Analysis: “Mealworms for Dinner? The Authorisation of First Insect as Novel Food” by Annalisa Volpato
With Decision 2021/882, the European Commission has for the first time authorised the placing on the market of an insect for human consumption. The Decision concerns in particular a dried yellow mealworm, the larva of the beetle Tenebrio molitor, which can now be included, whole or in part, in biscuits, in legume-based dishes, pasta-based products, or in protein products intended to meet the expenditure of intense muscular effort, especially for sportspeople. This will probably be the first of a number of decisions of this kind since the safety of a batch of insects (or larvae of insects) is currently under evaluation by the European Food Safety Authority, EFSA.
The recent rise of applications for the placing on the market of insects is due to the clarification on the scope of application of the novel food rules brought by Regulation 2015/2283, which entered into force in 2018 and the effects of which are becoming visible now. Overcoming the ambiguity of the previous regime, which caused diverging interpretations as to the possibility to authorise insects for consumption by the different national authorities, the Regulation has sanctioned the inclusion of ‘whole insects and their parts’ in the category of novel food. This means that their placing on the market within the EU is subject to specific authorisation to be obtained – and this is also a significant innovation of the Regulation – from the European Commission. In fact, a natural or legal person who intends to place a novel food on the market needs to submit an application to the Commission, which may request EFSA to give its opinion as to whether the product is liable to have an effect on human health. Following EFSA’s assessment on the safety of the product, its composition and the conditions of its use, the Commission submits a draft decision to the Standing Committee on Plants, Animals, Food and Feed and, in case of positive opinion of the latter, adopts an implementing act authorising the placing on the market of the novel food. The product is thus included in the EU’s list of novel foods, with the conditions of intended use and specific labelling requirements to avoid misleading consumers.
In comparison to the previous regime where the authorisation of a novel food was issued by national authorities, Regulation 2015/2283 has brought a clear centralisation of the procedure in the hands of EU institutions. This, however, does not mean that Member States have no role to play in the authorisation of novel foods. Not only do they remain responsible for the preliminary procedure for the determination of novel food status in case of doubt on its qualification (Article 4), but they are also directly involved in the procedure for the adoption of the relevant implementing decision. The Standing Committee, being a typical comitology committee, is composed of representatives of the Member States who, with a qualified majority of votes, can actually veto the adoption of the act and thus influence the outcome of the procedure.
More complex is the case where the Member States’ representatives cannot reach a qualified majority of votes, neither for nor against the measure (so-called no opinion scenario). In that case, as expressly required by the Regulation, the Commission may either submit an amended version of that act to the same committee, or submit the draft implementing act to the appeal committee for further deliberation. The appeal committee, always composed of Member States’ representatives but in principle of a higher level, may – and often does – end up with the same result, namely, a no-opinion scenario. If so, the Commission has discretion as to whether or not to adopt the draft implementing act. The exercise of that discretion has, however, proven tricky for the Commission in case of controversial decisions such as the authorisations of GMOs or pesticides.
Undeniably, this scenario places the Commission in the uncomfortable position to act in politically sensitive matters without the clear backing of the Member States. As the glyphosate saga showed, it is easy for national governments to strategically abstain from assuming responsibility for these decisions, taking advantage also of the anonymity of the votes expressed in the comitology procedures before their electorate. To prevent this from happening again, the Commission proposed an amendment of the Comitology Regulation which is still under the consideration of a reluctant Council of the EU. Pending this reform of comitology, the upcoming approval of insects for human consumption is likely to open new fronts of confrontation between the two levels. If the new centralised procedure has certainly brought legal certainty and coherence across Member States, it has also paved the way to the temptation to play the ‘blame Brussels’ game for national authorities, as it is already emerging in some national press.
The approval of a novel food inevitably touches a vast array of delicate and conflicting instances – inter alia, innovation and safety in the agri-food sector, sustainability concerns and ethical values – as well as cultural sensibilities and consumers’ perceptions. The growing global population and the consequent food needs require more and more urgent and new sustainable solutions for protein production. Insects as a valuable protein source can facilitate the shift towards a more sustainable food system, able to face the climate and environmental-related challenges considered crucial by the Commission in the Green Deal and the Farm to Fork strategy. On the other hand, food safety concerns and difficulties in consumers’ acceptance of edible insects on their tables are the perfect ingredients for generating strong opposition in the public opinion and the consequent questioning of the decisions adopted by the Commission. Considering the importance of the interests at stake for the future of food and feed in Europe, and for the future of our planet, such decisions are to be adopted on scientifically and politically solid grounds according to the fundamental objectives of EU food safety policy. Certainly, they should not be caught in a specious political game, eventually undermining the legitimacy of all the authorities involved.
Annalisa Volpato is Assistant Professor at Maastricht University and Managing Editor of the Review of European Administrative Law.