Italian MEP Marco Dreosto tries to shed light on the extension of the derogation from Hygiene Regulation 2 (EC Reg. 853/04) to online sales by small local cheese producers. (1)
European Commissioner for Health and Food Safety Stella Kyriakides, in her response, distinguishes between consumer and wholesale scenarios. (2) An in-depth study.
Hygiene Regulation 2
Reg. EC 853/04 – known as Hygiene 2, since it is the second in the succession of the so-called Hygiene Package (3)-establishes specific hygiene rules for food of animal origin. (4) In essence:
– obligation of plant authorization by the Public Veterinary Services (instead of only registration, on the other hand provided for the generality of plant products and those composed with processed products of animal origin),
– additional hygiene requirements, which involve significant investment in the design and implementation of facilities, and equipment (so-called clean room). As well as in procedures, training and dedicated resources,
– identification mark, periodic visits by public veterinarians.
Hygiene Regulation 2, the waiver
The Hygiene 2 regulation, in general terms, does not apply to ‘retail‘ activities (EC Reg. 853/04, Article 1.5.a). Moreover, the European Commission-in its questions and answers on the application of certain rules of the Hygiene Package (5)-added the possibility of derogation from the application of Reg. EC 853/2004 for small producers of milk and milk products who perform direct and local market sales. Equating such activities to those of commerce.
‘Cheese production at the farm must in principle comply with the appropriate general and specific EU requirements on food hygiene and an approval is needed.
However, when cheese is manufactured and sold entirely at the farm or at a local market (e.g. weekly market, farmers market etc.) directly to final consumers, this activity is covered by the notion of retail.
Only general hygiene requirements are therefore applicable and in this case no approval is needed. In addition to that, Member States may use the flexibility provisions and adopt national measures in order to adapt the requirements on the construction, layout and equipment for these establishments. The existence of such national measures should be checked with the competent authority.’ (5)
Online sales of small cheese producers, parliamentary question
Hon. Marco Dreosto (League, Identity and Democracy Group) tried to ask the European Commission for an update on the above in parliamentary question 15.4.22. (1) The MEP-originally from Spilimbergo, Pordenone province-highlighted how, in the dozen years since the Brussels Q&A on the Hygiene Package, digitization has also involved small huts (or farms, in the autonomous provinces of Trento and Bolzano).
I social networks have also taken on a role for farmers of a few cows, who through them allow metropolitan citizens to escape the mugginess to immerse themselves in nature, with the benefit of a cheese board sometimes produced in the same alpine pasture. It therefore needs to be clarified whether–in the event that the ‘direct sale‘ is mediated by a computer device and a shipment–the exemption from the strict rules in Hygiene 2 still applies.
European Commission, the answer
The European Commission, in its reply 15.6.22 to the said parliamentary question, recalled the definition of ‘retail‘ in Reg. EC 178/02. Which includes, according to DG Sante, ‘any sale or delivery to the final consumer, including online sales and wholesale outlets.’ (2)
The wholesale of food of animal origin is, moreover, subject to Hygiene Regulation 2 (Reg. EC 853/04, Art. 1.5.b), ‘except, among other things, when such activity is marginal, localized and restricted‘ (Art. 1.5.b.ii). And therefore:
– ‘if small dairies only carry out direct sales to final consumers, they are not required‘ to apply Hygiene 2 (EC Reg. 853/04, Article 1.5.a). Subject to the power of member states to adopt national measures to apply its requirements to such direct sales as well,
– on the contrary, ‘If such dairies are wholesalers, they must comply with the requirements of Regulation (EC) No. 853/2004, even if they carry out a small business of direct supply to consumers in premises attached to the business establishment‘. (2)
Interim conclusions
Interpretation offered by the Commission does not appear consistent with the dictate of the Hygiene 2 regulation, where the activity ‘marginal, localized and restricted‘ is expressly excluded from its scope of application (EC Reg. 853/04, Article 1.5.b) even in the case of wholesale sales, i.e., to traders rather than final consumers. The circumstance that localization is ‘relocated‘, in the case of online sales, does not seem to exclude the marginality and narrowness of sales, after all. (6)
Authorization on the other hand should not come to be understood as harassment, even by small farmers. Indeed, the veterinary check prior to authorization can be understood as an opportunity, the best advice a small producer can receive to apply in practice the ‘food safety culture’ that the European legislator recently evoked in Reg. EU 382/2021. (7)
The social role of the official veterinary service
An excellent example of the prevention support of the veterinary food hygiene service is that organized by the eponymous service of AUSSL No. 7 Pedemontana, under the direction of Dr. Fabrizio De Stefani. The writer has had the opportunity to observe firsthand the great effectiveness of this service, which well expresses the function of official control introduced precisely in the Hygiene Package, thanks to Reg. EC 882/04 (later repealed by reg. 2017/625). (8)
Not a gendarme , but a keen observer of the reality of premises and equipment, as well as the anthropological factor of verifying the aptitude of the caci-producing candidate to understand the meaning of the rules and effectively apply the prescriptions received. In view of a clearance that still postulates a further visit for the 9 proof. In fact, from 853. Turning on brains can save the world.
Dario Dongo
Notes
(1) European Parliament. Question 15.4.22 to the European Commission, with request for written answer, signed by Hon. Marco Dreosto. Online food sales. (E-001518/2022). https://www.europarl.europa.eu/doceo/document/E-9-2022-001518_EN.html
(2) European Commission. Reply 15.6.22 to parliamentary question E-001518/2022. https://www.europarl.europa.eu/doceo/document/E-9-2022-001518-ASW_EN.html
(3) Hygiene Package, reg. EC 852/04 et seq. For more details see theebook ‘
Food safety, mandatory rules and voluntary standards
‘
(4) Reg. EC 853/04, laying down specific hygiene rules for food of animal origin. Text updated 10/21/21 on Eur-Lex, https://bit.ly/3I5SPAX
(5) See Q&A 8 on Commission staff working document on the Understanding of certain provisions on flexibility provided in the Hygiene Package. Frequently Asked Questions Guidelines for food business operators. SEC(2010) 985 final. https://bit.ly/3I6ZDi0
(6) Dario Dongo. Nutrition declaration, exemption to micro-businesses should also apply to ecommerce. Here’s why. FARE(Food and Agriculture Requirements). 2.12.16,
(7) Dario Dongo. https://www.greatitalianfoodtrade.it/sicurezza/reg-ue-2081-382-cultura-della-sicurezza-redistribuzione-alimenti-gestione-allergeni/, GIFT(Great Italian Food Trade) 9.3.21
(8) Dario Dongo.
Official public controls, EU Regulation 2017/625 kicks off.
GIFT(Great Italian Food Trade) 18.12.19
Dario Dongo, lawyer and journalist, PhD in international food law, founder of WIISE (FARE - GIFT - Food Times) and Égalité.
