Banned from selling insects in Italy, says the Ministry of Health in a circular of dubious value. Examination of the text and its weaknesses
The theme of
insects
at the table has sparked a lively debate, in Italy, on which we have already tried to shed light. A recent note from the Ministry of Health seems to settle the neophobias of some and the expectations of others. If at all, its effectiveness may come into question.
Insects on the table, the note of the Ministry of Health in Italy
The Ministry of Health – with the note ‘Information regarding the use of insects in food with specific reference to the applicability of Regulation (EU) 2015/2283 on ‘novel food‘ (1) – acknowledged the permits issued at the national level, in several member states, for the marketing of certain insect species for food use.
In fact, the transitional regime introduced by the new Novel Foods Regulation provides for the possibility of continuing the sale and serving of such foods – based on national measures prior to 1.1.2018, (2) always preceded by appropriate risk assessments – while waiting for centralized authorizations at the European level.
In Italy, however, the ministry explains, no marketing of insects was allowed before the date of implementation of the aforementioned regulation. And therefore, ‘the marketing as food of an insect or its derivative may be allowed only when a specific authorization is issued at the EU level pursuant to the same Regulation (EU) 2015/2283.’ (3)
The situation is peculiar in two respects:
– on the one hand, Italian companies must be allowed to come to Italy to produce insects for food use as well, in compliance with the hygienic and sanitary rules applicable to the production of food of animal origin. (4) And yet, the relevant products can only be marketed abroad, not also in Italy,
– on the other hand, companies based and licensed in other member countries may sell food containing insects in Italy, according to the Treaty for the Functioning of the Union. The ministerial note does not consider these issues, which could emerge at the instance of the operators concerned as grounds for challenging the conditions of unequal market access.
Free movement of goods, the Court of Justice
La Court of Justice European, in the recent ‘Noria Distribution’ ruling, recalled that ‘the free movement of goods among member states is a fundamental principle of the TFEU that finds its expression in the prohibition, set forth in Article 34 TFEU, of quantitative restrictions on imports among member states as well as of any measure having equivalent effect‘ (5).
‘The prohibition of measures having an effect equivalent to restrictions, enshrined in Article 34 TFEU, covers any trade regulations of member states that may directly or indirectly impede, actually or potentially, intra-EU trade.’ (6)
Any marketing ban measure, according to the ECJ, must be ‘based on a thorough scientific assessment of the actual health risk.’ Therefore, only a concrete health need can justify measures restricting the free movement of goods, and such measures must in any case be proportionate to the identified risk.
In the present case, the ministerial note (which has far less rank and effect than a state law) does not cite any concrete risk assessment as a prerequisite. (7) It will therefore prove difficult, an understatement, to restrict access to the Italian market to products deemed safe (8) in other European countries, based on the opinions of their respective independent scientific authorities.
Dario Dongo
Notes
(1) See Ministry of Health Note, attached.
(2) L.1.1.18 is indeed the date set for the implementation of the new Novel Food Regulation. Cf. Reg. EU 2015/2283, Article 35, Transitional measures
(3) See Note 1
(4) In fact, there are no regulatory obstacles to the authorization in Italy of insect farms and plants for their processing, under a self-control regime that as a matter of course considers the relevant risk analyses, in addition to good hygienic and sanitary practices (GMP, PRP)
(5) See paragraph 17, EU Court of Justice judgment 27.4.2017, Noria Distribution Sarl, C 672/15, at http://curia.europa.eu/juris/document/document.jsf?text=&docid=190163&pageIndex=0&doclang=it&mode=lst&dir=&occ=first&part=1&cid=795817
(6) Idem c.s. paragraph 18
(7) Indeed, on closer inspection, Efsa has already performed a preliminary risk assessment, expressing the substantial absence of human health risks associated with the consumption of insects reared under appropriate hygienic conditions
(8) As they undergo adequate analysis and management of major sources of risk, as also recommended by Efsa
Dario Dongo, lawyer and journalist, PhD in international food law, founder of WIISE (FARE - GIFT - Food Times) and Égalité.
