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Food law was recently making headlines in the Netherlands when a recall took place of contaminated meat in Dutch foodstores. It shows that rules about food are essential in our daily life. When a food business wants to place a food product or a food supplement on the Dutch market, it is subject to a complicated mix of rules and regulatory compliance, authorizations, recognition, permits and sometimes even exemptions, for which the first step is always to determine whether or not it actually concerns a ‘food stuff’. Also confusing is the lack of regulation for certain products on ingredients which means that grey areas exist and risks may be hard to assess. But Blenheim will try to help you out with that.
The foundation of food law is the General Food Law (GFL). These rules for food safety and food quality apply Europe-wide. The GFL lines out the basic principles a ‘food business operator’ has to follow and paves the way for a multitude of additional European regulations and (in the case of the Netherlands) Decrees to the Dutch Commodities Act which contain very precise rules and provisions that apply to various aspects of your business. The Commodities Act lays down rules of compliance for food stuffs and other products. Also check out: novel food in the Netherlands.
The regulation of food stuffs in the Netherlands is, in short, based on three pillars: Product, Process and Presentation.
The Product stands at the core of the business process. This has to be in perfect order. This concerns the composition of the foodstuff, the use of food improvement agents (such as additives, food enzymes and flavoring and coloring agents), food safety, novel foods Like CBD), food for special groups (babies, top athletes or those suffering from diabetes) and the composition of food supplements. Detailed provisions prescribe what can and can’t be in a product (and in what quantities) and how a product may be sold. More on CBD: CBD products in the Netherlands.
The Process is where often the most complicated questions play. Any food business operator that operates, at any stage of production, processing or distribution, with food, must shape their process according to the HACCP principles, must comply with the traceability requirement and must take particular account of food contact materials (FCMs). In addition to constructing the process according to the HACCP principles, Good Manufacturing Practices (GMPs) and Good Hygiene Practices (GHPs) from hygiene codes can be followed.
The Presentation of the product is a subject with many concrete questions. At European level, there is a strict definition of what information must, may and can’t be put on a label for a foodstuff and, subsequently, how this information must be displayed. In addition, the question often arises as to whether certain ‘claims’ are acceptable. Can a product be called ‘organic’? When is something a strictly regulated ‘medical claim’ (as opposed to the ‘health claim’)? Can a Belgian flag be used on ‘Belgian Chocolate’ produced in the Netherlands? Enforcement looks strictly at claims and does not hesitate to impose hefty fines. Blenheim is dealing with frequently with law enforcement issues in the Netherlands food industry. Legal remedies are available under Dutch law to contest fines from Dutch regulatory authority and other sanctions form a Dutch Authority. Food labelling rules please check out: Dutch food labelling rules.
The starting point of food law in the Netherlands is that the food company is responsible and, even after it has completed its process, remains responsible for the safety of its food products. Enforcement by the Dutch Food Authority NVWA can take different shapes; it could be a request for information or knock on the door to inspect premises. Even for food products that are already out of your hands, whether the products have arrived and processed at another company or not. The General Food Regulation, together with the Administrative Fines (Commodities Act) Decree, also lifts a corner of the veil regarding the consequences of a violation through enforcement by the authorities.
These consequences can be very diverse, from a simple warning letter to criminal prosecution and/or administrative fines. In acute cases, when this is necessary for the safety of the consumer, the products may have to be taken back from the shelves in case of a 'recall'. Blenheim’s lawyers can help you with all enforcement issues in the Netherlands. More often than not, it can be argued that the enforcement is not proportionate, that another form of enforcement should have been chosen and/or the Dutch Authority can be held liable for lawful or unlawful acts. Additionally, the authority must act according to their enforcement policies, which Blenheim keeps track of for its clients.
Liability is looming when food laws are infringed. Contaminated food and an recall of food products are a nightmare for food companies and may cause serious damage. Other businesses or a consumer may claim damages and hold you liable for it, because they claim that there’s something wrong with your product. Liability may also arise through contract and may also concern damages suffered by yourself, for example as a result of mistakes made by your supplier. A safe and sound risk policy for your products is essential to limit exposure for liability.
In difficult cases concerning food law, Blenheim can assist you. We offer customized assistance by one of our experts, but with the option of an integrated approach, in case all processes coincide.
Please contact Mark van Weeren, cost free, to discuss what we can do for you.
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