29 September, 2016

Sports food supplements, is the fee for the notification legal?

 

For sports food supplements, the fee for notification is not always legal.

Sports food supplements are governed by Royal Decree 1487/2009, of September 26, concerning food supplements.

According to this standard, notification of placing on the market of food supplements prior to or simultaneous to their commercialization is mandatory.

This obligation does not only imply the completion of a form in which data on the company responsible for the notification of sports nutritional supplements are given.

The label must be provided, and in most cases also the payment of a fee as long as it is contemplated as such by law.

In this sense, in order to demand a fee it is necessary the reference, affectation or particular benefit of the provision of a public service or the performance of an administrative activity.

It is a budget that excludes the possibility that the public entity, with a collection purpose only, configure as public services or administrative activities acts that cannot be qualified as such or simply simulate the existence of the public service.

On the contrary, if this simulation were admitted, and the corresponding charge of the fee, tax nature would be attributed to the amount required. What would be called the “formulary benefit” of the public service or administrative activity would occur. That is, the provocation of the requirement of the rate without the previous realization of the taxable event as it occurs in the present case.

Thus, as defined by Law 8/1989 of April 13 on public rates and prices, the rate is “like taxes whose taxable event consists of the private use or special use of the public domain, the provision of services or the performance of activities under public law that refer, affect or benefit in a particular way to the taxpayer, when the services or activities are not of voluntary request or reception for the taxpayers or are not provided or carried out by the private sector”.

That is why in the case at hand, the taxable event is attributed to the provision of a health service. Thus, the payment of this fee covers the cost of the sanitary service corresponding to the evaluation, study or processing carried out.

The fee for notification of food supplement, therefore, must be included in a standard as a taxable event. Otherwise, this rate would be null and void in accordance with the nature of the public rates. The requirements that must be met for your requirement and the principle of law reserve, likewise, require it.

Once the rate has been established as a rule, the fixing of the amount is subject to the regulation of each Autonomous Community where the company responsible for placing it on the market is established. This is where the notable differences originate.

Thus, we find Autonomous Communities that do not establish a fee for this concept in sports food supplements such as the Basque Country and Asturias. While in others you have to pay a fee of € 210.- for each food supplement notified as is the case with the Autonomous Community of Valencia. In a medium plane is Andalusia with approximately a price of 48.- €. Or the Autonomous Community with the lowest amount of the Canary Islands, with € 2.30 per product.

In the case of companies that do not have a registered office in Spain or import products from a third country, product notifications must be submitted and managed directly to the Spanish Agency for Food Consumption and Safety (AECOSAN). In this case the established rate is 908.73.- €.

Thus, as established in Article 55 of Law 17/2011, of July 5, on Food Security and Nutrition, “the taxable event of the fees constitutes the realization by the competent bodies of the Spanish Agency for Food Safety and Nutrition ( AECOSAN) activities related to registries, dietary products, studies and evaluations and food supplements”.

Finally, it is not only worth noting the differences found in the amounts of the fees. On the one hand, the AECOSAN in its notification procedure of food supplements establishes that when it comes to different flavors of the same product, the form and the rate will be unique for all of them. In this case, as long as the company declares it in its declaration model and attach the different labels of each of the presentations marketed. However, there are some Autonomous Communities that require a different rate and form for each presentation and different flavor.

Thus, after all the above, it is clear how the company’s registered office is the key factor in terms of expenses for notification of products is referred to.