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)

 

10th EFFL Conference – “COOL and Company – The Beginning of the End of the Common Market?”

I am on the move to Berlin this morning, to attend the really interesting on Country of Origin Labeling (COOL) event above mentioned. Thank you to Lexxion for inviting me.

Since the EU Commission, in 2015, decided to not impose mandatory indication of origin beside the ones today in place by horizontal legislation (e.g. Reg. (EU) 1169/2011) and by sectoral legislation (e.g. meat, honey, fish…) many Member States today are proposing national legislation’s act imposing some sort of obligation in terms of COOL: this is particularly true for the milk sector, which is sparkling much debate after France and Italian initiatives.

Which legal justifications stand behind those national drafts? Are they legitimate? If not, which legal instruments we have to fight back the fragmentation of the single market? Is the single market at risk?

Those are the questions we will try to answer and you can expect my take on the event on these pages in the near future.

On the second day of the conference, 9th December 2016, I will have a speech titled:

Drafts on National COOL Regulations
Ireland, Italy (mandatory on milk and dairy products), Portugal (mandatory on milk and dairy products), Poland (voluntary claim “Produkt polski”) Lithuania, Finland, Greece, Romania

and I will participate in a discussion panel on:

Mandatory COOL– Legitimate Consumer Information or a Step towards Protectionism?

together with:

  • Hillary ROSS, Litigation, Regulatory – DWF LLP
  • Andreas MEISTERERNST, Meisterernst Rechtsanwälte, Munich
  • Peter LOOSEN, German Federation for Food Law and Food Science e.V., Brussels

Many other excellent speakers will be there, so this could be a wonderful place to discuss such a complex topic in a 2 days immersive event.

  • Martin HOLLE, Professor of Food Law and Administrative Law, Hamburg University
    of Applied Sciences, Hamburg
  • Dirk JACOBS, Director of Consumer Information, Diet and Health, Food Drink
    Europe, Brussels
  • Paolo PATRUNO, Deputy Secretary General, Liaison Centre for the Meat Processing
    Industry in the European Union (CLITRAVI)
  • Sarah ARAYESS, Hoogenrad & Haak Advocaten, Amsterdam

Here you can see the full program.

The EFFL Conference is an established annual event organized under the auspices of the European Food and Feed Law Review. It is tailored to the needs and interests of those who are daily exposed to European food law & policy and leadership in the food law practice, and I will be very glad to participate.

If you will be there too, drop a note on foodlawlatest@gmail.com and we will discuss further in front of a cup of coffee!