Food law - horak Attorneys at law, Germany
What does the Act on Foodstuffs and Goods in Daily Use comprise?
Food is defined by Article 2 of Regulation (EC) No 178/2002. Medicinal products are excluded. The German Food and Feed Code (LFGB) replaced the former LMBG and covers the product groups listed in section 2(1), including food, feed, tattooing products, cosmetics and specified consumer goods.
Food additives are governed principally by Regulation (EC) No 1333/2008. The definition, authorised food categories, conditions of use and maximum levels must be checked. Flavourings fall under Regulation (EC) No 1334/2008; processing aids, enzymes and nutritional substances require separate classification.
Tobacco and related products are subject to their own framework, including the German Tobacco Products Act (TabakerzG). They should not be treated as an LFGB product category merely because they appeared in the former LMBG.
Cosmetics are defined by Article 2(1)(a) of Regulation (EC) No 1223/2009. Product classification depends on the intended application sites, purpose, composition and presentation.
Consumer goods within section 2(6) LFGB include food-contact materials and other specified categories such as certain cosmetic packaging, body-care articles, toys and clothing. The statutory exceptions must be checked; the category is not limited to food-contact goods.
What role does the Medical Preparations Act or the Law on the Advertising of Medicaments play?
As far as communication (advertising, packaging, etc.) is concerned, articles of food, especially dietary supplements are often advertised “in a boundary area”, namely by means of statements which could rather be attributed to medical preparations. The latter would, however, significantly reduce the marketability, and can, moreover, lead to the application of the Law on the Advertising of Medicaments.
Food classification follows Regulation (EC) No 178/2002 and the applicable German legislation. Food supplements under section 1 NemV supplement the normal diet with concentrated nutrients or other substances having a nutritional or physiological effect, supplied in dose form. Proof of a dietary deficiency is not a general prerequisite. The distinction from medicinal products and compliance with composition, labelling and advertising rules must be assessed separately.
What is directly prohibited under the Act on Foodstuffs and Goods in Daily Use?
Article 14 of Regulation (EC) No 178/2002 prohibits placing unsafe food on the market. Section 5 LFGB provides additional health-protection rules. Food-contact materials and non-food products resembling food are also subject to the relevant product-specific safety rules. Former section 8 LMBG is not the current legal basis.
What should be taken into consideration as far as advertising or the product packaging are concerned?
Article 7 of the Food Information Regulation (EU) No 1169/2011 and section 11 LFGB prohibit misleading food information. Claims such as “natural” or “residue-free” require assessment of their meaning and any specific product rules. Nutrition and health claims must also comply with Regulation (EC) No 1924/2006 and the applicable authorisations and conditions.
Article 7(3) of Regulation (EU) No 1169/2011 generally prohibits attributing disease-prevention, treatment or cure properties to food, subject to specific statutory exceptions. Authorised disease-risk-reduction claims under Article 14 of Regulation (EC) No 1924/2006 are a distinct category. Former section 18 LMBG is no longer the applicable provision.
The following passage reproduces the page’s historical translation of former section 18 LMBG. It is retained solely as an archive of the previous content, is not current law and must not be used for present-day compliance decisions. The current EU and LFGB rules are outlined above.
Historical statutory excerpt – not current law
(1) “Notwithstanding the regulation of § 17 (1) Nr. 5, in transactions involving articles of food or in advertising of articles of food, it is generally or in a particular case forbidden to use
- statements which refer to prevention, alleviation or elimination of illnesses,
- references to doctors’ recommendations or medical opinions,
- medical records or references to such,
- statements of third parties, especially addresses of thanks, letters of acknowledgement or letters of recommendation, if they refer to elimination or alleviation of illnesses, as well as references to them,
- illustrations of persons in working clothes or of members of medicals profession, therapeutic vocation or pharmacology at work,
- statements which are suited to cause or take advantage of fear,
- publications or written data which encourage treatment of illnesses by means of articles of food.
(2) The prohibitions listed under Paragraph 1 do not apply to practitioners of medical, auxiliary medical or therapeutic professions. The prohibitions under Paragraph 1 Nr. 1 and 7 do not apply to dietetic articles of food, as long as the Federal Ministry by means of an executive order with consent of the Federal Council provides otherwise.”
When assessing current advertising, use the applicable EU legislation, current LFGB provisions, relevant authorisations and current case law. Decisions under former legislation need to be checked for continuing relevance.
What do we offer you?
We check the marketability of your new foodstuffs and their ingredients, as well as the delimitation from medical preparations which is particularly important. Of course, we also advise you on the matter of the admissibility of a packaging under the law on competition. Moreover, we assist you in your official proceedings relating to the foodstuffs law. We offer our services for all branches, typically including:
- advice and assistance relating to food supplements
- examination of the packaging (especially texts/pictures)
- advice on foodstuffs and medicine advertising
- advice, protection and defence of geographical indications of origin and trademarks
- advice and representation when applying for a permit
- representation and trial conduct at the enforcement of claims or at the defence against claims under foodstuffs/medical preparations law.
At your wish, we offer you assistance from designated experts on matters relating to microbiology, medical preparations or food chemistry.
What do we need to handle your legal questions relating to foodstuffs/medical preparations?
We normally need precise product information, including its composition, intended distribution channels and, depending on the question, packaging and other relevant documents. The required scope is agreed for the individual matter.
