EU Requirement to List Ingredients of Animal Feed Stuffs - English High Court Suspends Effect of UK Regulations Implementing EU Directive

Originally published June 2004

INTRODUCTION

In his recent judgment, delivered on 6 October 2003, Mr Justice Davis took the unprecedented step by an English judge of agreeing to suspend the effects of particular provisions (regulation 6 and parts of regulation 10(c)) of The Feeding Stuffs, the Feeding Stuffs (sample and analysis) and the Feeding Stuffs (Enforcement) (Amendment) (England) Regulations 2003, SI 2003/1553 (the "English Regulations")1.

He decided that certain provisions of the English Regulations, requiring animal feed manufacturers to disclose on labels the specific constituent elements of their brand of feed stuffs - including (at the request of customers) exact percentages - was likely to cause "serious and irreparable" damage to those manufacturers' businesses. His decision was prompted by the obvious potential for competitors to benefit from receipt of this valuable information (essentially the confidential feed recipes) at the expense of the manufacturers who had invested a great deal of their resources researching and developing their products in order to market them - ultimately hoping to achieve a commercial return on their investment.

PUBLIC HEALTH PROTECTION

The judge was not persuaded that the "ingredients listing" requirements were necessary to protect public health in the wake of the BSE crisis and the dioxin crisis in Belgium (involving the sale of contaminated cooking oils) - as alluded to in the preamble to the Directive2. Further, despite the fact that the Directive had been adopted under Article 152(4) of the EC Treaty3, the judge expressed his "serious doubts" as to whether public health and safety was in fact advanced at all by the ingredients listing provisions.

In this connection, the judge cited the following statement Commissioner Byrne made to the European Parliament:

"The most important fact is the presence of an ingredient in the compound feeding stuff, not necessarily the exact quantities. These exact quantities have a commercial value but are not linked to health protection."

And, a little further on:

"I believe I am correct in saying that this issue of public health and food safety is related to the presence, rather than the quantity, of what is contained in the compound feeding stuff."

Having regard to his "serious doubts", the judge was persuaded that an arguable case had been made by the applicant companies calling into question the validity of the Directive. In the circumstances, he accepted that a reference to the European Court of Justice ("ECJ") was required, to seek a declaration from it on the...