The Rapid Alert System for Food and Feed ("RASFF") aims to provide a comprehensive EU-wide network for food risk communication. Articles 19-20 of Regulation 178/2002 (the "General Food Law") require food and feed operators to inform the competent national authorities of foods which they know or suspect are not in compliance with safety requirements. If an operator's food or feed product poses a serious risk to human/animal health and/or the environment and this is communicated by national authorities to the European Commission's RASFF network it can lead to a high profile, multijurisdictional recall. Even those food or feed business operators whose product is compliant can suffer as a result of the overall reputational damage of a RASFF notification to a particular food, commodity group or country of origin. These business risks are heightened by the fact that RASFF notifications are publically accessible. Recent legislation and upcoming reforms will further affect the functioning of RASFF.
RASFF has been functioning in different guises since 1979 and has been the subject of controversy on a number of occasions. Most recently, RASFF notifications incorrectly linking the e-coli outbreak in Germany to Spanish cucumbers caused commercial disaster for the agricultural sector in Spain. For that reason, it is vital that notifications made through RASFF adequately respect the rights of food and feed business operators.
Under Article 50 of the General Food Law, food safety authorities in EU Member States must designate a single "contact point" to liaise with the RASFF network. Each contact point must notify information to the European Commission (the "Commission") relating to a "serious direct or indirect risk to human health deriving from food or feed". The Commission must then transmit this information to all other EU Member States and to non-EU countries to which the particular food or feed at issue has been exported, via the RASFF system. While RASFF notifications are available to the public online via the RASFF Portal, the information is limited to product identification, the nature of the risk and the measures taken and does not divulge brand names or manufacturers' details.
Since the adoption of Regulation 183/2005 on feed hygiene a notification may be made in relation to a feed product where it poses a serious risk not only to human health but also to "animal health or to the environment".
Since January 2011, Regulation 16/2011 has established new operating rules for RASFF and clarified a number of issues. The scope of RASFF has been expanded somewhat by requiring notification not only of food and feed risks posing a serious risk to human/animal health and/or the environment, but also to "risk of a lesser gravity or urgency". In the past there had been discussion about whether RASFF could be used to communicate information on noncompliant food which did not pose a serious health risk.
Italian competent authorities caused controversy in 2010 when they made a RASFF notification in relation to batches of mozzarella cheese balls which had turned blue due to a bacterial contamination. The contamination was nontoxic and deemed to pose no serious risk to human health. Instead the mozzarella balls were regarded as unfit for human consumption, as they were not in accordance with the normal conditions of consumer use of the food. While foods unfit for human consumption may not be placed on the market, the General Food Law does not strictly require that they be notified via RASFF.
Regulation 16/2011 divides notifications into three main categories:
1. Alert notifications - information about a risk that requires or might require rapid action in another Member State;
2. Information notifications - information about a risk that does not require rapid action in another Member State, and
3. Border Rejection notifications - information concerning the rejection of a batch, container or cargo of food or feed at a border post of the EU.
In practice, these categories simply reflect the way the Commission and Member States were using RASFF prior to the adoption of Regulation 16/2011.
A strict deadline of 48 hours has now been established for competent authorities to communicate alert notifications to the European Commission. However Regulation 16/2011 also now states that alert notifications should not be unduly delayed where all relevant information has yet to be collected. Each contact point in a Member State must have an on-duty officer who is reachable outside office hours on a 24-hour/7-day-a-week basis.
On receipt of a notification by a Member State contact point, Article 50 of the General Food Law imposes a strict requirement on the Commission to transmit that notification. However, this obligation has attracted criticism because of the fact that the Commission is officially obliged to disseminate RASFF notifications without the ability to verify their accuracy, as occurred in the case of Malaguti-Vezinhet SA v Commission. In that case, the Court of Justice refused to find the Commission responsible for an inaccurate notification of pesticides in apples made by Iceland, deeming it to be the fault of that state. However, under Regulation 16/2011 a Member State may now request that an unfounded or wrongly transmitted notification be removed from RASFF, provided there is agreement from the notifying Member State.
Administrative Co-operation between competent authorities
Apart from RASFF, Member States are also required to contact each other bi-laterally, in the event that a product coming from another Member State ("Member State of dispatch") constitutes a risk to human/animal health or a serious infringement of food or feed law. This is known as administrative co-operation under Article 38 of Regulation 882/2004 (the "Official Controls Regulation").
Importantly, the making of a RASFF notification cannot satisfy the separate and independent duties of administrative co-operation with other competent authorities under the Official Controls Regulation. Effective bi-lateral communication and problem-solving between competent authorities may be vital in minimising or even avoiding entirely the effects of any possible subsequent RASFF alert notification. Therefore, it is in food and feed business operators' best interests that competent authorities engage in proper administrative co-operation.
This issue has featured in debates about the upcoming reform of the Official Controls Regulation and the Commission has stated that it intends to propose reforms of the Article 38 provision to strengthen administrative co-operation between competent authorities. The Commission is expected to publish these proposals before the end of 2012.
Food and feed business operators must always comply with their primary responsibility to inform national authorities not only of a serious risk to human/animal health and/ or the environment but also of a food or feed which they know or suspect is not in compliance with food or feed safety requirements and is no longer in their immediate control. The ultimate decision over what information is to be notified to RASFF lies with the contact points in the different EU Member States.
However it is important that food business operators are also aware of the rules which the Commission and contact points themselves must follow as part of a RASFF notification. Particularly important is the duty not to divulge brand names or manufacturer's details, the discretion to remove unfounded notifications and their overall duty to engage in administrative co-operation with Member States of dispatch.
This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.