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| Conference Room Document 41 English only | |
second fao/who global forum of food safety regulators
Bangkok, Thailand, 12-14 October 2004
(Prepared by Germany)
Protecting people from health risks, deceit, delusion and economic trickery is the central tasks of official food control. In doing so, food control authorities also indirectly protect honestly acting food producers. Food control authorities are organized so as to best possibly meet these targets.
Under the Basic Law (Constitution) of the Federal Republic of Germany, the state's sovereign tasks are divided up between the Federal Government ('Bund', or 'Federation') and the federal states ('Länder'). The legislative power over food, tobacco and cosmetic products as well as other commodities (in particular, clothes, toys, and materials intended for contact with food products) lies with the Federal Government, while anything pertaining to control of the products mentioned lies with the federal states. The states carry out federal laws in their own competence, according to Article 83 of the Basic Law.
Official food control is based on a great many of laws of the German Federal Government/ Parliament and of the European Community (EC). Following is a list of the most important regulations in the field:
The Food and Commodities Act (Lebensmittel- und Bedarfsgegenständegesetz, LMBG) contains many bans and regulations to protect health and to protect consumers from deceit.
European Community law has priority over national law in the Member States. This is not only true for primary Community law, such as the Treaties of Rome and their successors (Maastricht, Amsterdam) but also for secondary law, as laid down in EU Regulations, which have direct effect in Member States, and EU Directives and Decisions which must be implemented in national law. Within the European Commission, the Directorate-General for Health and Consumer Protection (DG-SANCO) is in charge of food law.
Directive 89/397/EEC is reflected in the Food and Commodities Act (LMBG) of the Federal Republic of Germany. This Act, and national food law in general, is currently under revision to make it compatible with the EU General Food Law Regulation 178/2002. The result of revision is a food and feed codex which has dropped old provisions of LMBG which have become superfluous as a result of EU Regulations, while other provisions outside LMBG will be included.
The Federal Ministry of Consumer Protection, Food and Agriculture is in charge of policy issues relating to food, cosmetics, commodities and tobacco products. It represents the Federal Republic in negotiations at EU level, in particular with the Directorate-General for Health, on legislative projects in these political fields.
The Federal Institute of Risk Evaluation (Bundesinstitut für Risikobewertung, BfR) and the Federal Office of Consumer Protection and Food Safety (Bundesamt für Verbraucherschutz und Lebensmittelsicherheit, BVL) are federal authorities subordinate to the Federal Ministry of Consumer Protection, Food and Agriculture. They have been set up to separate risk evaluation (competence of BfR) from risk management (BVL). BVL also serves as a co-ordinator between the federal states, the Federal Government and the European Union, and supports the federal states in standardizing enforcement of official food control.
As we have said before, enforcement of the law in the field of official food control is the competence of the federal states. Each of the 16 states has a parliament and a government with ministries. It is the responsibility of the states to organize the authorities enforcing the law and define their competencies. In this respect, there are considerable differences between the states, because the states themselves strongly differ in structure. There are states of very large area, such as Bavaria, on the one hand, and city-states, such as Hamburg and Bremen, on the other.
The supreme food control authority of a state is its ministry in charge of that field, or, in the city-states of Berlin, Hamburg and Bremen, the respective senatorial body. The state's supreme food control authority, that is, the ministry concerned with that field, has the technical supervision over all food control bodies in that state. Those states with a large area in particular, have a medium hierarchic level between local and district offices on the one hand, and the supreme authority on the other. These are called government presidiums, or regional governments. Their task is both to survey and bundle lower-level authorities.
Those bodies actually carrying out official food and veterinary controls on the local level are district and municipal authorities (in districts, towns, and city-states). These offices – some being organized and funded by the federal states, some by the communities where they are situated – are entrusted with enforcement of control on the local level. They are a direct contact for persons who have complaints, or seek information and advice, in the context of production, handling or marketing of food, tobacco, and cosmetic products and commodities. These offices employ official veterinarians and food control officers. Their tasks also include inspections concerning the production and marketing of food at all levels, and official sampling. To do this work, officers have certain powers, such as
EU inspectors have also a right to enter any food production establishment if they are accompanied by national inspectors. Police have the same powers if there is danger in delay. If there is any reason for complaint in connection with inspections or official sampling, local food and veterinary control offices are also responsible for pursuing such cases and punishing offences, for instance by fines. If a criminal offence is suspected, the case is handed over to the public prosecutor. Less severe means of enforcing food law include special instructions and admonition by local food control officers.
In 1992, Germany's federal states agreed on a minimum frequency of inspections in food establishments in a "Resolution of the Federal Council (Bundesrat) on EU Council Directive 89/397/EEC on the official control of foodstuffs (Federal Council Print Matter 150/92)". The frequency of inspections is differentiated according to whether firms produce:
The frequency of inspections depends on these categories and the respective level of production.
Official food controls – both on-site inspections of establishments and sampling – can only be carried out at random. Every producer and distributor has the legal duty to produce and handle food products and commodities in a responsible and legal manner.
The 1992 Resolution of the Federal Council also provides for the frequency of official sampling. It says that an annual five official food samples shall be drawn, analyzed and evaluated per thousand inhabitants. Samples shall be drawn to equal portions at producing and processing establishments on the one hand and sales and food service establishments on the other.
The 16 federal states have special investigation offices with laboratories in charge of the analysis and legal evaluation of food, tobacco and cosmetic products and commodities. While most of the states have bundled these investigations in few state-run offices and laboratories, some have still community-based offices and laboratories. These investigation offices employ food chemists, veterinarians and human medical doctors who analyze the samples drawn by enforcement officers of districts, towns and city districts. If there is reason for complaint, the analytical experts write their opinions, which is the basis for enforcement bodies to act and take appropriate measures (issuing instructions, an admonition, fining offences, or bringing a criminal case against an offender).
The following table lists the frequency of inspections by enforcement officers in various establishments.
Highly perishable foodstuffs or food for babies and infants |
Food of animal, plant or mixed origin which can stay under certain conditions |
More stable food products such as raw plant products | |
Original producer |
Inspection during sampling at producer's establishment | ||
Producer |
monthly |
eight times down to four times a year |
once to twice a year |
Distributors and wholesalers |
daily to monthly |
four times a year | |
Craftsmen's trade, direct marketing firms, retailers |
four times a year |
four times down to twice a year | |
Large canteens, caterers and food suppliers |
six times down to three times a year | ||
(Smaller) canteens, restaurants, snack bars |
twice a year | ||
The consequence of the distribution of sovereign tasks between the Federal Government ('Bund') and the 16 federal states, as it is stipulated in the German Constitution, is a very complicated system of food surveillance. While this system functioned without noticeable problems in the first decades after the foundation of the Federal Republic of Germany, problems have increasingly appeared since the 1980-ies. Reasons must be sought, on the one hand, in a shift of competencies from the national to the EU level. Communication between 16 federal states, the German Federal Government and the EU is not without problems. On the other hand, the increasing scientific and technical level of food control itself brings more difficulties, in particular for the smaller federal states. This was one of the reasons for which the Federal Office of Consumer Protection and Food Safety (BVL) was set up some two years ago – to advance co-operation and communication between the Federal Government, the federal states and the European Union. As a means to improve co-operation and standardize food control enforcement in the federal states, the BVL co-ordinates joint monitoring and food control programmes, for instance, a national food monitoring scheme and a national residue control plan. Under the latter, animals serving as food source are monitored for substances with pharmacological effect. Working out general administrative procedures is also a federal task which has been assigned to BVL.