On April 27, 2021, Act No. 174/2021 Coll. was published in the Collection of Laws, which, among other things, amends Act No. 110/1997 Coll., on Food and Tobacco Products and on amendments to Certain Related Acts, as amended (the “Food and Tobacco Products Act”). In addition to the Food and Tobacco Products Act, there are also amendments to the State Agricultural and Food Inspection Authority Act or the Public Procurement Act.
In general
The amendment brings several changes both within the regulation of the activities of food business operators and within the framework of increasing consumer protection or responsible procurement.
The most significant changes, which are discussed in detail below, including in particular:
- a ban on dual quality food,
- clarification of the notification obligation of the food business operator,
- modification of the producer’s labeling rules,
- adjustment of rules for handling unpacked food,
- adjustment of rules for food disposal,
- tightening of conditions for the use of the designation “Czech food”,
- clarification of the mechanism for providing food to non-profit organizations by retail, adjustment of control rules,
- introduction of new conditions for participation in the tender for food supply,
- introduction of legal regulation of control of food of a new type, the component of which is insects, or
- adjustment of control processes of administrative bodies.
In addition to transposing the new European Regulation (EU) 2017/625 of the European Parliament and of the Council on official controls and other official activities, and other related European legislation, the amendment also focuses, among other things, on regulating the much-discussed issue of dual food quality.
Prohibition of dual quality food
The introduction of a ban on dual food quality, as this institute can be simply described, is a fundamental change brought about by the amendment. As dual quality products, we refer to products interchangeable with products of inferior quality produced in the member states of the European Union intended for the European market.
Thus, Czech food and foreign food may seem identical at first glance, but on closer inspection of the composition, we come across differences, both in the amount of added food ingredients and in their quality. According to the European Union, the dual quality of food is inherently misleading, so it falls into the category of unfair competition practices and as such is prohibited.
The directive on unfair commercial practices of the European Union, which is followed by the amendment, does not contain a sharp ban on dual quality food. In this case, it is provided by the amendment to the Food and Tobacco Products Act.
The amendment regulates the above-mentioned issues in the new provisions of Section 10 (1) (f) and (g), which provide that: ‘The placing on the market of food […] shall be prohibited:
- containing substances in conflict with the requirements for the composition of food supplements or substances prohibited in the production of food according to the Decree on Food Supplements and the composition of food; and
- seemingly identical to food placed on the market in the other Member States of the European Union, although the food placed on the market in the Czech Republic has a significantly different composition or properties unless justified by justified and objective facts and provided with easily accessible and sufficient information on this different composition or properties. “
In this case, we can talk about the so-called “hard ban” of dual quality food, which will, after its entry into force, exclude the sale of dual quality products in Czech stores.
Compliance with the double quality ban will be supervised by the State Agricultural and Food Inspection Authority, which will also be the authorized body for imposing fines for violating the ban. These can reach up to CZK 50 million.
This change will take effect on May 12, 2021.
Notification obligation of the food business operator
The operator of the food business has the provisions of Section 3 (i) of the Food and Tobacco Products Act, the obligation to notify the competent supervisory authority in paper or electronic form of the commencement, amendment, or termination of the activity, at the latest on the day on which these facts occurred.
This notification must state and update on the date of the change (i) the name, surname or business name, registered office and address of the establishment if it is a natural person, or the business name or name, registered office and address of the establishment, if it is a legal person, (ii) the identification number of the person, (iii) the subject of the activity or business and the amendment also adds the obligation to state (iv) the specific activities carried out by the food business operator.
When providing catering services, these data shall be notified to the competent public health protection authority, which shall immediately forward them to the other supervisory authorities referred to in Section 16 of the Food and Tobacco Products Act.
This change will take effect on May 12, 2021.
Obligation to indicate the composition and allergens on the shelf label
In the provision of Section 8 (1) (e) of the Food and Tobacco Products Act, it is newly stipulated that on the shelf label, according to article (b) and (c) of Regulation (EU) No 1169/2011 of the European Parliament and of the Council, in the case of food offered for sale by the self-service shop, shall state:
- a list of ingredients that the food contains:
- a list of each substance or excipient included in the list of substances causing allergies or intolerances which has been used in the production or preparation of the food and is still present in the finished product, even if in an altered form.
This change will take effect on May 12, 2021.
Producer’s labeling rules
In the new provision of Section 9 (c) of the Food and Tobacco Products Act, the rules for labeling the producer are regulated.
Under this provision, when placing the food on the market, information on its producer may be provided by the word “producer:” or by a term having the same meaning for the consumer, provided that the name is followed by the name or business name and address of the food business operator who: produced (made) the food.
If the seat of the food business operator and his establishment in which the food was produced are in different countries, the name of the country in which the establishment is located, preceded by the words: “establishment:”.
This change will take effect on October 1, 2021.
Handling of unpacked food
The Food and Tobacco Products Act Products regulates the rules for the handling of unpacked food in the provisions of Section 3 (l). This provision obliges the food business operator to shorten the date of minimum durability or use-by-date on the food packaging if it has been unpacked for sale to the consumer and to lay down the conditions for its continued storage so as not to impair the quality and safety of the food. sales of individual parts of the food during the period of their placing on the market the original packaging of the food or label, which contains mandatory information, or a legible and comprehensible copy of the packaging or label.
The amendment extends this obligation to the obligation to record the date of unpacking of the food.
This change will take effect on October 1, 2021.
