Germany: Untransparent Law - Translucent Food Producers? The Coming German Food and Feed Act

Last Updated: 14 June 2005
Article by Anthony Sequeira

Originally published March 2005

The legislative process towards a new German Food and Feed Act (Lebensmittel- und Futtermittelgesetzbuch - LFGB) has entered into the next round: ignoring several objections by the Federal Council (Bundesrat), the German Parliament (Bundestag) approved the bill for the LFGB at the end of November 2004. It came as no surprise that the Council requested the appointment of a mediation committee shortly afterwards. The outcome of the coming consultations between the German Parliament and the Federal Council is uncertain but will hopefully reflect some of the legitimate demands of the food industry.

The LFGB would adapt the general principles and requirements on food law as provided by the European Regulation No. 178/2002/EC. The integration of the regimes for food and animal feed into one new legislative act is designed to ensure the Regulation's approach of "food safety from the field to your plate" in Germany. The bill addresses some contradictions between German and European law (for example, the definition of cosmetics) and it is likely to create new controversies about the EU-conformity in other fields. It is particularly questionable that the legislator equates some nutrients that are added to products (for example, minerals) with additives used for a technological purpose. The use of additives for a technological purpose in food in Germany is subject to an approval procedure which would probably be difficult to justify under EC law. There is also good reason to question the restrictive approach of German Law towards food advertising which would remain almost unaltered by the bill.

The legislator appears to be using the occasion to remodel the entire food regime. It is already clear that the explicit objective of more transparency will not be met. The abolition of several separate German acts and their partial integration under the LFGB seems to thin out the thicket of German food law at first glance. Yet, the legislator simply relocates the complexity of food law: in the future some legal issues will be governed by a direct application of the respective European provisions. In other, numerous areas, the LFGB would enable the competent federal ministry to enact new German regulations. In a transitory period some of the old statutory regulations will be applicable. In summary, the task to find the pertinent statutory provisions will at best not become more difficult in the future.

The LFGB bill aims to create a new transparency in the food chain for measures that were not pre-determined by EC law. This objective will not be obtained under the draft as it currently is worded. Worryingly, from a business confidentiality perspective, the bill would entitle any interested party to obtain information on food products from public authorities. The range of information to be provided is wide and the right to information is not limited to cases of health hazards. Any authority would have to disclose, inter alia, information on the composition of food products and their production, non-compliance of the product with legal requirements or monitoring steps by the authorities. The new LFGB stipulates several exceptions from the right to information. Yet, the protection of food producers from disclosure of distorted or out-dated information as well as provisional results about their products is clearly wanting. For example, the LFGB would still allow disclosure of information in matters that are subject to ongoing administrative proceedings. It is also unclear to what extent the disclosing authority is obliged to pre-process information adequately. At present, this obligation is limited to feasible and reasonable measures – a rather unpredictable guideline.

In addition, the new bill will enable food authorities to inform and warn the general public about food products. Warnings are not restricted to health hazards: authorities may also issue warnings to protect consumers against economic disadvantages or in case of nauseous food. It is most likely that a warning would not only affect the sales of the concerned product but the entire market segment.

In view of the potential damages, warnings to protect merely economic interests of consumers can hardly be justified. The new LFGB should therefore clearly confine warnings by state authorities to cases of health threats.

The bill of the new LFGB is deficient in several ways. Especially in food law, the German legislator tends to put consumer protection above legitimate business interests. The coming consultations between the Federal Council and the German Parliament will certainly not be the kick start a review of the German system. An effort towards more EU-conformity may, however, remedy some of the excesses.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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