Is mutual recognition working for food supplements?

When a company decides to import a foodstuff, including supplements, in a Member State (MS) of the European Union from another MS, it becomes important to evaluate the national legislation of that specific Member State, in terms of nutrients and substances permitted and their levels of use, but considering also the principle of Mutual Recognition, often ignored by companies and authorities alike.

According to Regulation (EC) 764/2008, Mutual Regonition is the principle of free movement of products within the market of the European Union. It applies to products not subject to harmonized legislation: “according to that principle, a Member State may not prohibit the sale on its territory of products which are lawfully marketed in another Member State, even where those products were manufactured in accordance with technical rules different from those to which domestic products are subject.”. The only exception to this principle are restrictions based on Article 30 of the EU Treaty.

However, our experience in the food supplement sector shows that this principle is often neglected by national authorities. It is often the case that an authority of a Member State practically bans a notified product based on national legislation or administrative practices. Even if the principal of mutual recognition under Regulation 764/2008 is claimed, the authorities flatly ignore the reference.

For such cases, Regulation 764/2008 also establishes Product Contact Points included in a list published on the EC website. One company may contact these points to get information to proceed with mutual recognition. However, they are often of little help. In one case, for instance, they got back to us saying that since there is no harmonization in substances permitted in food supplements in the EU, so they concluded that there is no wrong application of the EU law. This contrasts with the very reason Regulation 764/2008 was set up for.

We are looking forward to the European Commission’s steps to ensure the application of the regulation, as well as court rulings.

Matteo

Sports Nutrition Team

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