The EU Institutions recently agreed on a new general framework for official controls performed by the food safety authorities of the Member States, to verify compliance with feed and food law (the “Official Controls Regulation”). It includes, among others rules on (i) performance of official controls; (ii) administrative assistance and cooperation; (iii) enforcement; and (iv) import conditions for animals and products from third countries. Generally speaking, the new Regulation shall apply from 14 December 2019.
Fully risk-based approach to official controls
The competent food safety authorities of the EU Member States (“competent authorities”) may conduct control at all stages of the production, processing, distribution and use of the agri-food chain. The frequency of physical checks will be determined and modified on the basis of risk factors (such as the risk to human, animal or plant health, animal welfare or, as in regard to genetically modified organisms (GMOs) and plant protection products, also to the environment).
A new key element to strengthening the fight against fraud is the requirement for competent Authorities to take into account the likelihood of fraudulent and deceptive behaviour when deciding the appropriate frequency of controls.
Further, for the purpose of planning official controls, competent authorities need to take into account the operator's past record of compliance and the reliability of the operator's own checks (both self-assessments or those performed by a third party such as private quality assurance schemes). To preserve the effectiveness of official controls, no notice should be given prior to performing controls, meaning that, unless prior notice is absolutely necessary for the controls to be carried out, inspections should be unannounced.
Increased harmonisation of border controls for food imports
A common integrated system of official controls at border control posts, replacing the current fragmented control frameworks, has been established. Common rules will apply to controls carried out at borders on animals, products of animal origin, plants and other products and goods that must be checked before they enter the EU.
That approach should enable the competent authorities to allocate resources for controls where the risk is highest, and be less burdensome for competent authorities and businesses alike. Indeed, the new Official Controls Regulation clarifies that official controls must be performed in a manner that minimises the burden on businesses.
In order to deter food fraud, the Official Controls Regulation imposes stricter financial penalties in cases of infringements. The EU Member States must pass national legislation laying down these financial penalties, and these must be fully implemented by the date of application of the Official Controls Regulation. However, the Official Controls Regulation establishes that those penalties will have to reflect at least the economic advantage for the operator or a percentage of the operator’s turnover.
There are also new provisions for the protection of whistle blowers, who are a useful tool and can assist the competent authorities in detecting fraudulent activity. The EU Member States must have adequate arrangements in place to enable any person to alert the competent authorities to possible infringements and to protect that person from retaliation.
Competent authorities will have the option to make publicly available the information about the outcome of official controls on individual operators, as long as the operator is given the opportunity to comment on that information and the operator's comments are reflected in the information published.
Official Controls Regulation will also enable competent authorities to make publicly available information about rating scheme systems for operators, based on the outcome of official controls, so that consumers are better informed about the level of compliance of businesses.
In order to better prevent food fraud, and to rationalise and simplify the overall legislative framework, the rules applicable to official controls have been tightened and integrated into a single legislative framework.
EU agri-food chain legislation is based on the principle that operators at all the stages of production, processing and distribution are responsible for ensuring compliance. Therefore, it is important that food business operators are aware of, and ensure compliance with, the Official Controls Regulation.
Sara Aparicio Hill is an associate at the Singapore office of the law firm K&L Gates. She concentrates her practice on ASEAN and EU regulatory and compliance matters, in addition to advising on free movement of goods and services, data protection, competition, antitrust and trade matters; with a focus on the food, functional food, beverage, cosmetics and feed industries.