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Six food companies have been fined by the Netherlands Food and Consumer Product Safety Authority (NVWA) for allegedly adding unauthorized additives (such as nitrite) to ox sausage, carpaccio, filet americain and steak tartare. The companies challenged the regulator were vindicated on lack of evidence from the NVWA.
The NVWA was proven right by the judge of the Rotterdam District Court on almost all discussed points and method of enforcement, but the companies were proved right on one point: lack of substantiation by the supervisor. As a result, the judge ordered the NVWA to pay the companies' legal costs.
The companies challenged the regulator on the qualification of 'meat preparation' or 'meat product' and legislation applicable to it. According to the producers, the meat products they market are not meat preparations, but meat products to which these additives may be added.
To determine which additives a meat producer may use, it must first be determined whether the product is a meat product or a meat preparation. This is primarily the producer's own responsibility. It cannot be determined generically for an entire product group but on a case-by-case basis, taking into account the specific characteristics of the product, recipe and production process.
Organoleptic examination should be used to determine whether the processing has altered the internal muscle tissue structure of the meat to such an extent that on the cut surface it can be determined whether the characteristics of fresh meat have disappeared. In this case, it is referred to as a meat product.
Based on a description of the preparation process, the cases discussed concluded that it could not be a meat product, but a meat preparation. The NVWA made this conclusion on the basis of the applied preparation process. According to the court, however, the NVWA did not sufficiently demonstrate that the characteristics of fresh meat had not disappeared to conclude that it was a meat preparation.
The reports of findings show that there organoleptic testing by the NVWA was carried out only during the first inspection. During the inspection during which the fine report was made, no organoleptic testing was performed by the NVWA, Jan Eliëns indicated on behalf of the NVWA.
The regulator has consulted the European Commission, which agrees with the NVWA's position, according to Joyce de Stoppelaar, present at the hearing on behalf of the NVWA. Its method of assessing the product also matches that of the Belgian Federal Agency for the Safety of the Food Chain (FAVV).
The regulator also cited the German regulator (Bundesamt für Verbraucherschutz und Lebensmittelsicherheit), according to Joyce de Stoppelaar. This regulator first considers whether there is a processing step (such as heating or drying). Only secondly does it consider whether this treatment has caused the characteristics of fresh meat to disappear and that a product such as carpaccio, to which only salt and spices have been added, does not qualify as a meat product, according to the Bavarian authorities.
A long-running dispute with the NVWA over the method of determining exactly when the properties of fresh meat have disappeared and it is therefore a meat product has been ongoing. The meat processing companies argued that in the cases discussed, the NVWA failed to prove a violation.
The companies argue that organoleptic examination alone (i.e., by sensory perception) cannot be used to determine whether there is meat preparation or processing into meat products.
According to Jan Eliëns (NVWA), both the judge and the NVWA believe that organoleptic testing is appropriate to determine whether the characteristics of fresh meat have disappeared.
The meat processing companies state that the necessary proof from the supervisor is lacking that prohibited additives were added. In the court's opinion, the NVWA failed to meet its burden of proof to show not only that additives were added, but also that it was a meat preparation and not a meat product.
The judge ultimately upheld the food companies' appeals because the NVWA did not sufficiently prove that the characteristics of fresh meat had not disappeared.
The companies explained that the method of handling the meat leads to a meat product. However, the judge agreed with NVWA that the December 2017 TNO report cited by the companies for this did not prove the existence of meat products. The judge ruled "that all the processes described do not prove the existence of meat products," according to paragraph 13.8 of the ruling.
The gain for the companies is that they were vindicated by the court that the NVWA lacked evidence that they were not meat products. Therefore, the fine decisions contested by the food companies (based on violation of Commodities Act Decree on additives) were overturned by the court with an order that the State pay the costs of the proceedings.
On the other, points of principle in the lawsuit, however, the business lost to the regulator. As a result, the meat processing companies are appealing, and Précon will follow the proceedings.
Because the food industry has a great need for explanation on this subject, the NVWA has published a web dossier for applying the legislation on adding additives (E numbers) to food.
As usual, Précon's Regulatory Affairs consultants are available to you in case you could use a sparring partner in checking labels for compliance with applicable laws and regulations. Feel free to contact us at +31 (0)30 - 65 66 010 or info@precongroup.com.
Source: verdicts.jurisprudence.com
Photo: Frederick Tubiermont
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