Date: Nov 07, 2018
Edible insects are covered by the EU’s novel food regulation – but none have yet made it to the list of authorised novel foods. Legal experts from Keller and Heckman Katia Merten-Lentz and Caroline Commandeur weigh in on the the legal status of edible insects in Europe.
The importance of proteins in daily diet is now widely recognised across the world. At the same time, traditional animal sources of proteins like meat, containing all the nine essential amino acids necessary for the human diet, are becoming increasingly controversial, especially as a consequence of their big environmental footprint.
In this context, insect consumption could be an answer. Insects are complete proteins, comprising of all nine amino acids. They are also much more environmentally friendly than traditional meat production.
However, the marketing of edible insects within EU remained a sensitive issue for a long time. The legal gap on their status was only filled in 2015, with the adoption and update of the Novel Food Regulation, applicable since 2018.
Legal gap on insects' status
In 1997, when the first Novel Food Regulation (EC) No 258/97 was adopted, it defined as ‘novel’ any food or food ingredient which had not been used for human consumption to a significant degree before 15 May 1997 and which fell under one of the categories listed by the regulation, including “food ingredients isolated from animals”.
However, it was silent regarding whole insects and ingredients from whole insects – such as whole insects flour, leading to diverging national interpretations on the legal status of these foods and ingredients.
For instance, the UK Food Standard Agency considered whole insects and their parts as not covered by Novel Food Regulation, while France, Spain and Sweden systematically considered insects, whichever their shape, as novel food requiring a pre-market authorization. The Belgium authorities adopted a tolerance policy in relation to ten insect species, and in Germany, no position was taken at federal level, leading to differentiated approaches among the different German ‘Länder’.
To fix and harmonize the legal status of edible insects across EU, the expanded definition of novel food since 2015 explicitly includes “food consisting of, isolated from or produced from animals or their parts” in the categories of food that may constitute a novel food. To dispel any doubts, recital 8 of the new novel food Regulation even states that “those categories should cover whole insects and their parts”.
Insects now clearly fall into the scope of the Novel Food Regulation, and for this reason must be specifically authorized and included in the Union list of authorized novel food, to be placed on the European market.
However, such list, established by Regulation (EU) No 2017/2470, does not contain any insects or food derived from such animals yet.
The patchwork of legislation in Member States necessitated the introduction of transition arrangement to cover foods that had been legally sold prior to 2018.
Article 35(2) of Regulation (EU) No 2018/2283 details these transitional measures with respect to insects lawfully placed on the market before 1st January 2018 in Member States who previously permitted it such as Netherlands, UK, Finland or Denmark.
Such products may continue to be marketed until an Novel food authorization is granted in accordance with the new novel food rules. In other words, food business operators have to submit to the Commission either an application for authorization of a novel food (in accordance with articles 10 to 13 of the Novel Food Regulation), or a notification of a traditional food from a third country (as set out in articles 14 to 20 of the Novel Food Regulation).
There is a strict deadline for submitting their dossier: before 1 January 2019.
Strategic choice for applicants: notification and authorization procedure
Whether to seek approval via the authorization or notification procedure is an important strategic decision for food makers.
As insects are commonly part of the daily diet in other parts of the world and derived from primary production, they could theoretically fit with the definition of traditional foods from third country. If a food business operator is able to demonstrate a history of safe use for at least twenty-five years in a third country, he can opt for a simplified procedure of notification, instead of following the whole procedure of authorization.
However, this notification procedure does not prevent Member States and/or European Food Safety Authorities from making some duly reasoned safety objections to the placing on the market of the traditional food.
Taking into account recent EFSA’s publications on risk profile related to consumption of insects as food (2015) and for the house cricket (2018), which both highlighted the lack of data related to possible hazards when insects are used as food, this procedure is probably not suited for fast-track placing on the market of edible insects.
Moreover, the choice for this fast-track procedure would also prevent the applicant from requesting data protection, a possibility the standard authorization procedure normally offers.
To date, five novel foods applications regarding insects have been submitted to the European Commission: two species of crickets (acheta domesticus and gryllodes sigillatus), two types of mealworm (tenebrio molitor) and mealworm larvae products (alphitobius diaperinus).
None of EFSA’s scientific opinions on their safety have been published yet. However, the first two draft scientific opinions were discussed in early October 2018: it was considered that additional information from the applicant was needed to proceed with the scientific assessment of applications regarding dried mealworm.
In this context, even if the legal gap on their status was filled, insects will not be part of our European diet in the coming months.
This article was first published in FoodNavigator on November 7, 2018.