European Food Law Association (EFLA) Congress: Regulatory insights for the food and drink sector

The UK may have left the EU but with companies acting globally, it’s essential to keep up to date with international developments.

We’ve pulled out some of the key points discussed at the European Food Law Association’s Congress in Milan in September, “In search of a nexus: Science, law and the landscape of uncertainty”. 

Topics ranged across jurisdictions and provided much… food for thought, with the luxury of expert lawyers diving into the legislative and procedural details of culinary hot topics including: 

• Titanium Dioxide where we saw how Regulation (EC) No 1272/2008 on the classification, labelling and packaging of substances and mixtures is interacting with food law. A world where a regulation which deals with the classification of hazardous or toxic substances clashes with food safety assessments throws up some interesting quandaries. For example, vinegar which could be a food or a biocide depending on its use. 

• Garcinia Cambogia which has been banned in food supplements in France. 

• Hydroxyanthracene derivatives (HADs) where multiple companies challenged the legality of the European Commission’s decision on HAD preparations.

• The now perennial question of on-hold botanical claims and hot off the press insights into the ongoing litigation on smoke flavourings and the fungicide mancozeb (a pesticide used on potatoes) were also covered.

The precautionary principle: Balancing science and law

In every case the interaction between scientific data and application of legal requirements creates a tension, especially taking into account the potentially conflicting requirements of the “precautionary principle” and the requirement on regulators to act proportionately to the known harm.

The precautionary principle is set out in the General Food Law and refers to specific circumstances where there is a possibility of harmful effects on health is identified but uncertain, then provisional risk management measures may be adopted (pending further scientific information for a more comprehensive risk assessment).

Environmental claims: EU and UK regulatory divergence

Presentations on environmental claims drew attention to the incoming amendments of the EU list of commercial practices which are in all cases unfair (banned practices).

A reminder for us that whilst the EU and UK started from the same point in 2005, subsequent amendment to consumer law in the EU and the passing of the Digital Markets, Competition and Consumers Act 2024 (DMCCA) last year means that the list of banned practices has diverged. 

Time will tell however, whether the EU’s explicit ban on making generic environmental claims without being able to demonstrate recognised excellent environmental performance relevant to the claim will in practical terms be different to the UK regulators evidentiary expectations when it comes to environmental claims.

US food regulation

Delegates also got to hear about the context and political history behind the US administration’s “Make America Healthy Again” policy and the developments in litigation tactics under “public nuisance” by Attorney Generals in the USA.

If any of the above piques your interest and you want to know more about the regulatory position in the UK, contact our food and drink team.