The Czech Government draft law amending Czech Act No. 110/1997 Coll., on food and tobacco products and amending certain related acts, as amended (hereinafter referred to as the “amendment” and “act”), was discussed in December during the first reading in the Czech Chamber of Deputies. In addition to the transposition of 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 on adapting the highly discussed issue of dual food quality.
In general
The amendment’s draft was submitted to the Chamber of Deputies in the first half of the year 2019. The Government´s work in this particular matter was primarily a response to the approval of the modification of the Unfair Commercial Practices Directive at European Union level on which adoption and content we already informed you in our article.
The Czech amendment does not only deal with the “hard prohibition” of dual food quality, as it might seem at first glance. It also brings the new type of food control legislation regarding the food that is composed of insects, complements the insufficient provisions in the act, concerning in particular the reporting obligation of the food business operator, nor does it forget on the consistency of legislation and application practice regarding electronic cigarettes and their refills, or the determination of the territorial scope in controlling distance selling.
The first reading of the amendment at the Chamber of Deputies, which, unlike the European variant, contains prohibition of dual food quality, took place on 6 December 2019.
Food made from insects
The amendment inter alia regulates a new group of foods that has appeared on the market. These are, in particular, products defined in the amendment as food of animal origin which are largely made up of insects intended for human consumption, either alone or in combination with other ingredients, as well as products obtained by processing such insects or by further processing of such processed products. In practice, these are for example protein bars, etc.
Obligations of food business operators
The amendment also entails new obligations for the food business operator, including, in particular, the obligation to notify to the competent supervisory authority in relation to the commencement, modification or termination of the business activity no later than the day on which these events occurred, and state it in the notification and update it on the date of the changes.
The notification to the supervisory authority shall be made in writing or electronically and shall include:
- identification of the business operator and the establishment, including registered office and address;
- the identification number;
- scope of business or activity; and
- the specific activities which as a food business operator operates.
Another duty, no less important, is the need to record the date of unpacking the food. The operator must immediately discard and place separately and attach the discard information to those foods that have passed the minimum expiry date and are not safe or foods that are stored in packaging that does not protect them from deterioration.
Food business operator importing food from states other than the Member States of the European Union shall, if so provided by a directly applicable European Union regulation, import food through border inspection posts[1] designated by the Ministry of Agriculture or through control points other than border inspection posts designated pursuant to Article 53 of Regulation (EU) 2017/625 of the European Parliament and of the Council.
The amendment further imposes on the food business operator who at the place of destination receives the food as defined in the implementing legislation from another Member State of the European Union or from a third country, an obligation to inform the supervisory authority competent under Section 16 paragraph 4 or 5 of the act on their arrival pursuant to an implementing legal regulation which on the basis of a risk analysis in accordance with Article 3 of Regulation (EC) No. 178/2002 of the European Parliament and of the Council, to the extent necessary for the organization of official controls, shall specify the type of food, the deadline, the scope and the method of informing.
Dual food quality
As already mentioned, the biggest topic, thanks to which the amendment will receive more media coverage, is in particular the fact that it deals with the legal regulation of dual quality of food, which is a topic interesting not only for professionals but also for the general public.
The amendment follows on the European Union’s Unfair Commercial Practices Directive, which was not widely accepted by the general public, as its wording does not contain a prohibition on dual food quality.
The amendment regulates the aforementioned matter in the new provision of Section 10 paragraph f) and g), which provide that “It is forbidden to market the foods:
- containing substances contrary to the requirements for the composition of food supplements or substances prohibited in the manufacture of food pursuant to the regulation on food supplements and food composition; and
- labeled seemingly identically to a food marketed in another Member State of the European Union, although the food marketed in the Czech Republic has different composition or characteristics.”
In this case, it is possible to speak of the so-called “hard prohibition” of dual quality of food, which would exclude the sale of dual quality products in Czech shops after their entry into force.
It is likely that the amendment will undergo some changes during the legislative process. The wording of the section 10 letter g) might be an example, when it is currently in the effort to incorporate the phrase “substantially different composition” into the proposed text (or to be inspired by the text of the Consumer Protection Act, which also regulates the question of dual quality). A clear specification and definition of this term is important for future assessment and is intended to avoid, for example, unnecessary problems in relation to reformulations. In relation to the dual quality of food, the Chamber of Deputies will also address the issue of who will be subject to sanctions (whether manufacturers or sellers) when it is found that foods that have appeared in shops have provably different composition than they would have abroad. The delimitation of the subject responsible for the damage is a matter of further discussion
Tobacco products and electronic cigarettes
The amendment should adopt secondary legislation related to the traceability of tobacco products concerning measures on safety features, technical standards for the implementation and operation of the tobacco products traceability system and the modification of key elements of data retention contracts to be concluded under the tobacco products traceability system.
The manufacturer, importer, retailer and distributor of tobacco products shall (i) apply to the State Securities Printer in such cases to assignment of a unique identifier, a unique identifier at the level of the group packaging and the economic operator, plant and machine identification code; and (ii) ensure that unit packs of cigarettes and tobacco intended for the rolling of cigarettes are marked with a unique identifier issued by the State Securities Printer in the manner prescribed by the implementing legislation. Upon request of the Czech Agriculture and Food Inspection Authority, are the above mentioned obliged to provide samples of tobacco products that are placed on the market. The samples shall be provided in unit packet format and shall contain the used security element.
Also, the electronic cigarettes and refills for them have their place in the proposed amendment. Newly, their manufacturer, importer, retailer or distributor should include legal requirements not only on the unit packet but also on the outer packaging. The net fill quantity may also be given in milliliters.
Not only the Ministry of Health, but also regional hygiene stations should newly be authorized to request additional information from mentioned entities, in particular regarding safety and quality aspects or the adverse effects of electronic cigarettes or refills.
Conclusion
It is already clear that the legislative process regarding the amendment of the Czech Act on Foodstuffs will be closely monitored due to the publicized topic of dual quality of food, which could bring its more thorough discussion.
Currently, the amendment is still relatively early in the process and it is not possible to establish unambiguously how the final version will be developed with regard to possible amendments. However, it is certain that the process of adopting the changes will not be easy taking into account the comments of the various concerned subjects, so we will continue to monitor it and further inform you of substantial changes.
If you have any questions about the amendment to the Czech Act on Foodstuffs or food-processing law in general, we are at your disposal – do not hesitate to contact us.
Mgr. Bc. Štěpánka Vajdová, junior lawyer – vajdova@plegal.cz
Mgr. Jakub Málek, partner – malek@plegal.cz
Eliška Vetýšková, legal assistant – vetyskova@plegal.cz
20. 12. 2019
[1] Article 3 paragraph 38 of the Regulation (EU) 2017/625 of the European Parliament and of the Council.