legal issues in the packaging of food and drinks
DESCRIPTION
Presentation Legal Issues In The Packaging Of Food And Drinks - Bird&Bird Seminar The Hague June 2008TRANSCRIPT
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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