Romania Suspends Unclear Food Waste Law

Today I receive and publish an interesting contribution about the recent “food waste” law recently entered into force in Romania, coming from Oana Constantinescu and Toma Barbărasă (respectively partner and attorney at law at Schoenherr si Asociatii SCA).

After France and Italy to my knowledge that is the most concrete attempt in EU to mitigate the problem by law: the path seems nonetheless paved of difficulties. Compared to the Italian legislation (already covered on this blog) a point of merit is the provision of sanctions; but the negligible amounts of the fines could foster the lack of application of the law.

It will be extremely useful to follow the developments of these bills and try to measure the impact of them in the mid-term, since doubts on their real effectiveness seems to remain.

A new law meant to fight food waste in Romania came into force in late May but is now inapplicable, as its provisions are unclear and application norms have yet to be published.

On 21 May 2017, Law 217/2016 on Food Waste Reduction entered into force (the “Law“). The Law aims to reduce food waste by imposing measures on all operators in the food industry.

The issues

In its current form, the Law has already raised concerns about its scope as well as the practical measures that operators need to take in order to comply with it.

For instance, it is not clear which entities must comply with the Law, as the Law stipulates that it applies to operators in the agri-food sector without defining who these are. This may raise more difficulties, since the Law only refers to enterprises (in terms of applicable sanctions), but does not define them.

In addition, the Law does not provide a definition for products that are close to expiry. This is important, since a clear distinction needs to be made between highly perishable products that can only stay a few days before becoming unsafe and products with a longer validity.

Another cause for concern is the lack of clear procedures, as food operators are given no guidelines or instructions on how to implement the measures in practice. Of course, each operator must assess its activity on a case-by-case basis and proceed depending on the products and its specific activity.

All of these issues are meant to be resolved through the application norms, which were supposed to be drafted by 21 May 2017, but have now been pushed back pending analysis.

In the beginning of June, the Ministry of Agriculture issued a statement saying that the legal mechanisms included in the normative act cannot be applied and that the enforcement of the law is postponed until further notice.

Outline of the measures imposed

Under the Law food operators must take the following effective measures:

  1. Accountability measures for the reduction of food waste in the entire agri-food chain, from the manufacturing stage to the marketing stage, and to the final consumer;
  2. Low-priced sale measures for products close to expiry;
  3. Transfer measures by donation or sponsorship for products close to expiry; such transfers shall be made to entities specifically registered in this respect;
  4. Measures for the direction of by-products not intended for human consumption under Regulation (EC) 1774/2002, under certain conditions, for the disposal of animal by-products;
  5. Measures for the direction of agri-food products unfit for human or animal consumption by transformation into compost;
  6. Measures for the direction of agri-food products unfit for human or animal consumption for their transformation into biogas;
  7. Measures for the direction of by-products left after going through the above stages to an authorised neutralising unit.

The Law gives food operators the opportunity to offer nearly expired products to associations, foundations and social enterprises. It also sets maximum amounts in this respect, namely 3 % + VAT of the purchase price (for food marketers) or of the production price (for food manufacturers or processors). In their turn, associations and foundations may market the offered products at maximum 25 % + VAT of the purchase price (in case they receive the products from food marketers) and at maximum 25 % + VAT of the production price (in case they receive the products from food manufacturers or processors).

Sanctions

Operators who fail to observe the above measures will face fines ranging from RON 1,000 to RON 10,000 (approx. EUR 220 to EUR 2,200). The fines depend on the size of the entity, i.e. big enterprises will face higher fines.

Conclusions

Although the Law officially came into force on 21 May 2017, its provisions are not clear enough to be applicable in practice. Moreover, the Ministry of Agriculture and Rural Development had the legal obligation to enact application norms for the Law before 21 May 2017. Although the norms were initially published on the Ministry’s website for public debate, they are now no longer available.

