The Welsh Abertillery Magistrates Court said two Asphalia-branded products had been formulated with the unauthorised form of rye grass called Festuca arundinacea since 2003, and made the company pay €9250 in fines and costs. Torfaen County Borough Council was denied €12,600 in unawarded costs.
Asphalia managing director, Roger Coghill, said his company may appeal the decision but not until it finished an investigation into the ingredient’s novel foods status changing from ‘uncertain’ shortly before the court action was mounted by a Welsh local authority in January this year.
It has lodged a Freedom of Information request for documents passing between the UK Food Standards Agency (FSA) and the European Commission at the time the ingredient’s status was changed, in the belief they will reveal that evidence demonstrating a safe history of use was not considered in the novel foods status update.
The FSA said those documents would be with Asphalia on Monday.
“We want to know more about these transactions and then we will determine our course of action,” Coghill told NutraIngredients.com.
The Welsh court heard allegations that FSA official, Dr Chris Jones, abused his position in influencing the status to be changed, but said the allegations were immaterial to the case at hand.
“The allegation was examined by the court but found there was no abuse of process,” an FSA spokesperson said. “The change to the entry for Festuca arundinacea was overdue as the consensus on its status was first reached in September 2005."
Novel foods regulations
European Union novel foods regulations state foods and ingredients must gain novel foods approval if they cannot demonstrate a history of use within the 27-member state community before May, 1997.
Asphalia said letters from companies that had traded in Festuca arundinacea before 1997 had been sent to the court but were deemed to have been received too late to be admissible. These letters were also sent to the FSA.
Asphalia would like to see the ingredient classified as having a safe history of use because it says a novel foods application can take years and cost upwards of €300,000. It is for these reasons it had not applied for novel foods approval and why it lost the case once the court deemed there was no impropriety in the ingredients status being changed.
The action was brought by Torfaen County Borough Council in Wales which continued to pursue the company, Coghill said, for failing to list all ingredients on its reformulated products that used wheat and barley grass instead of rye grass.
Asphalia had reformulated its products in January, when the action was announced, and issued a recall on August 6, the day after the court verdict was delivered.
Coghill said there had not been a single adverse event reported to it since it launched the products in 2003 and noted that the ingredient had been used safely and legally by major manufacturers both in Europe and other parts of the world.
The Alliance for Natural Health said there had been “no winners” in the case.
“The Local Council has lost £10,000 of their unawarded costs and many man hours, and consumers who choose natural over new-to-nature pharmaceutical drugs have once again felt the thin edge of the wedge,” it stated.