Public enforcement

Legal Issues in the Packaging of Food and Drinks

June 27, 2008Tim Hesselink – International Trade & Customs

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HEADLINES

“Consumers draw benefit from labelling detergents”

“Health claims cinnamon capsules illegal”

“Dutch Food Authority does not advise against consumption probiotic drinks”

“Labelling of cheese products not always correct”

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LABELLING FOODSTUFFS

LEGISLATION LABELLING FOODSTUFFS

INSPECTION AT IM- AND EXPORT

FOOD AUTHORITY INSPECTION

VIOLATIONS LEGISLATION LABELLING FOODSTUFFS

ENFORCEMENT

PITFALLS TRADE & INDUSTRY

RECOMMENDATIONS

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LEGISLATION LABELLING FOODSTUFFS

LEVEL 1: EUROPEAN LEGISLATION (GENERAL)REGULATION (EC) 178/2002: GENERAL FOOD LAW

LEVEL 2: EUROPEAN LEGISLATION (SPECIFIC EXAMPLES)

REGULATION (EC) 1924/2006 re. NUTRITION AND HEALTH CLAIMS (“LOW FAT”/”NO ADDED SUGAR”)

DIRECTIVE 2003/13/EC re. LABELLING, PRESENTATION AND ADVERTISING FOODSTUFFS (SEE COM(2008) 40 FINAL)

DIRECTIVE 90/496/EEC re. NUTRITION LABELLING FOR FOODSTUFFS (SEE COM(2008) 40 FINAL)

DIRECTIVE 87/250/EEC re. INDICATION OF ALCOHOLIC STRENGTH BY VOLUME IN LABELLING OF ALCOHOLIC BEVERAGES (SEE COM(2008) 40 FINAL)

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LEGISLATION LABELLING FOODSTUFFS (2)

LEVEL 3: NATIONAL LEGISLATION (GENERAL)Dutch Commodities Act (“Warenwet”)

LEVEL 4: NATIONAL LEGISLATION (SPECIFIC EXAMPLES)

DUTCH COMMODITIES DECREE re. LABELLING OF FOODSTUFFS (“Warenwetbesluit Etikettering van levensmiddelen”)

DUTCH COMMODITIES DECREE re. IMPORT OF FOODSTUFFS FROM THIRD COUNTRIES (“Warenwetbesluit Invoer van levensmiddelen uit derde landen”)

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INSPECTION AT IM- AND EXPORT

FOODSTUFFS IMPORTED INTO THE ECAPPLICATION COMMERCIAL POLICY MEASURES

CHARGING DUTIES LEGALLY DUE

COMPLY WITH OTHER FORMALITIES re. THE IMPORT OF GOODS:

AGRICULTURAL POLICY

ENVIRONMENTAL LAW

SAFETY

PUBLIC ORDER

PUBLIC HEALTH (PRODUCT- AND FOODSAFETY)

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INSPECTION AT IM- AND EXPORT (2)

FOODSTUFFS ARE BEING INSPECTED AT THE ENTRY INTO THE EC BY DUTCH CUSTOMS

IF DUTCH CUSTOMS ASSUMES THAT CERTAIN FOODSTUFFS DO NOT COMPLY WITH THE LEGAL REQUIREMENTS FOR FOOD SAFETY, CUSTOMS INFORMS THE FOOD AND CONSUMER PRODUCT SAFETY AUTHORITY (VOEDSEL EN WARENAUTORITEIT: VWA)

THE VWA PRODUCT SPECIALIST ADVISES WHETHER THE FOODSTUFFS MEET THE LEGAL REQUIREMENTS

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INSPECTION AT IM- AND EXPORT (3)

IF THE VWA PRODUCT SPECIALIST DECIDES THE FOODSTUFFS DO NOT MEET THE LEGAL REQUIREMENTS, DUTCH CUSTOMS WILL NOT RELEASE THE PRODUCTS

THIS VWA CONCLUSION CANNOT BE CHALLENGED: THE VWA CONCLUSION IS NOT A DECISION SUBJECT TO AN ADMINISTRATIVE APPEAL UNDER THE DUTCH GENERAL ADMINISTRATIVE LAW ACT (CASE LAW)

NO CASE LAW (YET) WHETHER DECISION DUTCH CUSTOMS TO DENY RELEASE CAN BE CHALLENGED IN AN ADMINISTRATIVE APPEAL

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FOOD AUTHORITY INSPECTION

THE VWA NOT ONLY INSPECTS FOODSTUFFS AT IMPORTATION BUT ALSO AT:

FOOD PREMISES

WAREHOUSES

DISTRIBUTION CENTERS

STORES

TRANSPORTATION

ETC.

