14 August, 2017

Management’s responsibility for food alert

Food alert network systems have been established as efficient and rapid mechanisms for the transmission of information between competent authorities. Through these systems, a location and withdrawal of food products from the market that may pose a risk to the health of consumers can be carried out.

These systems are currently implemented nationwide through the Coordinated Rapid Information Exchange System (SCIRI), community based on the Rapid Alert System for Food and Feed (RASFF) and international (INFOSAN). The main feature of these systems is that they allow selective removal of those affected products. 

SCIRI is a system designed in the form of a network, which allows constant monitoring against any risk or incidence that, related to food, may affect the health of consumers. To generate an alert through this system, it is necessary that the country in question or EU Member State has information regarding the existence of a serious risk, direct or indirect, for human health derived from food or feed . The alert is generated by notifying the country to the European Commission.

The notification of the food alert must be accompanied by a detailed explanation of the reasons for the action taken by the competent authorities of the Member State where it was issued. The Spanish Agency for Consumer Affairs, Food Safety and Nutrition (AECOSAN) is the centralizing and coordinating point of the SCIRI. Thus, Article 30.5 of the Statutes of AECOSAN attributes to it, through its Executive Director, the power to “trigger the implementation of the National Food Alert Network” or SCIRI, either on its own initiative, of the Communities Autonomous or of the European Commission. On May 30, 2006, the Institutional Commission of AECOSAN approved the Protocol of action of SCIRI ex Article 2.2.n) of Law 11/2001 whose management of SCIRI is carried out at three levels: food alert, information and rejection.

Alerts are all notifications related to food in which a risk is detected for the consumer, whether serious and immediate or not, but in which the product involved is originally or has been distributed in the national territory, so it is required immediate action by the competent authorities.

The objective of the transmission of the alerts is the immediate action to remove the affected products, destruction or re-shipment or employment for other purposes. The legal basis for the operation of this system is Article 50 of Regulation (EC) 178/2002 of the European Parliament and of the Council of January 28, 2002, which establishes the general principles and requirements of the food legislation, the European Food Safety Authority is created and procedures related to food safety and Commission Regulation (EU) 16/2011 of 10 January 2011 are established, establishing the Implementation of the Rapid Alert System for Food Products and Animal Food.

In addition to the AECOSAN, the SCIRI is the national coordinator, the competent Authorities in the field of food safety of the Autonomous Communities and the Autonomous Cities of Ceuta and Melilla, the Ministry of Defense (through the Inspection General of Defense Health), the European Commission (through the General Directorate SANTE) and the General Subdirectorate of External Health, General Directorate of Health, Quality and Innovation, of the Ministry of Health, Social Services and Equality, for notifications of risks related to the importation of food products from third countries.

In addition, another series of organizations / organizations participate through specific collaboration agreements within the framework of the SCIRI. It is important, in any case, that the health authorities when conducting a health alert on a product, are fully safe and thus confirm that there could be an irrigation for the consumer. A food alert can cause, and so it happens in practice, major damages to the company that distributes, manufactures or stores that product. If this alert is not confirmed, it is verified that there is no risk for consumption or it is perpetuated in time without justified cause, it may cause a patrimonial responsibility of the Administration and be obliged to indemnify the company for the damages and losses caused. This happened in a case in which a food alert was generated due to the appearance of two cases of botulism due to the alleged consumption of a well-known infusion.

These cases of botulism were associated with this infusion without, at any time, proving that there was a relationship between the product and the cases. The only explanation that AECOSAN gave to maintain the food alert for almost a year was based on bibliography and on the relationship of the consumption of the product with the intervention of several hospitalized consumers who apparently had ingested the same batches. The company, meanwhile, credited with clinical reports that there was no relationship between the cases and the product. But even so, the Administration maintained the health alert.

The National Court in its Judgment of 2014 determined after analyzing this case, that there was no reason to maintain this food alert and, therefore, the company should be compensated for all the damages caused.  It was stated in this case that the company should be compensated at 1,096,654.13 euros for the health alert in accordance with the following amounts: 1. As for the expenses of withdrawal, storage and destruction of the product, 8,237.36 euros 2. As for the value of the cost of the destroyed product, 17,214.41 euros. 3. Regarding shipping and communications expenses, 23,262.57 euros 4. Regarding personnel expenses, 1,036,167.65 euros. 5th for travel expenses, 1,610.04 euros. 6. As for Other expenses, for legal and financial advice, 6,981.25 euros are recognized and as for those incurred in the expert report of damages, 3,180, 85 euros.

One of our added values as food safety consultancy is that in addition to technicians, we are lawyers specialized in administrative law and more specifically, in food law. If you are faced with a threat of alert or an immobilization or unfair or disproportionate action by the health authority, we can help you recover all the damages caused to you through a claim of patrimonial responsibility for normal or abnormal operation of the Administration.