Food and consumer organisations claim that the European Commission’s draft regulation on acrylamide is based on a wrong regulation and this has a direct effect on the lack of maximum levels, euractiv.com has learned.
Safe Food Advocacy Europe (SAFE), in conjunction with Corporate Europe Observatory (CEO) and ClientEarth, have sent a legal letter to EU Health Commissioner Vytenis Andriukaitis claiming that the legal basis of the Draft Regulation on acrylamide is ‘wrong’ and does not comply with the higher-ranking law.
Acrylamide is a chemical compound that typically forms in food products such as potato chips, bread, biscuits, and coffee, during high-temperature processing (above 120°), including frying, baking, and roasting [See background].
The European Commission declared its intention to adopt binding measures to tackle acrylamide in food on 25 October, but an EU spokesperson recently told EURACTIV that the vote on the draft regulation on acrylamide “could be foreseen at a later stage next year”.
Wrong legal basis
In a letter seen by EURACTIV, the NGOs stressed that in the acrylamide case, the executive correctly focuses on the provision of “a high level of human health protection” of the Treaty on the Functioning of the European Union.
However, the letter stated that the Commission’s preparatory work presented “troubling elements that should be corrected before the approval of the final text”.
The NGOs claim that the draft regulation has as an explicit legal basis in the Hygiene Regulation, which lays down general rules for food business operators on the hygiene of foodstuffs.
But according to the NGOs, the correct legal basis is the Regulation on Contaminants, which sets maximum levels for certain contaminants in foodstuffs, as the European Food Safety Authority (EFSA) itself dealt acrylamide as a contaminant.
The organisations noted that the main legal framework for contaminants is the Regulation No 315-1993 which defines a contaminant as “any substance not intentionally added to food which is present in such food as a result of the production, manufacture, processing, preparation, treatment, packing, packaging, transport or holding of such food or as a result of environmental contamination” and the Regulation of Contaminants refers to this definition.
The letter emphasised that it was “emblematic” that even EFSA indicated these two regulations are the correct legal basis for contaminants.
“Such error could justify the future annulment of the Regulation at hand, as already occurred in similar cases,” the letter reads.
Consumer organisations note that the incorrect legal basis directly affects the “maximum levels” provision.
Currently, the draft regulation refers to indicative values that are not mandatory and the NGOs want a binding maximum level of acrylamide for different food categories.
SAFE stresses that because of the legal problems with the draft regulation, there is an absence of maximum levels of acrylamide in food, which is contrary to high standards of protection for human health.
It also noted that the choice of legal foundation should rest on objective factors which are amenable to judicial review.