THE VWA PRODUCT SPECIALIST ADVISES WHETHER THE FOODSTUFFS MEET THE LEGAL REQUIREMENTS

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VIOLATIONS LEGISLATION LABELLING FOODSTUFFS

A VIOLATION OF CERTAIN ARTICLES OF THE DUTCH COMMODITIES ACT IS CONSIDERED AN OFFENCE (DUTCH LAW ON ECONOMIC OFFENCES)

THE DUTCH COMMODITIES ACT PROVIDES FOR GENERAL RULES, WHICH ARE FURHTER SPECIFIED IN DECREES (e.g. DUTCH COMMODITIES DECREE re. LABELLING OF FOODSTUFFS)

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VIOLATIONS LEGISLATION LABELLING FOODSTUFFS (2)

ARTICLE 2 DUTCH COMMODITIES DECREE re. LABELLING OF FOODSTUFFS:

“It is illegal to trade foodstuffs other than in compliance with the requirements as set out in this decree with regard to labelling, presentation and advertising”

ARTICLE 23 DUTCH COMMODITIES DECREE re. LABELLING OF FOODSTUFFS:

“Indications and statements of foodstuffs anyway have to bementioned in the Dutch language”

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ENFORCEMENT

IN CASE THE VWA HAS ESTABLISHED A VIOLATION OF THE COMMODITIES ACT (= ECONOMIC OFFENCE), THE VWA HAS TWO OPTIONS:

DEAL WITH THE CASE ON BASIS OF THE COMMODITIES ACT (ADMINISTRATIVE ROUTE)

HAND OVER THE CASE TO THE PUBLIC PROSECUTIONS DEPARTMENT (CRIMINAL PROCEEDINGS ROUTE)

SPECIAL GUIDELINES HAVE BEEN ADOPTED FOR THE DECISION WHETHER TO FOLLOW THE ADMINISTRATIVE OR CRIMINAL PROSECUTION ROUTE

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ENFORCEMENT: ADMINISTRATIVE OR CRIMINAL?

THE GUIDELINES FOR STARTING CIMINAL PROCEEDINGS IN RELATION TO DUTCH COMMODITIES ACT MENTION 5 SITUATIONS WHICH RESULT INSTANTLY IN CRIMINAL PROCEEDINGS:

• IF THE INTENTIONALLY OR RECKLESS OFFENCE CREATES A DIRECT THREAT TO PUBLIC HEALTH

• IF THE PENALTY IS EXCEEDED BY THE PROFIT MADE FROM THE OFFENCE

• IF CRIMINAL ENFORCEMENT IS NECESSARY (e.g. CONFISCATION)

• IN CASE OF CONCURRENCE OF OFFENCES• IN CASE OF REPEATED OFFENCES WHERE

ADMINISTRATIVE PENALTIES HAD NO EFFECT

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Example

DECISION BREDA DISTRICT COURT (CRIMINAL SECTION) AUGUST 1, 2005:

TRADE/SALE/STORAGE WHIP CREAM CANS WITH NO DUTCH LABEL IS A VIOLATION OF ART. 23 DUTCH COMMODITIES DECREE re. LABELLING OF FOODSTUFFS

BECAUSE OF REPEATED OFFENCES FOLLOWING CRIMINAL PROSECUTION ROUTE INSTEAD OF ADMINISTRATIVE ROUTE WAS JUSTIFIED

CRIMINAL PENALTIES OF EUR 300,-- PER OFFENCE !!

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ENFORCEMENT: ADMINISTRATIVE

IF SETTLEMENT BY A CRIMINAL COURT IS AN OPTION, THE VWA ASSESSES PER CASE WHICH ROUTE (ADMINISTRATIVE OR CRIMINAL) PROVIDES THE BEST APPROACH

THE FOLLOWING CRITERIA ARE CONSIDERED IN THIS ASSESSMENT:

IF THE DAMAGE OCCURED FROM THE OFFENCE EXCEEDS EUR 5,000EMERGENCY APPROACH (VWA EMERGENCY PLAN)PERSONAL INJURYDESIRABILITY TO CONFISCATION OF ILLEGALLY OBTAINED PROFITSPROJECT BASED APPROACHDESIRABILITY TO HAVE A PUBLIC CRIMINAL SESSIONDESIRABILITY TO OBTAIN INTERNATIONAL LEGAL ASSISTANCEACT AGAINST CENTRAL GOVERNMENTACT AGAINST EXECUTIVE POSITIONS

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ENFORCEMENT: ADMINISTRATIVE (2)

PUNISHMENTS AND ADMINISTRATIVE MEASURES ACCORDING TO THE DUTCH COMMODITIES ACT:

