The Netherlands Food and Consumer Product Safety Authority (hereinafter 'NVWA') supervises companies that manufacture, import, and market products. It seems obvious that the products that are being sold should be safe to use. In practice, however, this often proves to be a difficult issue. When is a product considered unsafe? Who decides this and what happens if NVWA’s assessment of the matter differs from that of the company itself?
Whereas in the past the Netherlands Commodities Act (Warenwet) determined whether products should be taken off the market, today, extensive European legislation determines for numerous product categories (such as food, medical devices, cosmetics, toys, machines and equipment, etc.) which requirements a product must meet in terms of composition, quality, labelling and CE marking. The purpose of this legislation is to provide consumers with a high level of protection when it comes to the products they consume or use. European legislation is still rapidly developing in this field. The complexity of the legislation poses a great challenge for companies to continuously satisfy all requirements. What is more, although the European legislation is harmonised, monitoring and enforcement is left to the national supervisory authorities, which causes differences in supervisory practice due to diverging interpretations and enforcement policies.
For companies, the risk of unsafe products, or products that do not meet the European requirements in another way, are great: NVWA, or other supervisory authorities such as Customs, the Human Environment and Transport Inspectorate and the Inspectorate for Health and Youth Care, has far-reaching authorities which it does not hesitate to use where it sees fit. If companies fail to take unsafe products off the market or fail to do so in a timely manner on their own initiative, they risk administrative enforcement and in serious cases, criminal prosecution. This also affects the legal relationships between companies that are involved in trading and marketing products. A product recall or withdrawal often comes with huge financial and commercial damage.
In the past decade, global trade in food, raw materials and goods has increased tremendously; in particular the emerging markets in Asia manufacture large volumes to be processed or marketed directly in Europe. In practice, the majority of the products that are taken off the market as unsafe products are imported into the EU from third countries. While this does not guarantee anything, companies that import food, raw materials and goods are advised to already have the necessary inspections carried out in the countries of origin. Companies that have their official seat outside the EU must also seek advice about the complex European product legislation to prevent situations in which products cannot be marketed in the EU. In the light of new import legislation, we expect that supervisory authorities will pay much more attention to these import controls in the coming years.
Ploum has built a unique track record in this field. The focal point of this practice is on food and animal feed, including but not limited to pesticides, microbiology and contaminations. In addition, we focus on other products such as medical devices, cosmetics, toys and fast-moving consumer goods (FMCG). We also provide assistance to numerous companies that will have to deal with supervisory authorities like NVWA.
Ploum has extensive experience assisting companies that have to carry out a product recall or withdrawal, in engaging NVWA, or have to deal with product liability claims by purchasers or third parties. In practice, this means that we aim to achieve results for our clients by engaging discussions with NVWA, but if need be challenge unjustified enforcement decisions by means of administrative review and judicial appeals. We also provide assistance in the defence against claims and in recourse, as well as in all aspects of insurance coverage that come into play in product recalls. Finally, we can also assist our clients if the authorities decide to withdraw any licences, conduct a criminal investigation or decide to prosecute. In short, we approach legal issues surrounding product safety from all possible legal angles and are familiar with the relevant European and national regulations.
Ploum's specialists have extensive experience in engaging with supervisory authorities – preferably in good consultation, but in court if needed – but will also litigate before the civil courts in liability cases resulting from product recalls.
Internationally our practice is part of the Food Lawyers Network and the Greenlane network of law firms specialising in international commercial law and customs law. This allows us to provide quick and effective assistance to our clients when necessary, both inside and outside of the EU.
‘We work with Ploum in the fields of IP, trade, contracts, manufacturing and logistics. The firm’s down to earth and hands-on approach makes it unique. Ploum is so important for our business because it is exceptionally skilful in its area of expertise and brings complex problems back to workable solutions for companies like us.’ – Legal 500 EMEA 2023
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