Whilst the Food Safety Act 1990 is the primary source of domestic food law in the UK, Regulation (EC) 178/2002 is the equivalent at the European level. The latter has, however, taken the lead role over the last decade and to a large extent has been implemented by domestic secondary legislation made under the 1990 Act. The Regulation applies to food and feed, and it introduced new requirements concerning import, export, safety, traceability and withdrawal of products. The aim being to establish a comprehensive framework of food law from “farm to fork”1 having the following objective:
This Regulation provides the basis for the assurance of a high level of protection of human health and consumers' interest in relation to food, taking into account in particular the diversity in the supply of food including traditional products, whilst ensuring the effective functioning of the internal market.2
Regulation (EC) 178/2002 also established the European Food Safety Authority.
Regulation (EC) 178/2002 should be read in conjunction with guidance issued by the Commission in 20053 on Articles 11, 12 and 17 to 20 and by the Food Standards Agency in 20074 on compliance with Articles 14, 16, 18 and 19 of Regulation (EC) 178/2002 covering food safety, traceability and the need to notify, withdraw and/or recall products not conforming with the food safety requirements. The Food Standards Agency agreed with the Commission a more flexible approach for businesses in the United Kingdom.
The Regulation establishes common definitions in all EU Member States and among them widely defines ‘food law’ to include measures that extend beyond food and include, for example, all measures relating to materials and substances in contact with food or which may have a direct or indirect impact on the safety of food. The definitions of ‘food’ and ‘feed’ are set out in Articles 2 and 3 respectively. Article 2 provides:
For the purposes of this Regulation, ‘food’ (or ‘foodstuff’) means any substance or product, whether processed, partially processed or unprocessed, intended to be, or reasonably expected to be ingested by humans.
‘Food’ includes drink, chewing gum and any substance, including water, intentionally incorporated into the food during its manufacture, preparation or treatment. It includes water after the point of compliance as defined in Article 6 of Directive 98/83/EC and without prejudice to the requirements of Directives 80/778/EEC and 98/83/EC.
‘Food’ shall not include:
(b) live animals unless they are prepared for placing on the market for human consumption;
(c) plants prior to harvesting;
(d) medicinal products within the meaning of Council Directives 65/65/EEC (1) and 92/73/EEC (2);
(e) cosmetics within the meaning of Council Directive 76/768/EEC (3);
(f) tobacco and tobacco products within the meaning of Council Directive 89/622/EEC (4);
(g) narcotic or psychotropic substances within the meaning of the United Nations Single Convention on Narcotic Drugs, 1961, and the United Nations Convention on Psychotropic Substances, 1971;
(h) residues and contaminants.
Oysters and other live shellfish fall within the definition of ‘food’ where, in accordance with paragraph (b) above, they are prepared for placing on the market for human consumption.
Where a product falls within the definition of both a ‘food’ and a ‘medicinal product’ within the meaning of paragraph (d) above, EU law specific to medicinal products alone applies.5 It has been held that a garlic capsule is not a medicinal product.6
In the case of ‘feed’ Article 3 provides:
‘(F)eed’ (or ‘feedingstuff’) means any substance or product, including additives, whether processed, partially processed or unprocessed, intended to be used for oral feeding to animals.
3 European Commission, Guidance on the Implementation of Articles 11, 12, 16, 17, 18, 19 and 20 of Regulation (EC) 178/2002 on General Food Law, January 2005
4 Food Standards Agency, Guidance Notes for Food Business Operators on Food Safety, Traceability, Product Withdrawal and Recall, July 2007