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Not Marketable But Safe Food: No Requirement for Market Withdrawal

A Short Analysis of Two Separate Legal Concepts and Their Essential Differences

Moritz Hagenmeyer, Tobias Teufer

It is sometimes assumed that a food which is not marketable by law must also be withdrawn from the market. However, Art. 19 of Regulation (EC) No. 178/2002 requires a market withdrawal only for unsafe food. Is a food which is not marketable then automatically also unsafe food? This short analysis shall present the two legal concepts of ‘marketability’ on the one hand and ‘food safety’ on the other in order to answer the question and to help differentiate between not marketable and unsafe food. Is it justified to equate a lack of marketability with a classification as ‘unsafe’? Or are there essential differences between the two concepts so that there can be food which is not marketable but safe? The answers to these questions are especially important with respect to the legal consequences, in particular the issue whether it is necessary to withdraw a food from the market.

Prof. Dr. Moritz Hagenmeyer and Dr. Tobias Teufer are partners of the Hamburg food law firm KROHN Rechtsanwälte and lecture food law, the former at the Hamburg School of Food Science (Hamburg University) and Leibniz University Hanover, the latter at Hamburg University of Applied Sciences. This opinion was commissioned by Lebensmittelverband Deutschland e.V., Berlin.


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