A new law meant to fight food waste in Romania came into force
in late May but is now inapplicable, as its provisions are unclear
and application norms have yet to be published.
On 21 May 2017, Law 217/2016 on Food Waste Reduction
entered into force (the "Law"). The Law
aims to reduce food waste by imposing measures on all operators in
the food industry.
The issues
In its current form, the Law has already raised concerns about
its scope as well as the practical measures that operators need to
take in order to comply with it.
For instance, it is not clear which entities must comply with the
Law, as the Law stipulates that it applies to operators in the
agri-food sector without defining who these are. This may raise
more difficulties, since the Law only refers to enterprises (in
terms of applicable sanctions), but does not define them.
In addition, the Law does not provide a definition for products
that are close to expiry. This is important, since a clear
distinction needs to be made between highly perishable products
that can only stay a few days before becoming unsafe and products
with a longer validity.
Another cause for concern is the lack of clear procedures, as food
operators are given no guidelines or instructions on how to
implement the measures in practice. Of course, each operator must
assess its activity on a case-by-case basis and proceed depending
on the products and its specific activity.
All of these issues are meant to be resolved through the
application norms, which were supposed to be drafted by
21 May 2017, but have now been pushed back pending
analysis.
In the beginning of June, the Ministry of Agriculture issued a
statement saying that the legal mechanisms included in the
normative act cannot be applied and that the enforcement of the law
is postponed until further notice.
Outline of the measures imposed
Under the Law food operators must take the following effective
measures:
- Accountability measures for the reduction of food waste in the
entire agri-food chain, from the manufacturing stage to the
marketing stage, and to the final consumer;
- Low-priced sale measures for products close to expiry;
- Transfer measures by donation or sponsorship for products close
to expiry; such transfers shall be made to entities specifically
registered in this respect;
- Measures for the direction of by-products not intended for
human consumption under Regulation (EC) 1774/2002, under certain
conditions, for the disposal of animal by-products;
- Measures for the direction of agri-food products unfit for
human or animal consumption by transformation into compost;
- Measures for the direction of agri-food products unfit for
human or animal consumption for their transformation into
biogas;
- Measures for the direction of by-products left after going through the above stages to an authorised neutralising unit.
The Law gives food operators the opportunity to offer nearly expired products to associations, foundations and social enterprises. It also sets maximum amounts in this respect, namely 3 % + VAT of the purchase price (for food marketers) or of the production price (for food manufacturers or processors). In their turn, associations and foundations may market the offered products at maximum 25 % + VAT of the purchase price (in case they receive the products from food marketers) and at maximum 25 % + VAT of the production price (in case they receive the products from food manufacturers or processors).
Sanctions
Operators who fail to observe the above measures will face fines ranging from RON 1,000 to RON 10,000 (approx. EUR 220 to EUR 2,200). The fines depend on the size of the entity, ie big enterprises will face higher fines.
Conclusions
Although the Law officially came into force on
21 May 2017, its provisions are not clear enough to be
applicable in practice. Moreover, the Ministry of Agriculture and
Rural Development had the legal obligation to enact application
norms for the Law before 21 May 2017. Although the norms
were initially published on the Ministry's website for public
debate, they are now no longer available.
A serious issue that the Law may trigger is so-called parallel
trade caused by the obligations imposed on operators. On the one
hand, operators must donate or sell products close to expiry at a
low price. On the other hand, associations and foundations that
purchase these products at a low price may then market them at
maximum 25 % + VAT of the purchase/production price. Since the
Law sets a maximum value for the latter, there is a risk that the
price may raise competition issues by becoming fixed, thus
affecting operators on a free market.
Obviously the Law will have a major impact on all players in the
agri-food sector. A deeper analysis of the impacts will be required
before the issues (or at least some of them) can be resolved.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
