recent decades, an increasing number of rules have been applied at a supranational level in relation to food. These come both from the European Commission and from the Codex Alimentarius Committee, which is a collection of internationally recognized standards, codes of practice, guidelines, and other recommendations regarding food, food production, and food safety.
The primary objective and aim of the European Union is the creation of the “internal market”, which led to the harmonization of rules regarding food made available in the market. As a Member State, Cyprus is required to adopt and implement EU regulations, making the study of European legislation essential. In fact, the aforementioned rules, along with case law and legal analysis, now constitute a distinct field of law, known as “Food Law”, which warrants its own dedicated study.
In this short article, the author aims to interpret the core of food law—namely, the prohibition set out in Article 14(1) of Regulation 178/2002, hereinafter referred to as “the Regulation”.
According to this article:
“Food which is unsafe shall not be placed on the market.”
The term “food” refers to what is defined in Article 2 of the Regulation: substances or products, whether processed, partially processed or unprocessed, intended for human consumption, or reasonably expected to be consumed as such.
“Food” includes beverages, chewing gum, and any substance, including water, intentionally incorporated into the food during production, preparation, or processing.
The concept of “placing on the market” is defined in Article 3(8) as the holding of food or feed for the purpose of sale, including offering for sale, or any other form of transfer, whether free of charge or not, and sale, distribution, and other forms of transmission in themselves. Therefore, placing on the market does not refer solely to the offer to the end consumer, but to any form of trade anywhere along the food supply chain.
As for the safety—or rather, unsafety—of food, this is assessed under normal conditions of manufacture and consumption.
To determine whether a food is unsafe, two factors must be taken into account:
- (a) the normal conditions of use of the food by the consumer and at each stage of production, processing, and distribution, and
- (b) the information provided to the consumer, including information on the label or other information generally available to the consumer regarding the avoidance of specific harmful health effects from a particular food or category of food.
Paragraph 3(a) appears to refer to a subjective notion of market normality.
The reference to “normal conditions” at every stage of production, processing, and distribution is relevant to each food business.
When deciding on the unsafety of a marketed product, account may be taken of the processing it will undergo.
Paragraph 3(b) relates to the consumer’s knowledge via information available about the edible content on the label.
The concept of “information” includes the declaration of allergens, to help prevent adverse health effects from a particular food or food category.
It is common practice to adopt the results of food testing from the same batch.
This principle applies also under Article 14 of the Regulation.
If one food item is found to be unsafe, that finding is extended to other foods of the same condition.
The Regulation provides that when any unsafe food is part of a batch or lot of the same category or description, it is presumed that all food in that batch is also unsafe.
This principle led to the creation of the HACCP system, which increases the probability that untested food may also be deemed safe.
The first element of the definition of unsafety—”harmful to health”—is more medical than legal in nature.
It focuses on the health effects of consuming the food.
To comply with Article 14, a food business operator must accurately know the food they are selling in order to obtain a scientific/medical opinion on the potential effects of substances and/or ingredients contained in it.
The broad interpretation of unsafety increases the burden on food business operators, who must keep up with the latest developments in food safety science and technology.
The notion of “harmful” is further analyzed in Paragraph 4 of Article 14.
This includes not only obvious effects but also:
- short-term and long-term consequences, and
- potential cumulative toxic effects.
In determining whether a food is harmful to health, the following must be taken into account:
- (a) Not only the possible immediate and/or short- and/or long-term effects on the health of the person consuming it, but also the health of future generations; for example, impact on a developing fetus such as stillbirth, embryotoxicity, or teratogenicity.
- (b) Possible cumulative toxic effects;
- (c) Specific health sensitivities of a particular category of consumers for whom the food is intended—e.g., allergens.
The declaration of allergens is essential, and the presence of undeclared allergens renders food unsafe.
The widespread practice of precautionary labeling (“may contain”) may legally protect food businesses but does not serve the consumer interest.
There is no doubt that Article 14 of the Food Regulation is the most important provision in all of European food law.
The Regulation lays the groundwork and obliges Member States to implement food legislation, ensuring that food and feed business operators comply with the requirements at every stage of production, processing, and distribution.
To that end, Member States maintain official control systems and other activities appropriate to the circumstances.
They must also establish a system of penalties for violations of food and feed legislation.
Such penalties must be effective, proportionate, and dissuasive.
This article is for informational purposes only and should not be considered legal advice.
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