(2004/C 33 E/221)

WRITTEN QUESTION E-2106/03

by Christopher Huhne (ELDR) to the Commission

(25 June 2003)

Subject:   Food legislation

Can the Commission state whether there is any legislation that prevents some British food chain stores from donating food to charities that they would normally throw away?

Answer given by Mr Byrne on behalf of the Commission

(23 July 2003)

The general principles and requirements of food law are laid down in Regulation (EC) No 178/2002 of the Parliament and of the Council of 28 January 2002 (1), which covers all stages of production, processing and distribution to the final consumer. In particular, article 14 establishes a general food safety obligation (2):

Circumstances, which shall be taken into account in determining whether any food is unsafe, injurious to health or unfit for human consumption, are laid down in paragraphs 3 to 9 of the same article.

Article 3.8 of the said Regulation defines ‘placing on the market’ as the holding of food or feed for the purpose of sale, including offering for sale or any other form of transfer, whether free of charge or not, and the sale distribution and other forms of transfer themselves.

The donation of food by a food chain store to charities constitutes a form of free of charge transfer of food. Consequently, it must be considered as placing on the market and as such is subject to the requirements established in the aforementioned article 14.

It follows that, in the light of article 14 of Regulation (EC) No 178/2002, food business operators may not donate to charities food, which they would normally throw away because of non-compliance of the food in question with the food safety requirements.

However, it should be noted that article 14 of Regulation (EC) No 178/2002 does not prevent food business operators from donating to charities safe food, which they would normally throw away, because of its non-compliance with private quality standards voluntarily adopted by the operators in question.

(1)  OJ L 31, 1.2.2002.

(2)  Although, according to the Regulation, article 14 shall apply only from 1 January 2005, it should be considered to apply also at present, given that it does not create a new legal obligation for food business operators but it simply confirms an overriding principle of food legislation. In any case, until 1 January 2005, the general food safety requirement is covered by the equivalent provisions (article 3) of the general product safety Directive 92/59/EEC, which will be repealed the 15 January 2004 by Directive 2001/95/CE. The provisions of this Directive apply in so far as there are no specific Community rules governing the products concerned.