NVWA withdraws and replaces the Reporting Guide for Unsafe Food

For years, the Netherlands Food and Consumer Product Safety Authority (NVWA) has had the Reporting Guide for Unsafe Food ("the Reporting Guide") on its website, which – in various versions – was supposed to serve as a guide for food business operators: when are you obliged to report and when not?

On 19 January, the NVWA posted a new instruction on its website announcing 'please note: the instruction on this page replaces the Reporting Guide'. The Reporting Guide thus appears to have been withdrawn and food business operators are now, according to the instruction, expected to make notifications according to the instructions on this webpage.

The new instruction for reporting unsafe food

The new instruction on the NVWA website is very short and reads "Entrepreneurs must always report (potentially) unsafe food to the NVWA within 4 hours. This applies to food you have imported, processed, produced, delivered, transported, sold or stored. Do not report? Then you are in violation. Reporting can be done 24 hours a day, 7 days a week." For further explanation, it states "The duty to report also applies to non-compliant batches that have been physically imported on the order of a Dutch company and are on EU territory, whether or not in a customs warehouse for further trade to EU or non-EU countries". Reference is also made to specific decision trees for two topics (pesticide residues and veterinary medicines).

Based on this new instruction, food business operators are expected to report to the NVWA before, during and after the food production process – from the import of a raw material to the sale of the finished product and everything in between – a (potentially) unsafe food under the control of the food business operator. The current instruction thus seems to exceed further than the previous Reporting Guide and also beyond what the General Food Regulation requires. In this article, you can read why.

General Food Law

The statutory duty to report under the General Food Law contains specific elements. There are two variants of the duty to report:

First, the duty to report unsafe[1] products (Article 19(1)):

• A business has imported, produced, processed, manufactured or distributed a food product; and
• the food business operator believes, or has reason to believe, that the food does not meet food safety requirements; and
• when it has left the direct control of the food business operator;
• initiates the procedures to withdraw the food from the market; and
• the food business operator must report to the NVWA.

The notification requirement for harmful products (Article 19(3)):

• A food business operator believes, or has reason to believe, that a food may be harmful to human health; and
• the product has been placed on the market; then
• must be reported to the NVWA immediately.

Relationship between new reporting instruction and legislation

Thus, for both reporting obligations, the prerequisite is that the food in question has been placed on the market by the food business operator (and for the first reporting obligation that the product has also left the direct control of the operator).

Under the General Food Regulation, a product is on the market from the moment it is ready to be delivered to a customer. So after all processing, checks and/or analyses have been carried out and from the moment a food is ready to be delivered, a product is on the market. A food business operator must report an unsafe product if the product is not only ready, but has actually left the company's direct control.

In the old versions of the Reporting Guide, NVWA specifically addressed, among other examples, whether and when a product was on the market. For example: in case the food business operator used a 'positive release' (analysis before release) system and the production was not yet completed – i.e. the product was not yet released because of not yet completed analyses – then the product was not yet on the market and there was no duty to report, according to the NVWA in the old Reporting Guide. Incidentally, this is also in line with the explanation in the so-called Guidelines of the Standing Committee on Food Safety and Animal Health. Even when storing transit goods, it is highly questionable whether they have been placed on the EU market.

Does the new instruction ignore legal criteria?

However, the new instruction on the NVWA website currently requires food business operators to report any food (including raw materials and semi-finished products) that the operator has "imported, processed, produced, delivered, transported, sold or stored". According to its website, the NVWA links failure to report according to this instruction to the conclusion that there is a violation that will be fined.

In doing so, the NVWA seems to ignore the various criteria that apply to the statutory duty to report: there must be concrete evidence of unsafety within the meaning of section 14 of the General Food Law and a product must have actually been put on the market (and in the case of section 19(1) of the General Food Law, must also have left the direct control of the operator). The NVWA's new instruction clearly goes further than provided for in the legal text - and, for that matter, also in the old Notification Guide.

A more far-reaching duty to report than that in Article 19(1) and (3) of the General Food Law will have to have a legal basis. An instruction on the NVWA website is not.

What is the importance of this? Obviously, it is important to report when an unsafe food has been placed on the market. Consumers and buyers must be warned and products recalled if necessary. The NVWA oversees that process. But is it right for the NVWA to want to extend the duty to report to raw materials or products that are not (yet) on the market? The NVWA now seems to announce it that way and holds out the prospect of fines if the reporting instruction is not met punctually (within 4 hours). In our view, the legislation provides no basis for this, at least not without amending the regulations on this point.