Spicing up EU-Indonesia food trade relations – The EU adopts emergency measures for Indonesian nutmeg

Today we have a most welcome return on our blog: Francesco Montanari, food lawyer in Lisbon and senior associate at Arcadia International, examining the EU emergency measures imposed on Indonesian nutmeg import.

Early this January, the European Union (EU) has decided to step up the conditions for importing Indonesian nutmeg into its market. Nutmeg is a high-value dried spice that derives from trees of the genus Myristica, plants that typically grow in a few Asian countries. Nutmeg has been widely used in European cuisine since the Middle Age for various purposes. According to some sources, its value increased exponentially during the 16h century, when belief had it that it could help preventing the plague. Currently, nutmeg sourced from Indonesia accounts for nearly 80% of all EU imports of that product, with Netherlands, Germany and Italy being the three top importers.

Indonesian nutmeg has been already under EU surveillance for some time mainly because of aflatoxins contamination. Indeed, it has been subject to reinforced checks at EU borders in the context of Regulation (EC) No 669/2009 since July 2012. A relatively high number of notifications (20) reported by EU Member States’ control authorities through the Rapid Alert System for Feed and Food (RASFF) over the period 2009-2012, in addition to some shortcomings emerging from an audit performed by the Food and Veterinary Office of the European Commission had justified an increase in border surveillance back then.

Over three years later, non-compliance levels reported in relation to Indonesian nutmeg do not seem to have substantially improved. A quick search in the RASFF database, in fact, shows that the number of RASFF notifications concerning this product have not decreased over the last three years, accounting for 23 border rejections.

It is against this background that the European Commission has recently decided to stiffen the import requirements applying to nutmeg with Indonesian origin.

The Commission has done so by adopting Regulation (EU) No 2016/24 whose provisions amend and supplement, among others, Annex I to Regulation (EU) No 884/2014, an EU emergency measure setting special import conditions for a number of imports presenting a high risk of aflatoxin contamination.

Applicable as of 2 February 2016, the new import requirements applicable to nutmeg from Indonesia imply that, in addition to the obligation of pre-notify the arrival of their consignments, the concerned business operators will have to provide the control authorities at EU borders also with:

  • a valid health certificate verified, signed and stamped by an authorised representative of the Indonesian Ministry of Agriculture for food, attesting that the consignment in question has been subject to sampling and analysis in conformity with EU legislation; and
  • an analytical report detailing the results of the tests performed in the country of origin in compliance with the maximum levels set by Regulation (EC) No 1181/2006.

At their arrival in the EU, consignments will still be subject to 100% documentary checks by national control authorities and to a lower frequency (20%) in case of identity and physical checks. Business operators sourcing nutmeg from Indonesia should be aware that, under the import regime set by Regulation (EU) No 884/2014, identity and physical checks may be not always performed at EU borders, but, based on the choice made by each Member State, be carried out at designated premises located either at an external borders or in-land.

Whilst the introduction of stricter import requirements for Indonesian nutmeg may be justified in the light of the overall unsatisfactory compliance level observed over time, the impact that the newly introduced measures will have on the bilateral trade relations between the EU and the Asian country remains to be seen.

In fact, over the last few years, the EU has been particularly active in voicing its concerns over the compatibility of certain sanitary and phytosanitary requirements set by Indonesia with the applicable international trade rules (e.g. BSE, avian flu and import requirements for plants and plant products), although with limited success. This considered, the import conditions that the EU recently adopted for Indonesian nutmeg risk being an additional political irritant in the context of the already tense trade talks between Brussels and Jakarta.

EU to ease import conditions for sunflower oil from Ukraine

“Today I publish another article of my friend and food lawyer in Lisbon, Francesco Montanari, written in cooperation with his colleague Veronika Jèzso; thank you both for this and for your great expertise on food import requirements”.

