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Bonn, 20th June 2006
Micro criteria and minced meat
Dear Colleagues of the Veterinary Issues Group,
dear Mr Mériaux, dear Mr Stella,
During our last meeting of the Veterinary Issues Group on the 14th June 2006 we discussed newly the problems arising from Regulation (EC) No. 2073/2005 in matters of minced meat. We all shared the opinion that a quick solution is necessary and that we cannot accept the absolute meaningless answer of the Commission from 28th February 2006 on UECBV’s petition from 23rd February 2006.
We decided a parallel approach:
- Support of the Danish initiative on a semi-quantitative analysis for Salmonella in order to collect detailed data for EFSA
- Answer on the letter of the Commission taking into account the legal shortcomings of Regulation (EC) No. 2073/2005 and a new petition for either an amendment or an interpretation note
With regard to point 2 please find hereafter, as promised, my proposal for a letter to the Commission. As decided on 14th June 2006 we will put this letter to vote before we ask Mr Mériaux to send it to the Commission.
Thank you for your reply (to UECBV please) as soon as possible. If we do not get an answer from you we take it as confirmation that you agree.
Draft letter of UECBV to the Commission
in matters of minced meat
Microbiological criteria for minced meat designated to be cooked
(your letter from 28th February 2006, SANCO/E2/MH/ca D(2006) 520317)
We refer to the answer of the Commission from 28th February 2006 on our petition from 23rd February 2006 in the above mentioned matter. We regret to say that the answer cannot satisfy, because it doesn’t help the stakeholders to solve the practical problems with the application of Regulation (EC) No. 2073/2005. Please allow us to focus once again on these circumstances:
Salmonella cannot be detected with the necessary certainty during the production process of minced meat. There isn’t an equal dispersion of the Salmonella in the stuff. The meat on the left side of a small consumer-package could contain Salmonella, the right side could be completely free from these bacteria.
Despite these facts Regulation (EC) No. 2073/2005 ordains not only the exclusion of minced meat in which Salmonella were found during the prescribed testing procedures in the production plant (zero-tolerance pursuant to Chapter 1 of Annex I)). It is rather also foreseen that the producers of minced meat have to initiate withdrawals or recalls whenever minced meat containing Salmonella is found on a step of sale following the production(see Article 3 Paragraph 1* and Article 7 Paragraph 2**).
Regulation (EC) No. 2073/2005 stipulates accordingly an absolute interdiction to place fresh minced meat on the market containing Salmonella.
* ‘Food business operators shall ensure that foodstuffs comply with the relevant microbiological criteria set out in Annex I. To this end the food business operators at each stage of food production, processing and distribution, including retail, shall take measures …’
** ‘When testing against food safety criteria set out in Chapter 1 of Annex I provides unsatisfactory results, the product or batch of foodstuffs shall be withdrawn or recalled in accordance with Article 19 of Regulation (EC) No 178/2002.’
With this stipulation Regulation (EC) No. 2073/2005 goes beyond that what can be fulfilled by the producers of minced meat because they can never know whether the negative test results which were performed before delivery are reliable. Under the maxim ultra posse nemo obligatur, which is a basic component of the legal system of the European Union, no one can be obliged to do the impossible (see, to that effect, Case T-402/02 of the Court of the European Communities, August Storck KG versus Office for Harmonisation in the Internal Market, judgement from 10th November 2004, paragraph 96).
Therefore it is legally imperative to grant the producers of minced meat the possibility to limit their liability.
Apart from this legal aspect it is commercially not acceptable to be faced permanently with the risk of withdrawals or recalls although one has done everything as a producer of minced meat to fulfil all requirements of a proper testing. Pursuant to Article 2 of the Treaty on the European Union the Union shall promote economic progress and not hinder it. Public recalls can easily ruin a company by the loss of repute. There are enough examples.
An adequate possibility to solve the aforesaid problems is the designation of the minced meat as ‘to be thoroughly cooked prior to consumption’ with the respected effect that the minced meat can be regarded as safe in the sense of Article 14 of Regulation (EC) No. 178/2002 although eventually containing Salmonella.
Such a solution is acceptable from the view of the producers but fits also the interests of consumer protection: If the consumer follows the clear labelled advice just to eat the minced meat cooked he will be absolutely on the safe side. A minimum of self responsibility not to do the opposite of the producers advice can be expected from each consumer. It is recognised in all legal systems that it is not the task of the state to protect its citizens from each and every risk of life. Otherwise the permission to drive automobiles, driving is quiet risky, couldn’t be justified legally.
Technically we propose either an interpretation note of the Commission or an amendment of Article 7 Paragraph 2 of Regulation (EC) No. 2073/2005.
An interpretation note of the Commission concerning minced meat could have the following content:
Unsatisfactory testing results on a distribution step after the production level don’t lead automatically to a recall or withdrawal pursuant to Article 19 of Regulation (EC) No. 178/2002. This provides that testing on Salmonella had been correctly performed in the production plant and didn’t reveal positive results. Article 7 Paragraph 2 of Regulation (EC) No. 2073/2005 doesn’t block the application of Article 14 of Regulation (EC) No. 178/2002, which allows to consider further circumstances of food safety (apart from micro criteria) before the decision whether a withdrawal or recall is necessary has to be taken. In this sense prepacked minced meat can be regarded as safe although containing Salmonella if the clear labelling ‘to be thoroughly cooked prior to consumption’ is fixed on a package.
If an interpretation note wouldn’t be regarded as possible by the Commission, we would like to propose the following amendment of Article 7 Paragraph 2 of Regulation (EC) No. 2073/2005 first Sentence:
When testing against food safety criteria set out in Chapter 1 of Annex I provides unsatisfactory results and when considering the criteria set out in Article 14 of Regulation (EC) No 178/2002 do not lead to another estimation, the product or batch of foodstuffs shall be withdrawn or recalled in accordance with Article 19 of Regulation (EC) No 178/2002.
Looking forward to hearing from you,
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