The Commission has issued a draft recommendation, calling on control authorities within Member States to search websites that offer novel food, or food supplement products, intended for sale via the internet.
“The recommendation is very significant. It is the very first time that the EU coordinates formal controls on food supplements, and the first time that it controls food sold over the internet,” commented Luca Bucchini, managing director of Rome-based food consultant Hylobates.
“There have been calls for some time to act on this, but stakeholders were despairing this would ever happen, and some internet operators were under the impression that no food law rules applied over the internet,” he added.
Physical manufacturers and retailers are already subject to tighter legislation on health claims and potentially hazardous products. They have previously complained to the authorities of the lack of enforcement applied to internet sellers. The draft EC recommendation represents a potential step forward in establishing a level playing field among offline and online operators.
Initial control period
Member state participation at this stage is voluntary and initial control (4-29 September 2017) and notification time frames (4 September – 10 November 2017) have been proposed. The introductory period is designed to gather information and establish best practices with specific objectives:
- practice and strengthen the cooperation and administrative assistance between Member State authorities on the control of internet sales;
- practice the exchange of information via rapid alert notifications according to Article 50 of Regulation (EC) No 178/2002 Rapid Alert System for Food and Feed (RASFF) and notification under the Administrative Assistance and Cooperation system (AAC system) according to Commission Implementing Decision (EU) 2015/1918 ;
- gain insight into misleading practices in the sale of food supplements;
- gain insight into the prevalence of unauthorised novel foods sold via internet;
- highlight that internet sales of food are subject to official controls;
- build know-how on food law enforcement in internet sales.
Non-compliant products will be classified either as being, with or without, health concern. Exclusively national issues will be addressed via the AAC system. Cross-border concerns (either intra-EU or with external ‘third countries’) will be reported via RASFF if a health concern exists, or through AAC if not.
Initial targets
During the control period, there will be a priority focus on four products with already established health or conservation concerns, which are considered unauthorised novel foods:
- Agmatine (4-aminobutyl) guanidine sulfate ,
- Acacia rigidula,
- Epimedium grandiflorum or
- Hoodia gordonii
The US Food and Drug Administration (FDA) issued a warning on products containing Acacia rigidula in 2016 (reported in NutraIngredients).
Additionally, Hoodia gordonii is a listed species under the Convention on the International Trade of Endangered Species of Wild Fauna and Flora (CITES)
During the control period, member states will also be asked to search websites for offers of food supplements that claim to prevent, treat or cure bone and/ or joint diseases.
Wider significance
“The significance of the recommendation goes beyond the specific cases authorities will look for. It seems to be the start of a coordinated effort to control unauthorised novel foods - another novelty - and to suppress illegal claims, which may be replicated with other priorities,” Bucchini explained.
“Also, more importantly, it provides the authority with a mechanism under food law to enforce legislation in the case of e-commerce operators, which is very problematic,” he added.
Bucchini believes that for products where there is a health concern, the RASSF system provides an effective and speedy enforcement mechanism. For illegal claims, or cases without health risk, enforcement under the AAC system may be less effective as Member States may ignore complaints against local operators.
Implications for internet retailers
Could this legislation put an end to cross-border internet retailers selling into the EU while avoiding effective controls?
Bucchini believes it is too early to say. However, he suggests that even the likes of Google or Amazon will need to be thorough in checking product composition and any health claims prior to displaying online. For large internet operators, with several thousand products, manually checking and monitoring to ensure compliance is onerous.
Even with the RASSF system, different interpretations of novel food issues or claims at national level hinders a unified approach. Internet operators also have very limited input if entries in RASSF are wrong.
Bucchini concludes that authorities should therefore “assess instances of non-compliance carefully before issuing alerts based on their investigation of the Internet - or errors may discredit the entire system.”