ADMINISTRATIVE ENFORCEMENT (e.g. RECALL or RE-LABELLING)

ADMINISTRATIVE PENALTY: EUR 450 – EUR 1,360 (MINISTER OF HEALTH, WELFARE AND SPORT)

TEMPORARY PROHIBITION ON:THE MANUFACTURE, TREATMENT, TRADE, PROCESSING, PACKAGING OR TRANSPORT OF FOODSTUFFS,

FOR WHICH SUFFICIENT EVIDENCE EXISTS OF A THREAT OF PUBLIC HEALTH,

UNTIL AN AUDIT IN RESPECT OF THESE FOODSTUFFS HAS BEEN COMPLETED (e.g. ANALYSIS OF SAMPLES)

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ENFORCEMENT: ADMINISTRATIVE (3)

CONFISCATION OF FOODSTUFFS (MINISTER OF HEALTH, WELFARE AND SPORT)

DESTRUCTION OF FOODSTUFFS (MINISTER OF HEALTH, WELFARE AND SPORT)

VWA DECISIONS STATING ADMINISTRATIVE MEASURE OR PUNISHMENT ARE SUBJECT TO AN ADMINISTRATIVE APPEAL (NOT THE VWA DECISION STATING THERE IS A VIOLATION)

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ENFORCEMENT: CRIMINAL PROCEEDINGS

PURSUANT TO DUTCH LAW ON ECONOMIC OFFENCES INVESTIGATING OFFICERS (OF THE VWA) HAVE SPECIAL INVESTIGATIVE POWERS:

CONFISCATION OF FOODSTUFFS

ORDER INSPECTION OF RECORDS

TAKE SAMPLES

INSPECTION OF TRANSPORTATION VEHICLES

ENTERING PLACES

AFTER A CONVICTION OF AN ECONOMIC OFFENCE, THE FOLLOWING PUNISHMENTS AND MEASURES CAN BE ORDERED BY THE COURT

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ENFORCEMENT: CRIMINAL PROCEEDINGS (2)

PUNISHMENTS (ART. 6 and 7 DUTCH LAW ON ECONOMIC OFFENCES):

IMPRISONMENT

COMMUNITY SERVICE

PENALTY

DEPRIVATION OF RIGHT (REMOVAL FROM CERTAIN OFFICES, BEING COUNSEL, ETC.)

WHOLLY OR PARTIALLY CLOSE DOWN COMPANY OF CONVICTED

CONFISCATE FOODSTUFFS OR OBJECTS WHICH RELATE TO THE OFFENCE

PUBLICATION OF THE COURT DECISION

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ENFORCEMENT: CRIMINAL PROCEEDINGS (3)

MEASURES (ART. 8 DUTCH LAW ON ECONOMIC OFFENCES);

CONFISCATION

CONFISCATION OF ILLEGALLY OBTAINED PROFITS

COMPENSATION

ADMINISTRATION ORDER COMPANY

IMPOSE AN OBLIGATION TO ANNULL THE VIOLATION

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ENFORCEMENT: CRIMINAL PROCEEDINGS (4)

THE PUBLIC PROSECUTION DEPARTMENT COULD ALSO PROPOSE A OUT-OF-COURT SETTLEMENT INSTEAD OF STARTING PROSECUTION

“BUY OFF” CRIMINAL PROSECUTION

THIS CAN BE DONE WITHOUT ADMISSION OF GUILT

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PITFALLS TRADE & INDUSTRY

THE VWA CONCLUSION CANNOT BE CHALLENGED: THE VWA CONCLUSION IS NOT A DECISION SUBJECT TO AN ADMINISTRATIVE APPEAL UNDER THE DUTCH GENERAL ADMINISTRATIVE LAW ACT (CASE LAW)

NO CASE LAW (YET) WHETHER DECISION DUTCH CUSTOMS TO DENY RELEASE CAN BE CHALLENGED IN AN ADMINISTRATIVE APPEAL

ONLY LEGAL PROTECTION IN RETROSPECT AT ADMINISTRATIVE COURT OR CRIMINAL COURT

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RECOMMENDATIONS

IF YOUR FOODSTUFFS ARE BEING INSPECTED BY THE VWA, MAKE SURE THEY TAKE MORE THAN ONE SAMPLE

REQUEST THE VWA FOR A COPY OF THE RESULTS OF THE ANALYSYS

OPERATE PRO-ACTIVE FOLLOWING AN AUDIT

IF POSSIBLE TRY TO NEGOTIATE WITH VWA – PREVENT CRIMINAL PROCEEDINGS

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QUESTIONS ?

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THANK YOU