The New Novel Food Regulation (hereinafter the “new NFR“), entered into force on 1 January 2016, will become applicable from 1 January 2018.
Among the many novelties, the new NFR clarifies the legal status of edible insects which now fall within category (v) of Article 3(2) which encompasses food consisting of, isolated from or produced from animals or their parts. The regulatory classification of insects as novel food implies that they need to be authorized before being placed on the market unless the food business operator is able to demonstrate that the insect species was used for human consumption to a significant degree within the Union before 15 May 1997.
This means that when the new NFR will become applicable, insects and insects based products will be considered as novel food also in the Member States in which they were deemed to be outside the scope of the old novel food regulation and where they are currently sold (e.g. UK, Netherlands, France, Belgium, Denmark etc.).
The shift in the regulation requires the food operators which are currently placing on the market insects and insects based foods to authorize their products to keep on the commercialization.
However, since applications are time consuming and it takes at least seventeen months to get the pre-market authorization, the new NFR provides transitional measures that would ensure food operators to keep on placing on the market their products until authorizations are granted.
Article 35(2) of the new NFR provides that foods not falling within the scope of the old novel food regulation, which are lawfully placed on the market by 1 January 2018 and which fall within the scope of the new NFR may continue to be placed on the market until a decision is taken following an application for authorization of a novel food or a notification of a traditional food from a third country submitted by the date specified in the implementing rules but no later than 2 January 2020.
Article 35(2) seems to address the case of insects which are considered to be outside the scope of the old novel food regulation in some Member States, while they are currently considered as such under the new NFR. According to these rules, insects may continue to be placed on the market until 2 January 2020 provided that the following conditions are met:
– Insects or insects based products shall be lawfully placed on the market by 1 January 2018. The norm requires that the product shall be already lawfully placed on the market when the new NFR becomes applicable. This requirement can be met only in those countries in which insects and insects-products are deemed to be outside the scope of the old novel food regulation (e.g. Belgium, Denmark, UK, Netherlands etc.).
– The food business operator shall submit an application by 1 January 2019. Article 8(5) of the draft regulation laying down administrative and scientific requirements for applications provides that the deadline for the submission of the applications referred to in Article 35(2) of the new NFR shall be 1 January 2019. This means that – unless the date is modified in the final version of the implementing regulation – food business operators shall submit the application by 1 January 2019 if they want take advantage of the transitional period and keep on marketing their products until 2 January 2020.
As concern the insect business operators that do not meet the above-mentioned conditions, from January 1st, 2018 they are not allowed to place insects and insect-products on the EU market, unless they present an application according to the new Novel Food Regulation.
