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Three changes in Belgian food law in 2023

Food law is extensively harmonized throughout the EU, but national law still has a role to play. In this short article, we look at three developments in Belgian food law that have taken place in 2023: the amendments to the Food Safety Agency’s administrative fining regime, the introduction of nutrivigilance, and the announced revision of the food hygiene legislation.

1. Amendments to the Food Safety Agency’s administrative fining regime

The Federal Agency for the Safety of the Food Chain (“FASFC”) is in charge of enforcing food law in Belgium. If a food law is violated, then the FASFC can issue an administrative fine in accordance with Chapter III of the Royal Decree of 22 February 2001 on FASFC’s control powers. The Law of 7 April 2023 has amended Chapter III of the Royal Decree by providing a more comprehensive outline of the steps of the fining procedure and the role of the different actors. The amendment is supplemented by the Royal Decree of 30 August 2023, which contains additional details.

There are a few noteworthy changes:

• When an infringement is established, the official report is first sent to the public prosecutor, who has the prerogative to initiate criminal proceedings.
• The statute of limitations is 5 years from the offence. But acts of investigation and prosecution carried out within this period, interrupt it and bring about a new 5-year period.
• The food business concerned can appeal the fining decision before the civil court of first instance. Such fining decisions are mostly an administrative matter. But the legislator has made the express choice to bring these cases before a civil court who will have full competence to examine the file as a whole (i.e. both factually and legally).

2. Nutrivigilance in Belgium for certain food products

The consumption of food products could have unwanted, harmful effects. In particular, the legislator is worried about novel foods, food supplements, foods for specific groups (such as infants), and fortified foods. Therefore, two Royal Decrees of 3 December 2023 (here and here in Dutch) have introduced a system of nutrivigilance in Belgium to monitor the side effects of these food products. A similar system already exists in other EU countries, such as France. In Belgium, we already have pharmacovigilance (for medicinal products), materiovigilance (for medical devices), and cosmetovigilance (for cosmetics). Food products can now be added to this list.

Nutrivigilance deals with side effects, which is defined as: “a reaction harmful to human health attributable to the use of a food”. Although this definition is very broad, the Federal Public Service (FPS) Health has clarified that the intention is to cover the side effects of compliant food products (for example, due to an interaction with another product) rather than food contamination. Examples of side effects are: a rash, intestinal cramps, weight loss, hypertension, fever, headaches, constipation, etc.).

Consumers and medical professionals have the option to report side effects. However, for food businesses such reporting is mandatory. They must notify the FPS Health within 10 days of becoming aware of the side effect(s). Interestingly, the reporting obligation also extends to side effects of which the food business “can reasonably be expected to be aware”.

3. Announced: Revision of the food hygiene legislation

The Council of Ministers has announced an amendment to the Royal Decree of 13 July 2014 on food hygiene. Reportedly, the main amendments concern:

• Shelf life;
• The cold chain and storage conditions of foodstuffs in retail outlets;
• The general registration of treatments with biocides; and
• The abolition of pre-harvest checks for certain vegetables in the primary sector.

Currently, the Council of State is reviewing the draft Royal Decree.

If you would like any further information, please contact Bregt Raus or Philippe de Jong.