The EU's "General Food Law" (Regulation 178/2002) introduced a number of definitions of food and feed risk in order to bring greater cohesion to food regulation and risk management across the EU Member States. The General Food Law is the cornerstone of food and feed safety law in the EU. It requires competent authorities to make public announcements about food products where there is a serious risk to human health. The recent judgement of the Court of Justice of the EU in the Berger v Bayern case has now clarified the extent to which competent authorities are also entitled (but not required) to make public announcements about food products which are not prejudicial to health but which are unfit for human consumption. If you are a food business operator, these discretionary announcements that disclose brand information and manufacturer details can have disastrous consequences.

In 2006 a German processor and distributor of game meat (Berger Wild GmbH) went into liquidation after the Bavarian Minister for Consumer Protection issued press releases stating that inspections had uncovered that certain Berger Wild products gave off a rancid, nauseous and musty smell and, in certain cases, had become putrid. In addition, the press statements noted unhygienic conditions at certain of Berger Wild's establishments. Berger Wild claimed that these products posed no threat to public health, but the Bavarian authorities deemed them 'unfit for human consumption'. The Bavarian Ministry for Consumer Protection issued the press releases in line with a German law requiring public notification of foodstuffs unfit for human consumption.

In its action for damages allegedly caused by these press releases, Berger Wild claimed that the relevant German law was in conflict with the provisions of the General Food Law, which, they argued, only required (as it then did) notification of the public where food constitutes a serious risk to human health. The Court of Justice of the EU was requested to determine if public notification was only permissible where there was a serious risk to human health, or whether EU Member States were free to adopt additional laws requiring wider public notification of less serious food incidents.

Unsafe Food

Article 14 of the General Food Law contains a detailed definition of 'unsafe food'. Food considered to be either i) injurious to health or ii) unfit for human consumption constitutes unsafe food. In determining whether food is 'injurious to human health' risk assessors must determine the probable effects on the health of the consumer, the probable cumulative toxic effects and the particular health sensitivities of a specific category of consumers (such as allergy sufferers). In determining whether food is 'unfit for human consumption' regard is to be taken of whether a food is unacceptable for consumption due to contamination (such as with extraneous matter), putrefaction, deterioration or decay.

Duty to Notify

The General Food Law contains two separate provisions which trigger public notifications. Article 10 of the General Food Law requires competent authorities to inform the general public where a 'food or feed may present a risk to human or animal health...depending on the nature, seriousness and extent of that risk'. The precise definitions of unsafe food used in Article 14 are not used as the benchmark for notification of the public. Instead, the more general language of risk is used. However, the wording of Article 10 would suggest that public notifications under that Article are only required where a food can be regarded as 'injurious to human health'. Separate notification requirements as between competent authorities of EU Member States are dealt with under the Rapid Alert System for Food and Feed (RASFF) and Article 50, but these are generally limited to foods posing a serious risk to European public health. Product information disseminated via RASFF does not disclose the brand name or manufacturer to the consuming public.

Court Ruling

In its judgment of 11 April 2013 the Court of Justice of the EU found that Germany was entitled to maintain laws which permitted public authorities to notify the general public of foods deemed unfit for human consumption. The Court noted that while Article 10 of the General Food Law created an express obligation for national authorities to inform the public in the event of a serious risk to human health, this did not exclude other notifications to the public in less grave situations of non-compliance. Indeed, in arriving at its determination, the Court noted the general obligation under the Official Controls Regulation (Regulation 882/204), as well as under Article 17(2) of the General Food Law itself, for high levels of transparency and public communication on food safety.

In Ireland, under section 53 of the Food Safety Authority of Ireland (FSAI) Act 1998 (as amended), the Chief Executive of the FSAI is obliged if he considers it appropriate or necessary to bring the contents of a closure notice or a prohibition order to the attention of the public. However both closure orders and prohibition orders are themselves predicated on the existence of a "grave and immediate danger to public health" and a "serious risk to public health" respectively. Irish law is currently silent as to whether there is a duty on the part of authorities to notify the public about a food product which is 'unfit for human consumption'.

Conclusion

The ruling the Berger v Bavaria case now clarifies the law on the public notification of food incidents by competent authorities (other than those notified under RASFF). While authorities are obliged to always notify the public in the event of a serious risk to human health, they also enjoy wide discretion to issue public statements which identify specific food products which are not prejudicial to health but which are unfit for human consumption and which identify food business operators as being noncompliant with the General Food Law.

This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.