Article 3(4) of Regulation (EC) No 178/2002 (1):

‘feed’: any substance or product, including additives, whether processed, partially processed or unprocessed, intended to be used for oral feeding to animals.

Following on from this broad definition of feed, recital 3 of Regulation (EC) No 767/2009 states that ‘feed may take the form of feed materials, compound feed, feed additives, premixtures or medicated feedingstuffs.’

Article 3(2) of Regulation (EC) No 767/2009:

‘feed materials’: products of vegetable or animal origin, whose principal purpose is to meet animals’ nutritional needs, in their natural state, fresh or preserved, and products derived from the industrial processing thereof, and organic or inorganic substances, whether or not containing feed additives, which are intended for use in oral animal-feeding either directly as such, or after processing, or in the preparation of compound feed, or as carrier of premixtures;

‘carrier’: a substance used to dissolve, dilute, disperse or otherwise physically modify a feed additive in order to facilitate its handling, application or use without altering its technological function and without exerting any technological effect itself;

‘feed intended for particular nutritional purposes’: feed which can satisfy a particular nutritional purpose by virtue of its particular composition or method of manufacture, which clearly distinguishes it from ordinary feed. Feed intended for particular nutritional purposes does not include medicated feedingstuffs within the meaning of Directive 90/167/EEC;

‘oral feeding of animals’: the introduction of feed into an animal’s gastrointestinal tract through the mouth with the aim of meeting the animal’s nutritional needs and/or maintaining the productivity of normally healthy animals.

Article 2(2)(a) of Regulation (EC) No 1831/2003 (2):

‘feed additives’: substances, micro-organisms or preparations, other than feed material and premixtures, which are intentionally added to feed or water in order to perform, in particular, one or more specific functions that are enumerated in Article 5(3) of the Regulation:

Article 2(2)(h) of Regulation (EC) No 1831/2003:

‘processing aids’: any substance not consumed as a feedingstuff by itself, intentionally used in the processing of feedingstuffs or feed materials to fulfil a technological purpose during treatment or processing which may result in the unintentional but technologically unavoidable presence of residues of the substance or its derivatives in the final product, provided that these residues do not have an adverse effect on animal health, human health or the environment and do not have any technological effects on the finished feed.

Moreover, recital 11 of Regulation (EC) No 767/2009 reads as follows: ‘(…). Feed materials are primarily used to meet animals’ needs, for example for energy, nutrients, minerals or dietary fibres. They are usually not chemically well-defined except for basic nutritional constituents. Effects which can be justified by scientific assessment and which are exclusive to feed additives or veterinary drugs should be excluded from the objective uses of feed materials. (…)’

(a)

to supply energy, nutrients, minerals or dietary fibre; and

(b)

to maintain the function of the intestinal tract,

Article 2(1) of Directive 98/8/EC (3):

‘biocidal products’: active substances and preparations containing one or more active substances, put up in the form in which they are supplied to the user, intended to destroy, deter, render harmless, prevent the action of, or otherwise exert a controlling effect on any harmful organism by chemical or biological means;

‘active substance’: a substance or micro-organism including a virus or a fungus having general or specific action on or against harmful organisms;

‘harmful organism’: any organism which has an unwanted presence or a detrimental effect for humans, their activities or the products they use or produce, or for animals or for the environment.

Point 1(a) of Annex I to Regulation (EC) No 1831/2003:

‘preservatives’: substances or, when applicable, micro-organisms which protect feed against deterioration caused by micro-organisms or their metabolites.

Article 1(2) of Directive 98/8/EC provides for the following:

‘This Directive shall apply to biocidal products as defined in Article 2(1)(a) but shall exclude products that are defined or within the scope of the following instruments for the purposes of these Directives:

(…)

(…)’.

Annex V to Directive 98/8/EC contains an exhaustive list of 23 product types with an indicative set of descriptions within each type, including the following feed related product types:

Product-type 3: Veterinary hygiene biocidal products: Products in this group are biocidal products used for veterinary hygiene purposes including products used in areas in which animals are housed, kept or transported.

Product-type 4: Food and feed area disinfectants: Products used for the disinfection of equipment, containers, consumption utensils, surfaces or pipework associated with the production, transport, storage or consumption of food, feed or drink (including drinking water) for humans and animals.

Product-type 5: Drinking water disinfectants: Products used for the disinfection of drinking water (for both humans and animals).

Product-type 20: Preservatives for food or feedstocks: Products used for the preservation of food or feedstocks by the control of harmful organisms.

Article 1 of Directive 2001/82/EC (4):

‘veterinary medicinal product’:

‘medicated feedingstuffs’: any mixture of a veterinary medicinal product or products and feed or feeds which is ready prepared for marketing and intended to be fed to animals without further processing, because of its curative or preventive properties or other properties as a medicinal product covered by the definition ‘veterinary medicinal product’.

Article 2(2) of Directive 2001/82/EC provides for the following:

Article 3(1) of the same Directive provides for the following:

Article 13(3) of Regulation (EC) No 767/2009 reads as follows:

‘The labelling or the presentation of feed materials and compound feed shall not claim that:

—

If, after consideration of all the characteristics of an unclassified product, the conclusion is that it might be a VMP, it should be considered a VMP (precedence of the VMPs legislation over feed legislation, except for authorised feed additives).

—

Medicated feedingstuffs are not VMPs but, according to recital 3 of Regulation (EC) No 767/2009, a form of feed containing medicated pre-mixes and being subject to a prescription by a veterinarian.

—

Based on the definition of ‘particular nutritional purpose’ (see under point 1.1 above), the borderline between feed and veterinary medicinal products is set. The particular nutritional purposes such as ‘support of liver function in the case of chronic liver insufficiency’, ‘reduction of urate stones formation’ or ‘reduction of the risk of milk fever’ can be achieved by feed.