EU maintains ban on betel leaves from Bangladesh – Update 5.08.14

“Thanks again to my friend Francesco Montanari, Food Law consultant in Lisbon, for this interesting guest article on import/export issues in EU. As you have surely  noticed, he is a usual presence on the blog and his articles are always really appreciated.”

Only a few months ago, on this blog I pointed out to the inexplicable lack of action by the EU on imports of betel leaves from Bangladesh.  This issue is a long-standing one and emerged for the first time in 2011, as a result of several RASFF notifications signalling rejections at EU borders of these imports for contamination with different strains of Salmonella and E.Coli.

Betel leaves (also known as ‘paan leaves’) are a traditional product that certain South-eastern Asian populations chew after meals as a mild stimulant and breath-freshener.  They are generally exported to European countries where communities of Asian emigrants reside, including UK, Germany and, to a lesser extent, Italy. Despite being a niche product, in 2012 exports of betel leaves only from Bangladesh accounted for over € 40 million.

a)      Some background

Since 2011, EU Member States have notified through the RASFF over 140 cases of microbiological contamination in betel leaves from Bangladesh. Despite the considerably high number of positive findings would have reasonably called for an immediate ban on the relevant trade as soon as this issue emerged, in 2012 the European Commission opted instead for giving an opportunity to the competent authorities of that country so that the safety concerns associated with their exports could be addressed.

From their side, the Bangladeshi authorities took on that opportunity and, whilst suspending all exports of those products in November 2012, established an action plan to ensure a pathogen-free production chain.

In February 2013, the Food and Veterinary Office (FVO) of the European Commission visited this country for auditing the national controls system for plants and plant products intended for export. As regards betel leaves, FVO inspectors found that the action plan developed by Bangladeshi authorities was not yet fully implemented and that the export surveillance system for fruits and vegetables presented significant deficiencies (in particular, the lack of appropriate facilities and equipment for performing official controls prior to exports).

Despite a national ban on exports being in place, consignments containing betel leaves from Bangladesh were still arriving at EU borders and often reported as non-compliant.

b)      Commission Decision 2014/88/EU

Last week (13 February 2014) the Commission eventually decided to adopt an import ban on betel leaves originating or consigned by Bangladesh. Based on Article 53 of Regulation (EC) No 178/2002 (otherwise known as ‘General Food Law’), Decision 2014/88/EU requires, in fact, EU Member States not to allow importation of consignments containing that food (Article 2). The ban applies temporarily until 31 July 2014 (Article 4), however is likely to be reviewed in light of the assurances that Bangladesh may provide in the meantime.

Whilst the Decision specifies that consignments to be controlled include those bearing CN Code 1404 90 00, it seems to imply that Member States’ control staff should be vigilant with betel leaves being fraudulently presented under other CN codes (Article 1). The Decision then sets out that the operator responsible for the consignment must bear all the costs occasioned by the implementation of the Decision (presumably, costs of disposal given the perishable nature of the product in question).

c)       Betel leaves from other exporting countries

Interestingly, the Commission is currently considering additional measures on imports of betel leaves from countries other than Bangladesh. Indeed, Member States have recently reported several RASFF notifications regarding those products, mainly in provenance from India and Thailand. As a result, these imports may soon end up in the list of products that are subject to reinforced border checks under Regulation (EC) No 669/2009. The tightening of control requirements on imports of betel leaves from these other Asian countries should contribute to minimise opportunities for trade triangulation to get around EU import restrictions.

d)      Some final considerations

If there are no doubts about the need to halt trade of betel leaves from Bangladesh for systematic failure to meet EU safety microbiological standards, it remains to be seen to what extent the Commission has made correct use of the legal provision on which Decision 2014/88/EU is based on.

Effectively, the purpose of Article 53 GFL is to require, amongst the others, the Commission to adopt ‘emergency measures’, without delay, whenever it is evident that an import presents a serious risk for public health.

Considering the number of RASFF rejections in 2011 and 2012 and the severity of the findings there reported, it would be difficult to argue that the seriousness of the risk was not apparent already at that stage. Notwithstanding this trade was let to flow, thereby leaving the emerging risk unaddressed and putting the burden to ensure consumer safety on the shoulders of the control authorities in Member States. Then, after two years of silence, of all the risk-management measures available, the EU adopts the most restrictive amongst the trade measures available (i.e. suspension of imports), thus leaving no doubt about the seriousness of the health risk involved.

What precedes points quite clearly to that, at least this time the Commission has failed to react to an emerging risk in a prompt and adequate way as an organisation responsible for risk management would be reasonably expected to do.

e) UPDATE 5-08-14

End of July the European Commission has decided to extend the EU-wide ban on paan leaves from Bangladesh introduced by Decision 2014/88/EU until the end of June 2015. This decision came after a dozen of RASFF notifications revealing attempts of introducing consignments of such products illegally into the EU territory and, overall, ineffective export surveillance by the competent authorities of Bangladesh (a self-ban has been in place since  May 2013).

Here’s the new Decision 2014/510/EU: 
http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32014D0510&from=IT

Since 1 April 2014 paan leaves from India and Thailand are subject to reinforced controls at EU borders for salmonella risk pursuant Annex I to Regulation (EC) No 669/2009. EU border controls have triggered so far several RASFF notifications for Indian products (10), whereas only one was reported concerning Thai paan leaves.