- 01/02/2019
- Posted by: Marta
- Categories: Questions and Answers, News
Dear Lawyer,
I started the import of one snack for dogs, a 200g cowhide bone packed in a clear plastic bag. Inside the bag there is also an aluminum-colored bag that contains iron oxide, a humidity regulator with anti-mold function. On the aluminized sachet it is specified "Remove before use. Do not swallow".
The authorities though they refused to clear the product and forced me to re-label the clear plastic bags, writing “remove the deoxidizer sachet before use”. It was useless to show the certificates attesting the nature of the iron oxide, completely devoid of any toxicity.
The official it justified its prescription with the “precautionary principle” and also proposed the application of the rules on MOCAs. I ask you to provide me with an explanation on the matter, thanking you in advance for your feedback.
(signed letter)
The lawyer Dario Dongo, Ph.D. in European food law, answers
The measure adopted from the supervisory authority, on the basis of the information received, appears to have no legal basis. For two essential reasons:
1) iron oxide it is a notoriously harmless substance. The use of the reddish powder of the famous mineral is even allowed in both the food and feed sectors:
- in food, the additive E1 is commonly used with a coloring function (and thus authorized by EU regulation 1129/11),
- in feed, this substance is in turn allowed (pursuant to Directive 70/524 / EC),
2) labeling of the feed, within which also the petfood fits in, has no specific rules applicable to the case,
3) the precautionary principle can justify the adoption of prudential measures (prescriptive or inhibitory), on a transitional basis, under two conditions:
- existence or well-founded fear (based on concrete evidence) of a risk situation,
- scientific uncertainty or 'vacuum legislation'.
In the present case, however, none of the above conditions are met. (1)
It would be quite different the case in which the manufacturer had decided to use silicon gel or potentially dangerous chemical mixtures as a humidity regulator. (2) In this case, the authority could legitimately have prescribed a special 'warning'on the outer packaging of the package. For the express purpose of warning the consumer in advance of the potential danger to the health of the animal, in the event of its contact with these substances following the breaking of the bag that contains them.
The dreaded application finally, of the MOCA legislation leads to reflect on the good faith of the official. Given that this legislation, as the acronym itself indicates, refers to Materials and Objects intended for Contact with Food. (3) And it is useful to highlight how the public official, in disapplying the rules and causing unjust damage (including unjustified re-labeling burdens), to you or to others, exposes himself to a very serious responsibility.
'Unless the fact constitutes a more serious offense, the public official or the person in charge of a public service who, in carrying out his duties or service, in violation of laws or regulations (...) intentionally (...) causes to others unjust damage is punished with imprisonment from one to four years.
The penalty is increased in cases where the advantage or damage is of significant gravity '. (4)
Dario Dongo
Note
(1) For further information on the subject, please refer to the free ebook 'Food safety, mandatory rules and voluntary standards', up https://www.greatitalianfoodtrade.it/sicurezza-alimentare-regole-cogenti-norme-volontarie-libro-dario-dongo/
(2) The European standards of essential reference for dangerous chemicals are:
- reg. CE 1272/08, 'relating to classification, labeling and packaging of substances and mixturesto
- reg. EU 649/12, 'on the export and import of dangerous chemicals'.
Furthermore, food and feed, their ingredients and additives are excluded from the scope of both regulations
(3) See reg. CE 1935/05 and subsequent amendments
(4) Cf. Criminal Code, Article 323 (Office abuse)
