Food Extracts with Colouring Properties – Colouring Foods – Classification Requirements Dr. Andreas Reinhart: April 2012 | © meyer.rechtsanwaelte Partnerschaft
dr. andreas reinhart | 18.04.12
Introduction • At the present time there is no separate legal framework regulating foods with colouring properties – so called Colouring Foods.
• Article 2 of Reg. (EC) No. 178/2002 (Definition of ‘Food’): „‘food’ means any substance or product, whether processed, partially processed or unprocessed, intended to be, or reasonably expected to be ingested by humans. ‘Food’ includes … any substance, including water, intentionally incorporated into the food during its manufacture, preparation or treatment. …”
• Annex I No. 2 of Reg. (EC) 1333/2008 (Definition of ‘Colours’) : „‘colours’ are ... Preparations obtained from foods and other edible natural source materials obtained by physical and/or chemical extraction resulting in a selective extraction of the pigments relative to the nutritive or aromatic constituents are colours within the meaning of this Regulation”.
dr. andreas reinhart | 18.04.12
Introduction European Parliament´s Legislative Resolution, 6 June 2011 – Draft of a regulation on the provision of food information to consumers - Amendment No. 126:
• “Natural extracts excluding food colours from fruit, vegetables and edible plants or parts of plants obtained by means of mechanical/physical procedures and used in concentrated form to colour food. • `Colouring food´ (followed by the individually identified ingredient)” Speech of John DALLI in the European Parliament (05.07.2011 - SPEECH/11/513): “Third, a Declaration by the Commission on colouring food The Commission is working with the Member States on developing guidance on the classification of food extracts with colouring properties. It is expected that the guidance will be finalised in the second half of 2012. The outcome of this technical work will provide the basis for refining the definition of colouring foods and for enabling the provision of accurate information to consumers in relation to the use of food ingredients with colouring properties.” dr. andreas reinhart | 18.04.12
Short Legal Overview • In order to establish a simple and practical differentiation test between Colouring Foods and additive food colours within the EU, the Working Group Additives (WGA) has embarked on the task of developing effective and practical Guidance Notes.
• The Guidance Notes have factual legal effect since national courts and authorities as well as industrial enterprises will consult them when enforcing Community Law.
• The contents of the Guidance Notes have to be consistent with the legal framework, in particular with requirements of the definition of an additive food colour. Otherwise a decision taken on the basis of the Guidance Notes will be unlawful.
dr. andreas reinhart | 18.04.12
Short Legal Overview • The drafted Guidance Notes (Rev. 7) – in particular the question “Q3” with the criteria “C1” + “C3” – are unlawful because the Guidance Notes do not conform to the Regulation (EC) No. 1333/2008.
• Criteria C1 + C3 go beyond the definition of “colours”. There are no indications in the Regulation (EC) No. 1333/2008 for characteristic properties (C1) or reconstitution (C3).
• Processes are not relevant to the decision of the borderline, because this is not part of the key question "pigments relative to nutritive or aromatic constituents“. _ The only legally valid parameter is: “selective extraction of the pigments relative to the nutritive or aromatic constituents ”.
dr. andreas reinhart | 18.04.12
Short Legal Overview • Annex I No. 2 of Reg. (EC) 1333/2008: “… extraction resulting in a selective extraction of the pigments relative to the nutritive or aromatic constituents are colours within the meaning of this Regulation.”
• C2: “Is the ratio of the content of the colouring substances (pigments) to that of the nutritive or aromatic constituents or group of constituents (e.g. characteristic flavour compounds, sugars, vitamins, acids, polyphenolic compounds) in the extract not significantly different from that present in the original food?”
• When do we have a “selective extraction” / “significant difference”? = When do we have a significant enrichment of the pigments relative to the nutritive / aromatic constituents? _ We need a clear and uniform enrichment factor throughout the EU. dr. andreas reinhart | 18.04.12
Short Legal Overview • The Guidance Notes have to give guidance for differentiating foods with colouring properties (Colouring Foods) from additive food colours.
• Its purpose is to provide a working tool for business operators and enforcement authorities of the Member States when considering if a substance is an additive food colour or a colouring food.
• That´s why there is a need for a „quantitative borderline“ („a number“) which is comprehensible to everybody.
• Colouring products (e.g. Carrot Concentrate) are classified by German authorities according to German ALS criteria (Enrichment Factor less than 8 – 10) as foods.
• UK trading standards classifies Colouring products (e.g. Carrot Concentrate) as foods. dr. andreas reinhart | 18.04.12
Contact
Dr. Andreas Reinhart attorney-at-law meyer.rechtsanwaelte Partnerschaft Sophienstrasse 5, Etage 3 D-80333 Munich Fon +49 (0) 85 63 88 0 - 0 Fax +49 (0) 85 63 88 0 - 22 E-Mail: reinhart@meyerlegal.de Internet: www.meyerlegal.de
dr. andreas reinhart | 18.04.12