Not only claims made for food (for humans) but also for feed (for animals) are subject to strict legal restrictions, particularly with regard to health claims. Of particular importance is Regulation (EC) No. 767/2009 on the placing on the market and use of feed (“EU Feed Regulation”). In this article we give an overview of the essential provisions of the EU Feed Regulation, which are often the subject of warnings.
I. What does the EU Feed Regulation regulate?
Regulation (EC) No. 767/2009 on the placing on the market and use of feed (“EU Feed Regulation”) regulates the framework for:
the placing on the market, the information and advertising and the use
of feed, so that there is a uniform legal framework for this throughout the European Union. On the one hand, the strict provisions of the EU Feed Regulation are designed to ensure the safety of feed as far as possible. Furthermore, this in turn aims to protect the public health of the people who consume the meat of the animals fed with the feed.
Important for manufacturers and traders of feed: The EU Feed Regulation also regulates how the users of feed on the one hand and the affected consumers on the other receive information in an appropriate manner:
how feed products must be labelled, how (advertising) information on feed products may be designed and what mandatory information must be contained therein.
II. Who is responsible for the labeling of feed?
According to Art. 12 Para. 2 of the EU Feed Regulation, the feed company responsible for the (correct) labeling of feed products is the one who
places feed on the market for the first time or under whose name or company name the feed product is marketed.
Thus, the manufacturer of a feed is primarily responsible for putting the feed on the market for the first time after production. The same applies to companies that have the product manufactured by another company, but then market the product under their own name or brand.
The responsible feed business operators have a legal obligation to ensure that:
their feed products are labeled at all, the information provided as part of the labeling is correct in terms of content and the information corresponds to the legal requirements.
III. What information about feed is inadmissible?
Under no circumstances may the labeling and presentation of feed products mislead the user (Art. 11 Para. 1 EU Feed Regulation).
Compared to the general ban on misleading advertising according to §§ 5, 5a of the law against unfair competition (UWG), Art. 11 Para. 1 EU Feed Regulation regulates a more specific and therefore overriding provision that expressly concerns the following information:
Intended use of the feed, characteristics of the feed, such as the type of manufacturing or extraction process, the nature and composition, the quantity, the shelf life or the animal species and animal categories for which the feed is intended, effects or properties that the feed actually does does not have (alleged) special properties, although all comparable feeds have the same properties.
In addition, the EU Feed Regulation contains further, partly detailed specifications regarding various feed products and product categories, which labeling and information on feed products must be provided by those responsible for them.
IV. Are statements on special ingredients of feed permitted?
It is not fundamentally prohibited to refer in a special way to certain special ingredients of the feed in question when labeling or packaging feed products.
According to Art. 13 Para. 1 of the EU Feed Regulation, the labeling and presentation of feed may only indicate the presence or absence of:
a specific (ingredient) substance in the respective feed, a specific nutritional characteristic or a specific process or a function associated with the aspects mentioned
indicate if:
the respective information is objective, ie is understandable for the addressee group of users of the feed product, can be verified by the competent authorities, and this information – at the request of the competent authority – is substantiated by a scientific justification.
Important note: The scientific justification can be given either:
through publicly accessible scientific evidence, such as the results of studies published in scientific publications and databases or through – documented and therefore verifiable – in-house research work of the company concerned itself, i.e. the respective manufacturer of the feed product.
The scientific justification must already be available at the time when the feed product in question is placed on the market. If the competent authority has doubts about the scientific justification, the labeling and presentation with the information mentioned is considered misleading and therefore inadmissible. After a legally regulated procedure, possibly also involving the EU Commission, it must then be finally clarified whether the scientific justification is sufficient to maintain the information provided.
V. Are health claims on feed permitted?
It is also fundamentally not prohibited to provide information on the labeling and presentation of feed products about:
optimizing the diet of the animal in question, supporting the animal’s physiological needs, or securing the animal’s physiological needs
close. However, such disclosures must meet certain statutory requirements in order to be acceptable.
Accordingly, information on the labeling and presentation of feed products is not permitted, according to which:
the feed can prevent, treat or cure a disease, unless there is an exceptional case that is expressly regulated by law – otherwise more rarely – or according to which the feed in question serves a special nutritional purpose or has other special characteristics than the feeds that are are expressly listed in a legally regulated directory (see Art. 9 EU Feed Regulation).
In other words: Health-related claims on feed are generally prohibited! In many cases, it is also not permitted to state that feedstuffs can be used to achieve special nutritional purposes in animals.
The list is included in Regulation (EU) 2020/354 on the compilation of a list of intended uses of feed for particular nutritional purposes and can here be viewed.
VI. Who has to prove the correctness of the information?
According to Art. 13 Para. 1 of the EU Feed Regulation, the obligation to prove that a feed has a specific function falls on the person responsible who uses this information for the labeling or presentation of his feed product.
At the request of the competent authority, the company concerned must provide the scientific justification for the claim. This can be done through an independent scientific publication or through documents from a study conducted by the company itself according to scientific standards.
VII. Which examples of information on feed products are problematic?
Information on feed products or in advertising such as
“Dog stomach happiness protects against acidification of the stomach and thus prevents inflammation of the gastric mucosa”
“Dog Stomach Happiness detoxifies your dog’s stomach through the use of clay.”
refer to diseases and their prevention and are therefore inadmissible according to Art. 13 Para. 3 of the EU Feed Regulation.
But even the product name “Hundemagenglück” could possibly be understood as a health-promoting claim, so that it could be considered inadmissible.
VIII. What are the consequences of violations of the EU Feed Regulation?
In addition to measures by the responsible monitoring authorities, such as fines, companies that label or open their feed products contrary to the specifications of the EU Feed Regulation face warnings.
Violations of individual provisions of the EU Feed Regulation can be considered violations of market conduct regulations iSd § 3a UWG and subsequently lead to injunctive relief according to § 8 para. 1 UWG, which is about
can be asserted. In our practice we see such warnings again and again, which are associated with not only inconsiderable effort and costs.
IX. Conclusion
The EU Feed Regulation (EG) No. 767/2009 contains important specifications for the labeling and presentation of feed products, which can also affect the information in sales (e.g. online trade).
Sellers must be particularly careful when animal feed is attributed health-promoting or disease-relieving properties, which violates the EU Feed Regulation and is therefore not permitted. In such cases, there is a risk of official measures and warnings.
We provide further information on the legal requirements for the distribution of animal feed in this guide.
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