First ECJ ruling on current Novel Food Regulation
Posted: June 21, 2023 Filed under: Authors, Food, novel food Comments Off on First ECJ ruling on current Novel Food Regulation
On May 25, the European Court of Justice (ECJ) ruled in a dispute arising between two manufacturers of food supplements. This is the first decision on the interpretation of the current Novel Food Regulation (applicable since Jan. 1, 2018). The dispute concerned the method of production of the functional ingredient spermidine. The dispute was hoped to clarify the question of what exactly a “new production process” under the Novel Food Regulation entails. The decision follows a request from a court in Austria, where this answer was needed to resolve a national dispute. This answer is also relevant to other countries, as the Novel Food Regulation applies EU-wide.
Why do people consume spermidine?
Spermidine supplementation takes place with a view to supporting cellular autophagy, or cell renewal. This could promote the prevention of cardiovascular disease, prevent food allergies, and control the symptoms of diabetes. It has even been suggested that spermidine could extend human lifespan by 5 to 7 years. So says Advocate General (A-G) Campos Sánchez-Bordona in his opinion on the case dated Jan. 19 this year, citing various scientific sources (see footnotes 12 and 13 of this opinion). The A-G is an important advisor to the ECJ, which generally follows his or her opinions.
Background to this dispute.
The dispute in Austria was brought by The Longevitiy Labs (TLL), which markets the spermidine supplement spermidineLIFE. TLL extracts spermidine from ungerminated wheat germs through a complex and expensive chemical process. TTL applied for and obtained an EU Novel Food authorization for this food product (see Union List, entry “spermidine-rich wheat germ extract“). Then competitor Optimize Health Solutions enters the market with its own spermidine supplement. This is produced using a much simpler and therefore cheaper production process based on hydroponic cultivation of buckwheat seeds in an aqueous solution with synthetic spermidine. After harvesting the seedlings are washed in water, dried and milled to obtain flour. TLL believes that Optimize Health also needs a Novel Food authorization to market its product. It instituted proceedings seeking an injunction against further marketing of Optimize Health’s product without such an authorization.
Optimize Health argues it does not need a Novel Food authorization, because its product is not covered by the Novel Food Regulation. It is a fully dried traditional food obtained without any selective novel extraction method. Furthermore, it states spermidine has been available in food supplements in the EU market for more than 25 years. The germination of the buckwheat seeds of which its product is made would be a primary production process, to which the EU Hygiene Regulation applies, not the Novel Food Regulation. Furthermore, the Novel Food Regulation does not apply because its product involves “plants prior to harvesting” and these do not count as food under the EU General Food Law Regulation. The Austrian court decided that clarification of European law was needed to resolve this dispute and referred five questions to the ECJ.
Questions from the Austrian referring court
National judges who refer questions to the ECJ usually go for as many anchors as possible and thinking three steps ahead. If a possible answer by the ECJ to one question leads to a follow-up question by the inquiring national court, that follow-up question will be submitted upfront as well. The downside of this system is that if answering the first question is the end of the matter, answering the remaining questions is no longer needed. That is what we call procedural economy. In summary, the referring Austrian court asks the following questions:
- Should a food consisting of flour from buckwheat seeds with a high spermidine content be qualified as Novel Food in the category “foods isolated from (parts of) plants?”
- If not, might it be a Novel Food because a new production process has been used and does that term include primary production processes?
- If it is a novel production process, does it matter whether that process was not applied at all or only not applied to spermidine?
- If primary production processes are not covered by the term “new production process”, is it correct that the process of germinating buckwheat seeds in a nutrient solution containing spermidine is not covered by the Novel Food Regulation because it does not apply to plants prior to harvesting?
- Does it make a difference whether the nutrient solution contains natural or synthetic spermidine?
Decision of the ECJ
The ECJ answers question 1 – be it with some reservation – in the affirmative. Optimize Health’s product is a Novel Food because there is no evidence that this product was used for human consumption to any significant degree within the EU before 1997. This short answer is somewhat disappointing, as it makes answering the remaining questions irrelevant. Still, the ECJ does share two interesting considerations regarding the current Novel Food Regulation. It points out that the concept of “history of safe use within the Union” is not defined with respect to Novel Foods that must undergo the full authorization process. However, it is defined with respect to traditional foods from third countries. These are products that have been used as food outside the EU for considerable time, such as chia seeds. These products are subject to the requirement that the safety of the food has been confirmed by compositional data and experience of continued use for at least 25 years in the usual diet of a significant number of people in at least one third country. The ECJ finds that this requirement must be applied by analogy to the spermidine in question and concludes that said data have not been provided.
Propagation methods vs. complete production process
Another consideration of the ECJ concerns the Novel Food category of “food isolated from (parts of) plants”. An exception applies to products made by non-traditional propagation methods, which do not result in significant changes in the composition or structure of the food in question. The ECJ ruled that a distinction must be made between:
(1) propagation processes of which the purpose is to produce new plants; and
(2) processes involving the entire production process of a food product.
The process applied to Optimize Health’s product to achieve a high spermidine content falls into the second category. In other words, a manufacturing technique to enrich a product is not the same as a propagation technique. The ECJ instructs the Austrian court to take this into account when deciding the case at the national level. This reduces the likelihood that the exception to the Novel Food category above will apply and puts the ECJ’s reservation into perspective. Good chance, therefore, that the Austrian national court will indeed determine that Optimize Health’s product is a Novel Food.
New production procedure according to the A-G
With the above answer, the question of the Austrian court has been answered and the ECJ does not get to the remaining four questions. It is of course unfortunate that we will not know the ECJ’s decision on this. Therefore, it is interesting to see how the A-G ruled on this. Well: according to the A-G, enriching buckwheat seeds with spermidine should be considered a new production process. He argues that bio-enrichment with spermidine changes the composition and nutritional value of the buckwheat seeds flour. Indeed, its spermidine content becomes 106 times higher than that of un-enriched buckwheat seeds. The A-G cites studies according to which a higher spermidine content may be beneficial to health, but which also indicate that too high an amount of spermidine could be harmful to cells.
The A-G therefore concludes that prior authorization of Optimize Health’s product is indispensable to ensure food safety and avoid risks to consumers. He also refers to products such as selenium-enriched mushrooms and mushrooms treated with ultraviolet light after harvest to increase their vitamin D2 content, where such authorization has also taken place. Furthermore, the A-G argues that the effects and thus the safety of a new production process should be assessed in each individual case and thus not in general. The same production process may affect one foodstuff differently from another.
Conclusion
This spermidine case clarifies the criterion that should be applied to determine whether a food has a history of safe use in the EU and thus qualifies or not as Novel Food. By the way, this is not entirely new – there has already been a guidance document from the European Commission “Human Consumption to a Significant Degree” since 1997 that argues essentially the same thing. However, when this judgment is considered in conjunction with the A-G’s opinion, it does provide relevant new information for determining how to establish whether there is a new production process.
This is the case if it is established that an applied process significantly alters the composition and nutritional value of a foodstuff compared to a foodstuff to which such a process has not been applied. Thus, in such a case, a food must obtain authorization under the Novel Food Regulation. The A-G recognizes that the question whether it is relevant if the production process has been previously applied to any foodstuff (rather than to the foodstuff specifically) cannot simply be answered based on the legal text. So that requires interpretation of the specific article of the Novel Food Regulation on new production processes in the light of its context and purpose. For now, we do not yet know whether the ECJ supports his interpretation. Hopefully we will find out in another case. It does sound plausible to me.