Early in July this year the European Commission in agreement with Member States decided to relax special imports conditions currently applicable to sunflower oil originating from Ukraine.  Import conditions are currently set out in Regulation (EC) No 1151/2009. By adopting Regulation (EU) No 853/2014, the Commission has formally repealed the existing emergency measures with effect as of 26 August 2014.

According to the Commission, the decision of easing the level of import surveillance on sunflower oil from Ukraine is justified by the absence of notifications reported through the Rapid Alert System for Feed and Food (RASFF) over the past few years. This decision is, however, also politically motivated in that it aims at reducing pressure on the trade and the economy of a country that is experiencing considerable turmoil and instability.

With special import conditions poised to be lifted, sunflower oil from Ukraine will be subjected to the general EU import regime for food of non-animal origin as designed by Article 15 (1) Regulation (EC) No 882/2004.  This means that national enforcement authorities will still be able to target consignments of Ukrainian sunflower oil in the context of routine checks at EU borders or in the market.

The following paragraphs provides a brief account of a) the events that led to the adoption of EU emergency measures concerning the imports in question as well as of b) the import procedures that had to be followed till recently.

a) Contamination of sunflower oil with mineral oil

Paraffin oils are petroleum products used in a variety of industry sectors ranging from food production to pharmaceuticals, cosmetics and engineering. Liquid paraffin, also known as ‘mineral oil’, is an odourless and colourless substance of relatively low value  mainly used for preventing water absorption. Paraffin oil is harmful if swallowed or inhaled.

Back in April 2008, the European Commission was notified information through the RASFF of a case of sunflower oil from Ukraine presenting high levels of mineral oil. Consulted on the potential risks ensuing from the contamination, the European Food Safety Authority (EFSA) pointed out that, taking into account human exposure estimates and the fact that the analysis detected a mineral oil of a high viscosity type, exposure levels, although undesirable, did not constitute a health concern.  Nevertheless, given that the source of contamination could not be identified with certainty, competent authorities in Member States ordered the withdrawal from the market of contaminated sunflower oil and other food containing it.

At EU level, the European Commission introduced interim protection measures through Decision 2008/388/EC, in order to ensure that no exports of sunflower oil reached the EU without being adequately certified and controlled.  Decision 2008/433/EC later confirmed the interim protection measures.

The Food Veterinary Office (FVO) conducted an audit in September 2008, in order to assess the official control system in place in Ukraine. The FVO team found that the Ukrainian authorities had undertaken adequate measures to prevent the contamination of sunflower oil destined to EU import. Yet, investigations carried out by the Ukrainian authorities could not reveal the source of the contamination, mainly because of lack of official sampling and subsequent follow-up. In order to ensure performance of sampling in accordance with the relevant EU provisions (i.e. Regulation (EC) No 333/2007), Regulation 1151/2009 was eventually adopted.

b) Import procedures under Regulation 1151/2009

Applicable as of January 2010, Regulation 1151/2009 applies to crude and refined sunflower seed oil originating or consigned from Ukraine (Article 1). Sunflower oil for EU import must not contain more than 50 mg/kg mineral paraffin (Article 3).

Each consignment of sunflower oil destined for EU import must be accompanied by:

a) a health certificate attesting that the product does not contain more than 50 mg/kg mineral paraffin, and

b) an analytical report, which, issued by an accredited laboratory, indicates the results of sampling and analysis for the presence of mineral oil, the measurement uncertainty of the analytical result, as well as the limits of detection and quantification of the analytical method.

Both documents must be duly signed by an authorised representative of the Ministry of Health of Ukraine.

Furthermore, business operators must give prior notification to the first point of entry in the EU, specifying estimated date and time of arrival of the consignment (Article 3).

In terms of control activities, competent authorities in Member States must check that all incoming consignments intended for import are accompanied by the required documents. In order to ensure that relevant products do not contain unacceptable levels of mineral paraffin, national enforcement authorities are as well required to carry out physical inspections, including sampling and analysis, on a random basis (Article 4).