A group of 25 experts from 8 EU member countries – with various backgrounds at competent authorities, control bodies, companies, technical institutes, consulting companies – contributed to the drafting of a Vademecum on official investigations and the measures to be adopted in cases of contamination of organic products with prohibited substances. (1)
1) Organic, possible contamination by prohibited substances
Organic products – as well as foods, including conventional ones, intended for infants and children under the age of three (2) – must not contain traces of prohibited substances (i.e. pesticides and other ‘plant protection products’). Accidental and technically unavoidable contamination, not attributable to the operators, can also occur due to environmental pollution, as we have seen. (3)
Following lively debates between the large agricultural confederations and the representatives of organic farmers, Regulation (EU) No 2018/848 ‘ on organic production and labeling of organic products ‘ recognized the risk of possible contamination by unauthorized substances, which has already been widely demonstrated in the scientific literature (2,3). Predicting:
– the ‘precautionary measures aimed at avoiding the presence of unauthorized products and substances ‘(Article 28)
– ‘measures to be adopted in the event of the presence of unauthorized products or substances’(Article 29).
2) ‘Reverse’ discrimination
The principle of free movement of goods is expressed in the absolute prohibition of quantitative and qualitative restrictions in the Union market. Nonetheless:
– Reg. (EU) 2018/848 allows Member States to introduce or maintain more stringent legal requirements (i.e. contamination thresholds) only on products produced in their territories (4)
– the Member States can thus introduce rules to the disadvantage of operators based on their territories, i.e. ‘contraria discrimination’ (5,6)
– the Court of Justice furthermore has already clarified that ‘contraria discrimination’ is equivalent to restrictions on free movement and is therefore contrary to EU law. (7)
It is hoped therefore the European Commission wants to intervene on this violation of the TFEU (Treaty on the Functioning of the European Union), without needing to wait for a new ruling from the CJEU (Court of Justice of the European Union).
3) Official investigations
The competent authority who receives information on the presence of unauthorized products or substances, which suggests non-compliance with EU Regulation 2018/848, must conduct an official investigation to determine the source and cause.
Our products in question cannot be marketed as organic if the official investigation concludes that the operators:
– have used unauthorized products or substances, or
– have not adopted adequate precautionary measures to avoid the risk of contamination, (8) or
– have failed to take measures in response to previous relevant requests from competent authorities, supervisory authorities or control bodies (Article 29).
3.1) Application issues
‘After two years of application of the new regulation, the issue has generated numerous reactions and discussions. What are the concerns?
– Pesticides are present everywhere;
– we often cannot determine its origin;
– a systematic investigation is burdensome, expensive and often long-lasting;
– the results of residues lead to the blocking of goods and therefore create uncertainty in the entire trade chain;
– it could be problematic to block all affected products while waiting for the results, especially for perishable products’ (Verlet & Neuendorff et al., 2024, preface). (1)
3.2) Impact on supply chains and operators
The impact of application issues mentioned above on the supply chains and operators involved is extremely burdensome in economic terms, as well as involving the risk of product blockages which can cause unnecessary food waste:
– on a commercial level, ‘there is a tendency to accept only organic products free of residues to avoid the burden and cost of an investigation and the risk of product blocking’
– the supervisory authorities, in turn, may be ‘tempted’ to ‘quickly conclude that the contamination is caused by a natural occurrence or accidental contamination, even if this conclusion is based on insufficient evidence or there is a lack of convincing evidence about such source and cause’ (Verlet & Neuendorff et al., 2024, preface). (1)
4) Vademecum on official investigations
‘ Vade Mecum on Official Investigation in Organic Products (Good Implementation Practices for Articles 28 and 29 of Regulation EU 2018/848) ‘ aims to support all stakeholders in the prevention and management of contamination of organic products with unauthorized substances.
The Handbook was produced with the support of the Bundesprogramm Ökologischer Landbau (the German federal government’s scheme for organic farming). Thanks to the collaborative contribution of the 25 experts mentioned in the introduction (with the Italians Samanta Rosi Bellière, technical consultant of the International Organic Accreditation Service and Roberto Maresca, head of the organic certification scheme of the control body CCPB, to which is added the member of the editorial committee Roberto Pinton).
4.1) Structure of the document
The different chapters of the Vademecum focus on the presence of substances that come from plant protection products, which represent the vast majority of cases notified in the OFIS ( Organic Farming Information System).
Such substances or products include:
– active substances in fertilizer, soil improver and nutrient plant protection products
– food ingredients
– food additives
– raw materials for feed
– feed additives
– products for cleaning and disinfection of tanks, cages, tanks, wards, buildings and plants used for animal production
– products for cleaning and disinfection of buildings and facilities used for plant production, including for storage on an agricultural holding
– products for cleaning and disinfection of processing and storage plants.
The tools and methods proposed are, however, also relevant for official investigations relating to other products or substances.
Dario Dongo
Footnotes
(1) Verlet & Neuendorff et al. (2024). A Vade Mecum on Official Investigation into Organic Products. Good Implementation Practices for Articles 28 and 29 of Regulation (EU) 2018/848. Anti-Fraud Initiative. https://shorturl.at/gCW4r
(2) Dario Dongo. Organic, reg. EU 2018/848 . GIFT (Great Italian Food Trade). 22.6.18
(3) See paragraph 2.2, last paragraph, of the previous article by Dario Dongo and Alessandra Mei. Pesticide residues in organic products, accidental contamination under control . GIFT (Great Italian Food Trade). 18.10.22
(4) EU Reg. 2018/848, article 29, paragraph 5,7
(5) Marta Strinati, Dario Dongo. Italian law on organic, more shadows than lights. Interview with Roberto Pinton . GIFT (Great Italian Food Trade). 7.3.22
(6) In Italy, see legislative decree 6 October 2023, n. 148 (on Normattiva, https://tinyurl.com/msk3xu73)
(7) Verbist V. Reverse Discrimination with Respect to Goods. In: Reverse Discrimination in the European Union: A Recurring Balancing Act. Discrimination Law in Theory and Practice. Intersentia; 2017:183-196
(8) ‘A systematic approach is needed on how to minimize such contaminations and how to act in case of their presence. This systematic approach must be evaluated by the control authorities/bodies and therefore represents a new and crucial element for the protection of biological integrity. In addition to this, operators involved in organic production must comply with many other objectives to ensure compliance with Regulation (EU) 2018/848’ (Verlet & Neuendorff et al., 2024, preface. See note 1)
Dario Dongo, lawyer and journalist, PhD in international food law, founder of WIISE (FARE - GIFT - Food Times) and Égalité.
