China and EU: different hot-topics in food law

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img_7083Recently I had the pleasure to attend the 2016 Congress of EFLA – European Food Lawyer Association – in Warsaw.

Several food lawyers or in-house counsel of food companies joined the Congress, from almost all EU Countries. The 2-day meeting was very dense with excellent presentations and speeches, and could provide a good sense of what the hottest topic in food law in EU currently are.

Reviewing now the notes that I took during the Congress (or rather only the scribbles that I am able to decipher…) , I can hereby briefly mention some of these topics that keep busy my colleagues in EU:

  1. Internal harmonization still far from over.As EU tries to reduce its regulatory intervention – along as it pursues its REFIT policy (evaluation on the EU regulation “fitness” level) –member states might be tempted by “filling in the gap” by issuing national level regulation. However, while EU commission follows a regulatory-simplification agenda, member states might have different priorities. This – in a political union of 27.5 (UK is temporarily counted as 0.5..) independent States – might increase risks of reduced internal market harmonization. In the same perspective, around 20% of food products are still not covered by mutual recognition principle within EU. Enforcement and commitment by member states in this sense should improve. New EU regulation (and French “counter-regulation”) for production site labeling seems a good example of what harmonization implies. Finally, the co-existence of 24 official languages (!) can – sometimes – generate inconsistencies in the various versions of a same regulation…
  2. Clean labeling and nutrient profile.A significant trend by food companies is to evolve towards “simplified” labels, and emphasis on “clean” claims. This can be a regulatory challenge at various levels. At the same time, the everlasting project to introduce mandatory nutrient profile is far from over – 10 years later since its start. “Local” labeling escalate, which sometimes might conflict with Geographic Indications, sometimes may result in misleading messages to consumers.
  3. Novel Food.Regulation seems to lack protection for proprietary data filed with EU authorities for approval. This may trigger from one side lack of transparency from food companies; and from the other side cooperation lack of cooperation between authorities/universities/food business operators. Regulation imposes a high burden on food companies in term of tests and related costs. Approval in EU for novel food takes significantly longer (with an average of 36 months) than most foreign main countries – including China.
  4. Parnuts”. Repeal of the regulation applicable for the general category of “food for people with particular nutrition requirements” relegates – not for long hopefully – in a unregulated limbo milks based drinks for infants and sports foods.

An interesting comparison can be made between food-law debate in Europe and in China.

Similarly to EU – but for different reasons – China also still faces unclear overlapping of technical regulations/standards: mandatory national standards vs voluntary industry/local/enterprise standards. While this is not due to a “REFIT”-kind approach by national level authorities, it is however true that gaps/loopholes/vagueness (unclear definitions, unclear scopes, etc..) in national standards definitely give local regulation a chance to sneak in. This may result locally (province or even city level) in different approaches/burden from authorities. Despite great efforts, harmonization within China is far from over.

Harmonization with international standards/Codex (in some cases, also due to lack of update of PRC standards with scientific discovery/debate) is also a problem for specific products – negatively affecting international trade. This is clearly stressed in the 2016/2017 Position Paper of European Chamber of Commerce in China , which has been issued just few weeks ago.

On the other hand, in these last years, China is undergoing a unique evolution both in its PRC food regulation as well as in expansion of its internal market, mostly fostered by ecommerce.

Differently from EU – at least as long as I can see – great focus in China is then shifted on the (expected) increasing regulation of cross-border e-commerce (which, as of today, is rather little regulated – to use euphemism – when it comes to food compliance….), as well as on some important implementing measures of food safety law – namely, in the areas of health food and special medical purpose food registration and compliance.

From labeling perspective, use of claims is rather high in China, but most of the times these claims are not regulated (China only regulates 28 health claims and 65 nutrition function claims, while in EU nutritional function claims only are more than 200). Civil/administrative actions by consumers or by authorities for breach of advertising law or consumer-protection provisions – also triggered by the notorious and scary 10-fold compensation that a (professional?) consumer is allowed to claim (differently from EU) against the producer or the seller. An enlargement in the health-claims list is on the agenda.


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