Food and animal safety in Germany (Bird & Bird LLP)

Wolfgang Ernst –   Nicolas Carbonnelle - Christian Lindenthal

wolfgang.ernst@twobirds.com - nicolas.carbonnelle@twobirds.com - christian.lindenthal@twobirds.com

Food safety, certification programmes, animal safety and disease

Livestock legislation

List the main applicable enacted legislation for primary processors of live animals.

Some of the legal instruments listed in our response on the regulatory environment for meat and poultry, and on all other human food, including Regulation (EC) No 178/2002, Regulation (EC) No 852/2004, Directive 2002/99/EC, Regulation (EC) No 853/2004 and Regulation (EC) 882/2004 are relevant, as they form the legal background to primary processor's activities. In addition to these general rules, Directive 98/58/EC concerning the protection of animals kept for farming purposes lays down the minimum standards for the protection of all farmed animals. In addition to this framework, specific directives define requirements for the protection of individual animals, for example, the welfare of pigs is assured by Directive 2008/120/EC while Directive 2007/43/CE lays down minimum rules for the protection of chickens kept for meat production.

Furthermore, processors of live animals are subject to Regulation (EC) No. 1/2005 on the protection of animals during transport and related operations and Regulation (EC) No. 1099/2009 on the protection of animals at the time of killing.

As far as it regards national rules, companies in Germany need to obey the following additional regulations:

• Poultry: the Animal Protection and Animal Farming Regulation (TierSchNutztV), 2009/158/EWG, the Livestock Breeding Act (TierZG), Semen Regulation (SamenV), the Regulation on Breeding Organisations (VO über Zuchtorganisationen), Implementing Regulation (EU) 2017/17, the Animal Protection Act (TierSchG) and Regulation EC No. 589/2008.
• Ruminants: TierGesG, the Livestock Traffic Regulation (ViehVerkV), the Regulation on Protection against Swine Fever and African Swine Fever and the Pig Farming Hygiene Regulation (SchHaltHygV).
• Pork: TierSchNutztV, TierZG, SamenV, VO über Zuchtorganisationen, Implementing Regulation (EC) 2017/17, TierSchG, Regulation EC No. 589/2008, the Regulation on the Performance Inspections and the Determination of the Genetic Value of Pigs.

Food safety regime

Describe food safety regulations for meat and poultry products, and all other food products in your jurisdiction.

The food safety regulations are mainly based on Regulations (EC) No. 178/2002, 852/2004 and 853/2004 and their implementing measures.

We refer to our response on the regulatory environment for meat and poultry, and on all other human food,and note that Regulation (EC) No 178/2002 essentially prohibits the placing on the market of foods that are injurious health or otherwise unfit for consumption. On this basis, it establishes several rules covering all stages of food and feed production and distribution. These obligations must be followed by all businesses intervening at any stage of the food chain; they concern the traceability of food, feed and food-producing animals. The Regulation also prescribes an obligation to withdraw food or feed from the market, or recall products already supplied, if these are considered to be harmful to health.

Safety enforcement

What enforcement can take place in relation to food safety? What penalties may apply?

Serious violations are liable to criminal prosecution, which may result in the criminal liability of both legal persons and natural persons, the latter including the possibility of arrest and jail.

In practice, however, the most common method of enforcement in food supply chain safety is through administrative procedures. These procedures are handled by the Federal Agency for the Safety of the Food Chain (FASFC). The measures that FASFC can take include the seizure of goods and suspension or revocation of authorisations granted to an undertaking active in the agricultural sector (see, in particular, section 138 regulation (EU) 2017/625 on official controls and other official activities performed to ensure the application of food and feed law, rules on animal health and welfare, plant health and plant protection products and sections 7, 16-17 on General administrative provision on principles for carrying out official controls on compliance with food law, animal by-products law, wine law, feed law and tobacco law).

Product certification

Describe any certification programmes and regulations for genetically modified foods and organic foods.

Genetically modified (GM) foods have been subject to a specific regulatory framework since 2004. The EU framework now consists of several regulations of the Council and the European Parliament, regulations of the Commission and directives. Before GM foods may be placed on the market, these foods need to be approved based on a double safety assessment. First, they need an authorisation for the deliberate release into the environment according to the criteria laid down in Directive 2001/18, and second an authorisation for use in food or feed, or both, according to the criteria laid down in Regulation 1829/2003.

