Your product cannot be sold in the EU. Does that mean it has to be destroyed?

The export of non-compliant food products to EU third countries is a legal alternative. Very few companies know about it when the authorities order a product to be destroyed. It exists, and in many cases it completely changes the outcome of a regulatory proceeding.

Article 12 of Regulation (EC) 178/2002 sets out this possibility. Non-compliant food products under EU law can be exported to a third country under specific conditions. Moreover, knowing how to use it at the right moment can make all the difference.

The case of the company and its export of non-compliant food products to Mexico is a concrete example of how this works in practice.

What happened to the company’s products

In February 2026, the Directorate General of Public Health of the Community of Madrid inspected the company’s facilities. The reason was a complaint from a competitor regarding the composition and labelling of their Té Matcha Premium line. After laboratory analysis revealed a minor non-permitted ingredient under EU law, the result was the precautionary immobilisation of the product.

The company responded quickly: it voluntarily blocked online sales, withdrew the product from its physical stores, arranged for the suspension of sales on Amazon, and commissioned external analysis from an independent laboratory — all before the authorities took any further action.

Nevertheless, in April 2026 the final decision arrived: definitive withdrawal from the market and destruction of the immobilised products. For the company, given the volume of products blocked, this meant losing thousands of units and a significant financial investment in stock.

Article 12 of Regulation (EC) 178/2002 and the export of non-compliant food products from the EU

In fact, this is the provision that opened the door to a different outcome. Article 12 of Regulation (EC) 178/2002 establishes that food that does not comply with EU legislation may be exported to a third country if that country expressly authorises it and if its legislation permits the product to be marketed, even if it does not meet European requirements.

AESAN (the Spanish food safety authority) also published an interpretive note on how to act in these cases under this article. This is not a legal loophole. It is an express provision of the EU’s General Food Law Regulation, designed precisely for situations like this one.

The Subdirección General de Sanidad Exterior (General Directorate of External Health) of the Ministry of Health has developed a specific procedure for this route: the Authorisation Procedure for the Manufacture/Export of Products Not Permitted in the European Union for Export to Third Countries (Version 0, June 2025). Its very existence confirms that destruction is not the only option available under the legal framework.

The strategy applied: legal and regulatory teams working in parallel

When the case reached our team, however, the first question we asked was not whether the product was compliant — it was not under EU law, and that was not in dispute — but whether destruction was the only possible response, or whether there was a legally sound alternative.

On the legal side, our team led by Luis Rodríguez submitted a brief prior to the final decision. It stated that these products could lawfully be marketed in Mexico. Following the final destruction order, they filed an administrative appeal (recurso de alzada) arguing disproportionality: where a route exists that guarantees the same result — the definitive removal of the product from the European market — ordering destruction goes beyond what is strictly necessary.

Moreover, our technical team at LegaleGo Regulatory, led by Noelia Salmerón, prepared a technical report. It analysed the product ingredients and their compliance with the Mexican Additives Agreement (DOF 16/07/2012) and Mexican food law. The objective was concrete: to demonstrate that The company’s products met the requirements for commercialisation in that country before filing the appeal — as an established fact, not a hypothesis.

That report was decisive. The Directorate General of Public Health of Madrid expressly relied on it in its decision, noting that the company already met the substantive requirements of the export procedure and that destruction was not the only option available.

Consequently, on 10 July 2026, the Deputy Minister of Health of the Community of Madrid upheld the appeal and suspended the destruction order, subject to obtaining the relevant authorisations from the Subdirección General de Sanidad Exterior and express accreditation from COFEPRIS, the Mexican health authority.

What is required for the export of non-compliant food products EU to work

What this case made clear is that the key question is not only whether the product is compliant, but also whether there is an alternative to the measure imposed by the authorities. In The company’s case, there was. Controlled re-export guaranteed, just as effectively as destruction, the definitive and irreversible removal of the product from the EU customs territory. The principle of proportionality requires that when such an alternative exists, it should be used.

But it is not automatic. The technical and regulatory report was essential: without demonstrating that the product met Mexican standards before filing the appeal, the strategy had no real basis. The authorities needed to know that export was viable — not merely theoretically possible.

To pursue this route, companies must demonstrate to the authorities that:

• The product complies with the legislation of the importing country.
• The health authorities of that country have given their express agreement after being informed of the reasons for the EU non-compliance.
• A favourable decision has been obtained from the Ministry of Health through the Subdirección General de Sanidad Exterior.

In the case of Mexico, the competent authority is COFEPRIS, the Federal Commission for Protection against Health Risks. The process is not immediate. But when the volume of product is significant, it may mean recovering an investment that would otherwise be lost entirely.

A matter of timing

There is one detail that cannot be overlooked: the window to act is short. In the real case, the export strategy was proposed within the timeframe granted by the decision to justify the final destination of the products. Had that deadline passed without action, the options would have been significantly reduced.

The legal basis exists. A defined procedure is in place. The export of non-compliant food products under EU rules as an alternative to destruction is real — but knowing about it in time, before the decision becomes final, is what determines whether it can be used.

If your company is facing a product immobilisation or destruction order, or you want to proactively review the regulatory risks of your products in the EU and export markets, our team at LegaleGo Nutrition Legal Services can help you.

Frequently asked questions

What does Article 12 of Regulation (EC) 178/2002 establish?

It establishes that food products that do not comply with EU legislation may be exported to third countries if the importing country expressly authorises it and if its legislation permits the commercialisation of the product, even if it does not meet European requirements. It is the legal basis for the export of non-compliant food products to third countries outside the EU.

What is the Sanidad Exterior Authorisation Procedure for the export of non-permitted products?

It is a procedure developed by the Subdirección General de Sanidad Exterior of the Ministry of Health (Version 0, June 2025) that regulates how the export of food products not compliant with EU legislation to third countries may be processed, under specific conditions and with the corresponding authorisations.

What is COFEPRIS?

COFEPRIS is the Federal Commission for Protection against Health Risks, the competent health authority in Mexico. Its express agreement is one of the requirements for exporting to Mexico products that do not comply with EU legislation.

Does this alternative apply only to Mexico?

No. Article 12 of Regulation (EC) 178/2002 applies to any third country, provided that its legislation permits the commercialisation of the product and its authorities give express agreement. Each case requires individual analysis.

How quickly do you need to act?

It is essential to act before the destruction order becomes final. Once the order is confirmed without an alternative having been proposed, the options are significantly reduced. In the real case, the strategy was proposed within the timeframe granted to justify the final destination of the products.