Writing in the journal European Food and Feed Law Review, Tobias Teufer, a lawyer with German firm Krohn Rechtsanwälte, said the ruling has potentially severe consequences for the marketing of honey in the EU in terms of new testing and labelling costs.
Teufer argues that the ECJ ruling goes against the spirit and purposed of the original legislation covering GMOs in food with the European legislator having purposefully excluded several scenarios from the application of the Regulation in order to make it work in practice.
September 2011 saw the ECJ, the highest court in the bloc, decree under a modification of Regulation (EC) No. 1829/2003 that honey containing traces of pollen from genetically modified (GM) plants must receive prior authorisation before it can be sold as food in the EU.
Prior to the ECJ’s decision, foodstuffs containing honey were not required to declare the presence of pollen on their labels.
The ruling means that honey should not contain pollen from GM sources, unless the pollen has the appropriate authorisation for food use in the EU. If the pollen is from an approved GM source and if the total pollen content exceeds the 0.9% threshold allowed for adventitious presence, it should also be labelled accordingly.
According to the ECJ’s current jurisdiction, any presence of traces of pollen from GM crops triggers the application of Regulation (EC) No. 1829/2003 with its authorization and labelling requirements.
“In practice, beekeepers and businesess trading honey all over the world must commission thousands of expensive laboratory analyses in order to determine whether they can lawfully market their honey in the EU.
And because of the inhomogeneous character of honey they doe not even know whether they can rely on the results of these analyses,” writes Teufer.
But the legal specialist argues that the ECJ’s ruling is based on a false factual foundation and that its judges ruled erroneously due to not being correctly informed about the production and harvesting of honey.
Teufer claims that pollen is not “used” in the production of honey, contrary to what the Court concluded, and thus cannot be classified an ingredient - the basis for the ECJ’s amendment of the legislation.
“Pollen is already present in the nectar which is stored and worked upon by the bees in the honey-combs of the beehive,” he writes.
This opens up the opportunity for national courts contest the regulation, said Teufer, while the general labelling provisions under the new Food Information Regulation (FIR), he added, would also allow for the referral of the interpretation of the ingredient definition of pollen to the ECJ.
“What is needed is a workable interpretation of the current law and in the longer run amendments to the legal provisions concerned,” stressed Tuefer
Source: European Food and Feed Law Review (EFFL)
Volume 6 Number 6 2011
Title: GMO-Regulation (EC) No. 1829/2003 and Honey: How to Proceed
Author: Tobias Teufer