Each application for the introduction of a new GM food to the market is reviewed on a case-by-case basis, including a detailed consideration of the potential for toxic, nutritional and allergenic effects, by the European Food Safety Authority. Currently, a number of GM varieties are allowed in the EU for the following crops: maize, soybean, rapeseed, cotton, sugar beet and potato. To date, no genetically modified animals are allowed in the European Union. Of note, to date only two commercial genetically modified organisms (GMO) crops have been authorised for commercial cultivation in the EU, namely MON 810 maize and the potato ‘Amflora’. A number of member states has prohibited the cultivation of MON 810. As regards Germany, no genetically modified plants have been commercially cultivated since 2012. (Bundesregierung.de).

In relation to GM foods, it is relevant to note that in its 25 July 2018 decision the Court of Justice of the European Union held that all organisms subject to genome-editing techniques, including the use of Clustered Regularly Interspaced Short Palindromic Repeats (CRISPR) and other techniques or methods of mutagenesis, fall within the definition of GMOs. This thus expands the application of Directive 2001/18/EC of the European Parliament and of the Council of 12 March 2001 on the deliberate release into the environment of GMOs.

Organic products are notably subject to compliance with the requirements defined under Regulation (EC) No. 834/2007 on organic production and labelling of organic products (which will be replaced, as of 1 January 2021, by Regulation (EU) No. 2018/848). The legislation on organic production defines a framework in which the protection of the environment and of biodiversity is promoted and the interests of consumers are protected by means of clear and reliable information. The rules on organic production apply along the whole product life cycle, and entail – among others – the prohibition of the use of GMOs, a prohibition for the use of ionising radiation, limits in the use of artificial fertilisers, herbicides and pesticides, prohibition of the use of hormones and restriction of the use of antibiotics.

Food labelling requirements

What are the food labelling requirements, including the applicable enacted legislation, enforcement and penalties?

The main EU set of rules relating to food labelling is Regulation (EU) No 1169/2011 on the provision of food information to consumers (FIC). This regulation provides general rules on food and nutrition labelling, including the rules on the mandatory nutrition declaration that has been in force since 13 December 2016. This regulation provides that in the case of prepacked foods, the following food information must appear directly on the package or on a label attached to the package:

• the name of the food;
• the list of ingredients;
• an indication of the allergens present in the product, even if in an altered form;
• the quantity of certain ingredients or categories of ingredients (QUID);
• the net quantity of the food;
• the date of minimum durability or the ‘use by’ date;
• any special storage conditions and conditions of use;
• the name or business name and address of the FBO responsible for placing the food on the market;
• the country of origin or place of provenance in certain cases;
• instructions for use where it would be difficult to make appropriate use of the food in the absence of such instructions;
• with respect to beverages containing more than 1.2 per cent by volume of alcohol, the actual alcoholic strength by volume; and
• a nutrition declaration.

All mandatory food information must be permanently affixed in a clearly visible and legible position on the product. They must not be obscured or separated by other information, nor distracted from it. In addition to that, mandatory information must be printed in a legally prescribed size, which ensures their readability.

Specific categories of products are subject to more detailed requirements. Examples include chocolate and honey. Further requirements are laid down in other legislation such as eg EU Regulation (EC) No. 1924/2006 on nutrition and health claims. As far as it concerns the implementation of the EU regulations into national law, German law is supplemented by its Food Information Implementation Ordinance (LMIDV). This regulates, for example, that foodstuffs marketed in Germany must always be labelled in the German language.

Enforcement and penalties are defined at national level. They can also be found in section 6 of the LMIDV, which refers to special sections in the Food and Feed Code (LFGB, sections 59 and 60). The sanctions attached to non-compliance with labelling requirement are criminal sanctions (imprisonment and fines). They range from a simple fine to imprisonment for up to one year.

Food animal legislation

List the main applicable enacted legislation regarding health of food animals, including transportation and disease outbreak and management.

Legislation regarding the health of food animals is both European and domestic.

