Consumers must be able to rely on the safety of the food offered to them. Food business operators (including producers, processors and distributors) are primarily responsible for ensuring that safety.
The Netherlands Food and Consumer Product Safety Authority (NVWA) is responsible for monitoring food safety and may take enforcement action in the event of violations. The NVWA is an active regulator and imposed more than 6,600 enforcement measures in 2021 (an average of 18 per day), including more than 6,000 fines.
In this blog we outline the main obligations for companies regarding food safety, list the NVWA’s enforcement powers and address the topic of ‘product recalls’.
Food safety: the basics
Food includes all substances and products – processed, semi-processed or unprocessed – that are intended to be, or may reasonably be expected to be, consumed by humans. It may be a raw material, an excipient, an additive, or a finished or semi-finished product.
The main food safety rules follow from the 2002 General Food Law Regulation (better known by its abbreviation GFL). Various other food safety regulations (both Dutch and European) also apply, such as maximum residue limits (MRLs), organic production/food and health claims, and labelling (e.g. on allergens). Other relevant regulations include the Warenwet (Commodities Act) and the Warenwetbesluit bereiding en behandeling van levensmiddelen (Preparation and Processing of Foodstuffs (Commodities Act) Decree).
Companies must ensure that foodstuffs meet the applicable food law requirements at all stages of the process (production, processing and distribution). They must also monitor compliance with these requirements. If a food is unsafe, it may not be placed on the market. A product is ‘unsafe’ if it is (a) injurious to health or (b) unfit for human consumption (Article 14(2) GFL).
The following three elements are considered in determining whether a food is unsafe (Article 14(3) GFL):
- the normal conditions of use of the food by the consumer;
- the information provided to the consumer, including information on the label; and
- other information generally available to the consumer concerning the avoidance of specific adverse health effects.
The determination of whether a food is injurious to health is based on:
- the probable short-term and long-term effects on the consumer’s health;
- the possible effects on the health of subsequent generations;
- the probable cumulative toxic effects; and
- the particular health sensitivities of a specific category of consumers where the food is intended for that category of consumers (e.g. allergies or intolerances).
The determination of whether a food is unfit for human consumption is based on whether a food is unacceptable for human consumption according to its intended use, for reasons of contamination, by extraneous matter or otherwise, or through putrefaction, deterioration or decay.
Traceability
A key building block of the GFL is food traceability. Food businesses must have a sound traceability system in place so that products can be quickly and accurately withdrawn from the market if they present a threat to public health. They must be able to trace which companies supplied their food products (suppliers) and to which companies they have supplied their products (customers), and must adequately label or identify their products for this purpose. In the case of food of animal origin, the NVWA requires companies to be able to provide traceability information within four hours.
Notification requirement for companies
A possible risk of an unsafe food having been placed on the market must (immediately) be notified via the NVWA website (known as a ‘GFL notification’). ‘Placing on the market’ means having food available for the purpose of sale, as well as the actual sale, distribution and other forms of delivery. A notification must therefore be made even if the product has not yet left the immediate control of the business operator. Moreover, the notification requirements applies to all parties in the chain that know or should reasonably know that a food is unsafe: the party that imported, processed, manufactured, or distributed the product. Each business may also be individually sanctioned for failing to notify (in a timely manner).
Monitoring by NVWA
One of the NVWA’s main tasks is to ensure food safety. The NVWA pays relatively close attention to supervision in the meat sector. This relates to both animal welfare and the hygiene of the products ultimately sold to consumers. The NVWA permanently monitors slaughterhouses in the poultry and red meat sectors, for instance. The monitoring of allergen information has also been a regular part of the NVWA’s inspections in the hospitality, craft and retail industries for several years. The NVWA inspected more than 5,000 businesses in 2021 for compliance with the rules on the provision of allergen information: 63% of the businesses inspected did not comply with the applicable legislation.
NVWA’s enforcement powers
The NVWA has various enforcement powers, consisting of sanctioning and corrective interventions. A sanctioning intervention serves as a punitive measure, while a corrective intervention – such as an order subject to a penalty – aims to repair an unlawful situation. In practice, however, such a corrective intervention may have major financial and reputational consequences, and may in fact very well be perceived as punitive by the company concerned.
The NVWA has wide-ranging enforcement powers, including:
- imposing an administrative fine:
- In 2022, for instance, the NVWA imposed a €3,480,000 fine on a food trader who sold rice containing harmful substances.
- In 2020, the NVWA imposed a €500,000 fine on a butchery business, partly because it made incomplete GFL notifications to the NVWA, failed to carry out an adequate recall and failed to warn the public after a possible Salmonella contamination in meat originating from one of its suppliers.
- In 2019, the NVWA imposed a €17,500 fine on a slaughterhouse on the grounds of contaminated carcasses.
- imposing an order subject to a penalty or an administrative enforcement order:
- In 2022, the NVWA imposed an order subject to a penalty of €25,000 on a food producer on the grounds of the presence of unintended allergens in chocolate spread.
- In 2014, the NVWA imposed an administrative enforcement order to force a seller of beef (in which horse meat had been found) to withdraw the batches of meat in question from the market.
- halting production;
- withdrawing or suspending a licence or approval;
- ordering the seizure or destruction of products; and
- imposing a transport ban.
A recall: careful deliberation and rapid action
Another important intervention by the NVWA is what is known as a ‘recall’: the removal from the market and, if necessary, recall of products by the producer, while informing consumers (Article 19(1) GFL). In practice, the term recall is sometimes used interchangeably for various measures, ranging from ‘silent’ recall of the product from sales channels (i.e. before it has been sold to consumers) to a public warning of unsafe products or recall of a product from consumers.
From a legal perspective, a recall is not a power of the NVWA, but rather a legal obligation that rests on the producer. The NVWA therefore does not have to issue a decision ‘ordering’ a recall. But if the producer refuses to carry out a recall, the NVWA may try to force a producer to do so by imposing an order subject to a penalty. The NVWA may also subsequently impose a fine for failure to carry out a recall (or to do so in a timely manner), amounting to 1% of the producer’s annual turnover in the case of intent (subject to a maximum of €900,000 in 2022).
Companies themselves must primarily assess whether they believe, or have reason to believe, that a food is or may be unsafe. In practice, that assessment may be difficult to make, particularly with regard to the question of the nature and severity of the harmfulness of the food. Also, the NVWA and the company may have different views on the need for a recall. Other factors will also play a part for businesses in deciding whether a (public) recall is an appropriate remedy, such as:
- the impact on buyers and end customers;
- food wastage;
- effect on brand reputation; and
- potential claims for damages from customers (and their customers).
A recall must be commenced ‘immediately’. Companies are therefore well advised to be prepared for a possible recall and, in anticipation of such an event, to have procedures in place in case they receive signals about potentially unsafe food (such as consumer complaints). If a company fails to organise a recall in good time, the NVWA may (as stated above) impose an order subject to a penalty. The time limit to be imposed by the NVWA must be ‘sufficiently long’ to comply with the order, but may be very short in practice. A court previously ruled that a four-hour compliance period was ‘not unreasonably short’ in the relevant circumstances.
From a reputational perspective, it should be borne in mind that if a company fails to inform consumers of the reasons for the withdrawal of a product from the market, the NVWA may do so itself.
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