Along with this list, the draft, published August 27th, seeks to establish substances with a nutritional value or physiological effect other than plants, vitamins or minerals, which are restricted for use in food supplements.
“This will support the protection of public health and will help inform the consumer of the food's suitability for the intended purpose,” the notification stated.
“The draft regulation will facilitate the operation of enterprises involved in the handling of food as it sets clear conditions regarding the use of plants, parts of plants and other substances in food (food supplements, tea, syrup, and other products) and so will help entrepreneurs to ensure food safety.”
Unlike vitamins and minerals, botanicals and "other" substances, such as amino acids or caffeine, added to foods or food supplements are mostly regulated at the national level and not within the EU.
Member States have so far failed to agree a common approach and consequently, a number of countries within the EU have taken matters into their own hands.
For example, the Belfrit countries, Belgium, France and Italy, have sought a positive list of plants that can be used, excluding all other plants. However, this initiative has not been adopted by other countries.
Other countries have only listed plants that cannot be used, or tried to clarify plants that can be used in both medicines and food supplements.
“Latvia has proceeded with this latest regulation in order to protect consumers, ensure food safety, and to give legal certainty to food businesses, as claimed in the notification letter to the EU,” explained Luca Bucchini, managing director of Hylobates Consulting, a firm specialising in risk analysis and regulatory consulting in the food sector.
“Technical rules such as these have to be notified to the Commission before implementation.”
More confusion amongst firms and consumers
Unless there is action at the EU level, Bucchini believed there would be more of these lists which, while in part necessary, will create more confusion to consumers and to businesses.
“Food businesses have probably clamoured for clarity,” added Bucchini. “Authorities have responded to action in other countries, while the European Commission has not taken action yet.”
“The text, in its complexity, seems to bring trace of a difficult decision-making process.”
Stefania Condello, legal officer for the European Commission added that the notification of the draft technical regulation under Directive (EU) 2015/1535 has triggered a three-month standstill period.
Here the notified draft technical regulation cannot be adopted by the Member State concerned.
“Regarding notification 2018/421/LV (the draft regulation’s notification number) the standstill period expires on 28/11/2018,” he explained.
“The standstill period is extended by three additional months if the Commission or other Member States issue a detailed opinion.”