Once again there is a new attempt in Germany to introduce stricter requirements for food safety – despite the full harmonization approach in general EU food law:

The Federal Council has taken initiative regarding improvement of traceability of food and feed products. On 14 February 2020, it passed a resolution demanding legislative changes from the German Federal Government.

In its reasoning the Federal Council refers to several incidents that affected German consumers in the past. Lack of traceability of products was often mentioned as a problem when trying to resolve incidents quickly.

According to the Federal Council, this has shown how important it is to be able to quickly and effectively trace the delivery routes of food products. The Federal Council demands amendments of the law for consumer protection. It is essential that authorities and food companies are able to trace a food product that they have identified as presenting a risk back to its source, says the Federal Council. Aim is to isolate the risk quickly and ideally prevent products of concern from reaching consumers at all.

Thus, the delivery list has come into focus. Delivery lists are considered to be a central instrument for ensuring and accelerating the traceability of food or feed.

According to the Federal Council, effectiveness can only be achieved where the standards for delivery lists are uniformly set and respected at the level of food and feed manufacturer. The sometimes poor quality (e.g. scanned, poorly legible faxes etc.) and the inconsistency of the data provided by the manufacturers would currently delay the work of the competent authorities and would cause additional work.

Specifically, the Federal Council wishes the government to push for an amendment to the German Food and Feed Code, regulating the obligations to transmit information on the traceability of food. Under the proposal, food and feed manufacturers will be required to submit traceability information in electronic form and in a uniform format to the competent authority within 24 hours. Small businesses that predominantly sell to the end consumer should be exempted from this regulation.

In taking this proposal, the Federal Council disregarded the recommendation of its Economic Committee, which had advised replacing the rigid formulation of "24 hours" with the tried and tested "without delay" in order to take account of the individual ability of food and feed companies to react and at the same time to rule out culpable hesitation.

This latest resolution is in line with the already high(er) requirements for consumer information for food in Germany (namely the German Consumer Information Act, Verbraucherinformationsgesetz).

The German Federal Government will now assess the resolution and decide whether to act. There are no fixed deadlines for this. The proposed changes would have an impact on manufacturer's obligations regarding traceability and in recall scenarios.

This resolution once again shows that despite the full harmonization of food law in the EU, there will always be the risk of individual Member States to introduce stricter requirements. Full harmonization does not prevent Member States' individual actions - and it is a long way to have these challenged before the European Court of Justice where they are exceeding the boundaries set by EU law. 

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