Annex II, Chapter Va of Regulation (EC) No 852/2004 — Redistribution of food

Rationale and origin

Chapter Va was inserted into Annex II by Regulation (EU) 2021/382, applicable from 24 March 2021 Article 1 of Regulation (EU) 2021/382. Its purpose is to give legal certainty to food donation: before the amendment, operators and charities acted in a framework in which redistributing food close to its date, or already past its date of minimum durability, had no express basis in hygiene law, leading to excessive caution and waste. The Chapter codifies the conditions under which redistribution is allowed, consistently with the Union's objective of reducing food waste and with the Commission's guidelines on food donation (Notice 2020/C 199/01, see Sources). It belongs to the same amending package that introduced the food safety culture obligation: the shared origin is noted on the updates page.

The Chapter does not create a derogation from food safety; it reaffirms it. Redistribution is permitted only after a check that the food is not injurious to health and is fit for human consumption under the general standard of Article 14 of Regulation (EC) No 178/2002 Article 14(2) of Regulation (EC) No 178/2002 — the same standard that applies to ordinary placing on the market.

Who is bound

The addressees are the food business operators that intend to redistribute food for donation: large retailers, manufacturers, catering and wholesalers supplying food banks and charities. The Chapter also applies to operators that "handle" the redistributed food (point 2): a receiving organisation that handles food is itself an FBO and takes on the related assessment duties Annex II, Chapter V bis, point 2 of Regulation (EC) No 852/2004. Responsibility is not transferred by the mere fact of donation: each FBO in the chain answers for the stage under its control Article 17(1) of Regulation (EC) No 178/2002.

What the Chapter requires: the date regime

Point 1 anchors redistribution to the date-marking rules of Regulation (EU) No 1169/2011 Annex II, Chapter V bis, point 1 of Regulation (EC) No 852/2004. Three regimes:

The distinction between the 'use by' date and the date of minimum durability is the heart of the provision. The 'use by' date applies to highly perishable food from a microbiological standpoint: once passed, the food is deemed to present a risk to health and cannot be redistributed Article 24 of Regulation (EU) No 1169/2011. The date of minimum durability indicates the date up to which the food retains its quality characteristics: beyond it the food is not for that reason harmful and remains marketable and donatable, provided the safety assessment is positive Article 2(2) of Regulation (EU) No 1169/2011. In our view this is where the practical value of the Chapter lies: it expressly legitimises the donation of products past the 'best before' date, which is the largest share of recoverable surplus.

Point 2: the safety assessment

An operator handling food to be redistributed must assess whether it is not injurious to health and is fit for human consumption, taking into account at least the following Annex II, Chapter V bis, point 2 of Regulation (EC) No 852/2004: the date of minimum durability or the 'use by' date, ensuring sufficient remaining shelf-life to allow safe redistribution and use by the final consumer; the integrity of the packaging, when applicable; the proper storage and transport conditions, including applicable temperature requirements; the date of freezing in accordance with Section IV of Annex II to Regulation (EC) No 853/2004, when applicable Annex II of Regulation (EC) No 853/2004; the organoleptic conditions; and the assurance of traceability under Commission Implementing Regulation (EU) No 931/2011, for products of animal origin. The list is a minimum ("at least"): the assessment complements, and does not replace, the HACCP-based procedures Article 5(1) of Regulation (EC) No 852/2004.

The "sufficient remaining shelf-life" requirement means the donation must not take place at the very last usable moment: time must remain for the food to be transported, distributed and consumed safely. Compliance with storage and transport temperatures refers to the requirements on transport and on foodstuffs, and presupposes maintenance of the cold chain.

Coordination with other rules

With Regulation (EC) No 178/2002: redistribution remains subject to the prohibition on placing unsafe food on the market Article 14(1) of Regulation (EC) No 178/2002, to operator responsibility Article 17(1) of Regulation (EC) No 178/2002 and to traceability obligations Article 18 of Regulation (EC) No 178/2002. With Regulation (EU) No 1169/2011: the rules on 'use by' and 'best before' dates are the technical precondition of the whole Chapter Article 24 of Regulation (EU) No 1169/2011. With Regulation (EC) No 853/2004: the date of freezing of products of animal origin is an element of the assessment Annex II of Regulation (EC) No 853/2004. With Article 5: redistribution is a stage of the process to be covered by the hazard analysis. Traceability of products of animal origin follows, as the text recalls, Commission Implementing Regulation (EU) No 931/2011.

Application and interpretive issues

Past 'best before' does not mean 'without limits'. Donation of products past the date of minimum durability is allowed, but remains subject to the point 2 assessment and to the fitness-for-consumption judgment Annex II, Chapter V bis, point 2 of Regulation (EC) No 852/2004: a product with compromised packaging or organoleptic deterioration is not redistributable merely because it bears a 'best before' rather than a 'use by' date.

Relationship with national law. Several Member States have rules facilitating donation. In Italy, Law No 166 of 19 August 2016 (the "Gadda law") governs the donation and distribution of food for solidarity purposes and expressly allows the free transfer of products past their date of minimum durability; Chapter Va and the national law operate together. The national picture is in the country pages.

Penalties

The Chapter lays down no penalties of its own. The penalties for placing unsafe food on the market and for breaching general hygiene obligations remain applicable and are for the Member States Article 17(2) of Regulation (EC) No 178/2002; in Italy, breaches of the Annex II requirements of Regulation 852/2004 are sanctioned by Legislative Decree No 193/2007 Article 6 of Italian Legislative Decree No 193/2007. Redistribution compliant with Chapter Va is not itself a source of additional liability: liability arises from breach of the safety obligations, not from the donation as such.

As at the date of this update there is no Court of Justice of the European Union ruling dealing specifically with Chapter Va of Annex II to Regulation (EC) No 852/2004, a recently inserted provision (24 March 2021). Of systemic relevance is the principle, established by the case law on Article 14 of Regulation (EC) No 178/2002, that the notion of "unsafe" food is objective and independent of the commercial or charitable destination Article 14(2) of Regulation (EC) No 178/2002.

The Chapter is directly applicable from 24 March 2021 and requires no transposition. Member States act on penalties Article 17(2) of Regulation (EC) No 178/2002 and through national rules favouring donation. For Italy, Law No 166/2016 and the penalties of Legislative Decree No 193/2007 are relevant Article 6 of Italian Legislative Decree No 193/2007; the picture is in the country pages and the chronological placement in the updates.