Legislation, at the European level, includes:

• Directive (EC) 64/432 on animal health problems affecting intra-Community trade in bovine animals and swine;
• Directive (EC) 91/68 on animal health conditions governing intra-Community trade in ovine and caprine animals;
• Regulation (EC) No. 1/2005 on the protection of animals during transport applies to the transport of live vertebrate animals in connection with an economic activity; and
• Regulation (EC) No. 21/2004 establishing a system for the identification and registration of ovine and caprine animals.

At the national level, Germany has enacted a lot of additional rules as far as the health of food animals is concerned. Please see the response on the regulatory environment for meat and poultry for a detailed list. As far as it concerns transportation, the law of the EU, namely Regulation (EC) No. 1/2005 on the protection of animals during transport and related operations needs to be obeyed.

Animal movement restrictions

What are the restrictions on the movement of animals within your country?

In accordance with Regulation (EC) No. 1/2005, transporters of animals that are transported over 65 km in connection with an economic activity are required to hold a transporter admission. For all journeys exceeding 65 km, all drivers of road vehicles carrying domestic equine, cattle, sheep, goats, poultry and pigs must have a certificate of professional competence issued following comprehensive training in the field of animals during transport and sanctioned by the successful completion of an examination by an independent body authorised by the competent authorities. In order to obtain this authorisation, the applicant must demonstrate in particular that he or she has sufficient and appropriate personnel, equipment and operational procedures. These authorisations are valid for five years and follow a harmonised European format. They are recorded in a publicly accessible electronic database.

For long journeys (more than eight hours), the means of transport must also have been inspected and approval must have been issued. These approvals are valid for five years. They have a harmonised European format and are stored in an electronic database accessible to the authorities of all member states.

Slaughter legislation

Where would one find the regulations related to livestock slaughtering?

Regulation (EC) No. 1099/2009 on the protection of animals at the time of killing lays down rules for the killing of animals bred or kept for the production of food, wool, skin, fur or other products, and the killing of animals for depopulation. The Regulation introduces a series of new, directly applicable operational requirements, and requirements for the construction, layout and equipment of slaughterhouses.

The Regulation also permits EU member states to maintain existing national rules in force at the time the Regulation came into force, where they provide greater protection for animals at the time of killing than those in the regulation. The Regulation provides a derogation to allow religious slaughter without prior stunning.

Germany has made use of the opportunity to maintain existing rules in force, as they provide more protection for the animals at the time of killing than EU regulations: For example, article 3 of Regulation (EC) No. 1099/2099 states that it is sufficient that the animals are spared any avoidable pain, stress and suffering during the killing process whereas the German regulation additionally requires that animals must be so restrained that they are not caused more than unavoidable excitement or harm (section 3 of the TierSchlV).

The relevant German laws are the following ones:

• the Animal Welfare Act;
• the General Administrative Regulation for the Implementation of the Animal Welfare Act;
• the Regulation on the protection of animals with regard to slaughter or killing and implementing Regulation (EC) No. 1099/2009; and
• the Animal Welfare Animal Husbandry Ordinance.

Pest control requirements

Outline the regulatory regime for pesticides in your jurisdiction.

Biocides control viruses, bacteria, fungi, insects and animals. Safeguards are crucial to ensure safety to people, the environment or animals.

At European level, two regulatory schemes concern pesticides:

• Biocidal Product Regulation (BPR) (Regulation (EU) No. 528/2012) (BPR), and its supporting legislation such as the Biocides Review Regulation (Regulation (EU) No. 1062/2014). The BPR cover a diverse group of products, including disinfectants, pest control products and preservatives.
• Regulation (EC) No. 1107/2009 provides rules concerning the placing of plant protection products on the market.

In Germany, regional authorities have also adopted additional measures in order to achieve the sustainable use of pesticides. This includes the implementation of the guideline 2009/127/EG into national law (the Equipment and Product Safety Act) as well as the establishment of their own action plans for the use of pesticides. This Directive aims at reducing the risks and impacts of pesticide use on human and animal health and the environment and promoting the use of integrated pest management and of alternative approaches or techniques such as non-chemical alternatives to pesticides.

Law stated date

Correct on

Give the date on which the information above is accurate.

18 December 2019.