A serious issue that the Law may trigger is so-called parallel trade caused by the obligations imposed on operators. On the one hand, operators must donate or sell products close to expiry at a low price. On the other hand, associations and foundations that purchase these products at a low price may then market them at maximum 25 % + VAT of the purchase/production price. Since the Law sets a maximum value for the latter, there is a risk that the price may raise competition issues by becoming fixed, thus affecting operators on a free market.

Obviously the Law will have a major impact on all players in the agri-food sector. A deeper analysis of the impacts will be required before the issues (or at least some of them) can be resolved.

Oana Constantinescu and Toma Barbărasă (respectively partner and attorney at law at Schoenherr si Asociatii SCA)

 

Summer Academy in Global Food Law and Policy 2017

The Summer Academy in Global Food Law & Policy is an established one-week summer programme that brings together practitioners, policymakers, industry representatives and leading academics working in the field of food law and policy.

It offers intensive training on the most innovative developments in global food regulation and provides a unique opportunity for professional development and networking in an informal and inter-disciplinary setting.

By talking, studying and interacting with food experts from all over the world, participants are able to gain new perspectives into both their own sectors and international regulatory issues.

This is achieved by combining traditional classroom instruction with experiential learning opportunities offered by dedicated and distinguished international experts.

The Academy will take place from Monday, 17 July, to Thursday, 20 July, 2017 in Bilbao, Spain.

The choice of this vibrant city will enable participants to benefit from the world renowned Basque cuisine, its privileged geographical location between the Atlantic sea and the Rioja region, as well as its distinctive architectural landscapes (with the Guggenheim Museum, Norman Foster’s Undergroud, the towers by Arata Isozaki and César Pelli and the Calatrava’s airport).

2017’s edition keynote speaker will be Dr. Ala Alwan, the former Assistant Director General for non-communicable diseases and mental health at the World Health Organization and regional director for the WHO Eastern Mediterranean Region.

Also this year I will be there, leading a panel which will explore risks and opportunities of the application of new technologies and internet of things in the food sector.

You can apply until 31st May 2017 to the following link and here you can download the full program.

Here’s a preview:

The International Trade Regime of Food: a WTO Perspective

Erik Wijkström, Trade and Environment Division, Secretary of the WTO Committee on Technical Barriers to Trade at the World Health Organization

Food Labeling: Can Labels Reshape the World?

Melissa M. Card, J.D., Institute for Food Laws and Regulations, Michigan State University College of Law

What Role for the Law in the Prevention of Non-Communicable Diseases? Focus on the Obesity Challenge

Alberto Alemanno, Jean Monnet Professor of EU Law at HEC Paris and Global Clinical Professor of Law at NYU School of Law

Unlocking the Mindful Consumer: Where Business Performance and Public Policy Goals Meet

Francesco Tramontin, Chair of the AIM/Nudge Task Force and Director Public Affairs Mondelez International

Bridging the Gap between Behavioural Policymaking and Obesity: Unleashing the Power of Peers for Healthy Nutrition

Pelle Guldborg Hansen, University of Roskilde

Business and Human Rights: Opportunities and Challenges for a Food Company Embarking on the Social Sustainability Journey

Virginie Mahin, External Communications Manager at Mondelez Europe

Chile’s Super 8 Front-of-Package Food Labelling Law and its Interactions with the Global Health, Trade, and Investment Architecture

Paul Mertenskoetter, Institute for International Law and Justice at NYU School of Law

The Consumer Information Paradigm: A Critical, European Perspective

Caoimhin Mac Maolain, Trinity College Dublin

Taxing Food and Beverage Products: A Public Health Perspective

Jennifer Pomeranz, Assistant Professor at NYU College of Public Health

A Global Perspective through the Lenses of the Latin American Experience

Oscar Cabrera, Executive Director of the O’Neill Institute for National and Global Health Law and Visiting Professor of Law at Georgetown University Law Center

The Application of New Technologies and Internet of Things in the Food Sector: Risks and Opportunities

Cesare Varallo, Food Lawyer, foodlawtest.com founder, and Vice President at INSCATECH