Aker krill injunction appeal dismissed by German court

In dismissing Aker’s appeal against an injunction won during the show by Canadian-based krill market leader, Neptune Technologies & Bioressources, the court accepted evidence from a witness who said he had not been told on day one of the event by Aker that the company did not have novel foods status for its krill ingredient, Superba.

The court determined Aker had a duty to proactively inform potential clients of this fact.

The next day the injunction was served on Aker by court bailiffs, who removed all of its promotional materials. Aker immediately appealed the injunction, stating that it had not misrepresented its novel foods status as its official message before, during and after the show was that novel foods approval was coming “very soon”.​

That approval has subsequently arrived via an opinion from the Finnish Food and Safety Authority (EVIRA) that states Superba is substantially equivalent to Neptune’s NKO krill version.

Aker said it was disappointed by the appeal verdict but would not challenge it.

“Neptune has been very smart here,” ​Aker’s executive vice president of documentation, Dr Hogne Vik, said of the company’s bitter rival. “The ruling hinged on the fact it might have happened. But the verdict relates only to the week of FIE and that is in the past now.”​

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In a statement, Neptune president and CEO, Henri Harland said: "We will always welcome competition in the krill oil market, but only from companies that respect of our intellectual property and follow the guidelines established to protect the consumers"​

Novel foods approval​

The Aker novel foods opinion is being processed by the European Commission’s novel foods division but a spokesperson said under streamlined novel foods rules, companies can begin marketing products across the EU once a novel foods positive opinion is received by the EC from a member state authority such as EVIRA.

Neptune had disputed the right of Aker to claim EU novel foods approval on the grounds that the approval had not been written into the EU register, but the EC spokesperson said companies did not have to wait that long.

Member state objections may come in after the fact, but this part of the process had been shifted to post-market rather than pre-market as was the case before the system was streamlined.

The EVIRA approval stated in part:

“The Board notes that the production and manufacturing process of Superba oil presented by the applicant is substantially equivalent with that of the NKO oil’s. Mainly, the methods differ from each other only as regards the extraction of the oil, where Aker Biomarine uses extraction with ethanol from krill meal cooked and dried on the vessel, while NKO oil is extracted with acetone from frozen raw krill. ​

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However the difference in the manufacturing process has no substantial impact on the composition of the end product, i.e. the oil, and both methods are acceptable as regards food safety.”​

Market potential ​

Market figures show krill is one of the most exciting sub-sectors of the omega-3 category that will grow to about $1.6bn in 2014 according to Frost & Sullivan figures.

Krill sales are a small percentage of this – probably not more than $15m – but they are growing fast in a market whose volume surged from 13,000 tonnes in 2008 to more than 17,500 tonnes in 2013, according to Euromonitor.

The science suggests the tiny sea creatures that collectively form the largest animal biomass in the world, have a highly nutritious blend of omega-3s and other antioxidants that could give them true superstar status in the areas of fortified foods and supplements.