Food disposal
The disposal of food is regulated in the provision of Section 3 (1) (q) of the Food and Tobacco Products Act. In the given cases, the amendment establishes the obligation, in addition to the immediate exclusion of the food from further placing on the market, also the obligation to place the food separately and attach information on their exclusion.
At the same time, the amendment expands the cases where food must be discarded. Foods that:
- contain substances contrary to the requirements for the composition of food supplements or substances prohibited in the production of food pursuant to the Decree on Food Supplements and Food Composition,
- have expired and are not safe, and
- are packed in packaging that does not protect food from deterioration.
This change will take effect on October 1, 2021.
Conditions for the use of the designation “Czech food”
The use of the designation “Czech food” is tightened by the amendment. This designation may be used only not only if 100% of all components of the total weight of unprocessed food, wine products, or milk come from the Czech Republic, and primary production, the slaughter of animals, and all stages of production took place in the Czech Republic, they must also be born and reared in the Czech Republic.
The designation “Czech food” may also be used in relation to food specified by implementing legislation, the production of which took place in the territory of the Czech Republic.
This change will take effect on May 12, 2021.
Provision of food to non-profit organizations by retail
The amendment also clarifies the mechanism for providing food to non-profit organizations through retail.
It is newly stipulated that the obligation to place these foods on the market free of charge does not apply to beverages with an alcohol content above 0.5% by volume.
At the same time, it is introduced that the promotion of a person other than a non-profit organization, a food business operator providing food free of charge, or a public benefit legal entity is prohibited in the distribution of food.
This change will take effect on May 12, 2021.
Conditions for participation in the procurement procedure for the supply of food
The new Section 37 (a) of the Food and Tobacco Products Act sets out the conditions for participation in the tender for the supply of food.
Pursuant to that provision, the contracting authority may, in a tendering procedure for the supply of food, lay down as a condition for participation in the tendering procedure the supply:
- local or regional foods from the short supply chain,
- foods complying with the certified quality schemes of Regulation (EU) No 1151/2012 of the European Parliament and of the Council on quality schemes for agricultural products and food, or
- food produced in the organic farming system.
This change will take effect on January 1, 2022.
Foods made from insects
The amendment also regulates a new group of foods that have appeared on the market. These are main products in the amendment defined as the food of animal origin, which are largely composed of insects intended for human consumption, either alone or in combination with other ingredients, as well as products obtained by processing these insects or further processing such processed products. In practice, these are, for example, protein bars, etc.
This change will take effect on May 12, 2021.
Control rules
Among other things, the amendment transposes the new European Regulation (EU) 2017/625 of the European Parliament and of the Council on official controls and other official activities.
Control points are being set up to control food business operators importing food from countries other than the Member States of the European Union. A food business operator importing food from countries other than the Member States of the European Union shall, if a directly applicable European Union regulation so provides, import food through border inspection posts designated by the Ministry of Agriculture or through inspection posts other than border inspection posts. determined in accordance with Article 53 of Regulation (EU) 2017/625 of the European Parliament and of the Council.
The amendment further stipulates the obligation of the food business operator who receives food defined by implementing legislation from another Member State of the European Union or from a third country at the place of destination to inform the supervisory authority competent pursuant to Section 16 (4) or (5) of the Food and Tobacco Products Act which, on the basis of a risk analysis pursuant to Article 3 of Regulation (EC) No 178/2002 of the European Parliament and of the Council, determines, to the extent strictly necessary for the organization of official controls, the type of food, date, scope, and method of information.
This change will take effect on May 12, 2021.
Temporary provisions
According to the transitional provisions of the amendment, food placed on the market or labeled before the date of entry into force of the amendment, which complies with the requirements of the Food and Tobacco Products Act as amended but does not comply with the requirements introduced by the amendment, may be sold until stocks are exhausted.
Food quotas
The House version of the Act, supplemented by amendments, also sought to enforce mandatory quotas concerning the amount of Czech food in Czech shops. These should mainly concern stores over 400 square meters, which would be obliged to sell at least 55% of domestic products and food. The quota was to increase over the years until 2028 when it was to reach 73%. The quotas were to cover food that could be grown in the Czech Republic, especially potatoes, cucumbers, etc.
However, the introduction of food quotas would be contrary to the principles of the single internal market, and for this reason, the Senate did not accept the proposed amendments to food quotas in the amendment, and these were not subsequently enforced in the Chamber of Deputies.
Therefore, food quotas are not introduced by the amendment.
Tobacco products and electronic cigarettes
For the sake of completeness, we state that the amendment also adopts secondary legislation relating to the traceability of tobacco products concerning measures on security features, technical standards for the implementation and operation of the tobacco traceability system, and adjustments to key elements of data retention agreements to be concluded within the system. traceability of tobacco products.
Not only the Ministry of Health but also the regional hygienic stations will be newly entitled to request additional information from the mentioned entities, especially regarding aspects of safety and quality or adverse effects of electronic cigarettes or refills in them.
Conclusion
The amendment brings several changes both within the regulation of the activities of food business operators and within the framework of increasing consumer protection or responsible procurement.
The amendment will take effect mainly on May 12, 2021, cases, where it will take effect later, are listed above for the individual changes adopted.
In case of any questions concerning the issue of the amendment to the Food and Tobacco Products Act and the current legal food regulations, we are at your disposal. So do not hesitate to contact us.
Mgr. Jakub Málek, partner – malek@plegal.cz
Kateřina Roučková, legal assistant – rouckova@plegal.cz
30. 04. 2021