Consumer information according to § 40 para. 1a and no end... - In BAV Newsletter 02/2013

Go back

Jun 14, 2017 - QUALITY INSPECTIONS

Consumer information according to § 40 para. 1a and no end... - In BAV Newsletter 02/2013

§ 40 para 1a of the LFGB has been in force since September 1, 2012, and stipulates an active duty for authorities to provide information in cases of limit value exceedances and repeated violations of regulations aimed at protecting against health hazards, deception, or hygiene violations, with an expected fine of at least 350 euros.

Since its introduction, there have been several court decisions critically assessing the regulations. Primarily, a specific product reference is required, and an indefinite publication of the general hygiene situation in a company is dismissed by the courts.

Additionally, concerns regarding the constitutional compliance of the "certainty" and "proportionality" of the regulations are expressed. Due to a non-uniform catalog of fines and differing administrative practices in the states, as well as the lack of provisions regarding the duration of public information, impairments of fundamental rights are suspected by the courts.

As a result of the court decisions, Baden-Württemberg and Bavaria have now both suspended the application of § 40 para 1a LFGB until further notice and removed existing publications from the internet.

In a recent judgment, the European Court of Justice (ECJ) ruled that Art. 10 of Regulation (EC) No 178/2002 (duty of authorities to provide information on food with health risks) does not exclude national information possibilities, e.g., concerning revolting products with mention of the company. However, the court emphasized the importance of confidentiality obligations in ongoing legal proceedings.

It remains to be seen what impact this decision will have. A change in the regulations of § 40 is likely.