Select Committee on European Scrutiny Third Report


COM(99) 654

Draft Directive on the control of undesirable substances and products in animal nutrition.

COM(00) 861

Amended draft Directive on undesirable substances and products in animal nutrition.

Legal base: Article 152 EC; co-decision; qualified majority voting
Department: Health
Basis of consideration: (b) SEM of 28 April and Minister's letter of 15 October 2001
Previous Committee Report: (a) HC 23-ix (1999-2000), paragraph 5 (16 February 2000)
(both) HC 28-ix (2000-01), paragraph 3 (21 March 2001)
Agreed in Council: 19-20 June 2001
Committee's assessment: (Both) Politically important
Committee's decision: (Both) Not cleared; further information requested


2.1  Council Directive 1999/29/EC provides for the control of undesirable substances and products (contaminants) in animal feeding stuffs. In particular, it sets maximum permitted levels (MPLs) for a range of contaminants, including heavy metals, nitrites, aflatoxin and certain pesticides. Although an official text was not at that stage available, our predecessors were informed in an Explanatory Memorandum of 2 February 2000 from the then Minister that the Commission had proposed a number of amendments to the Directive (document (a)). The effect of these would be as follows:

    —  at present, approved manufacturers may handle material where it is above MPLs, and blend it down so that the finished feed MPLs are observed: this derogation would be removed, so that all feed materials put into circulation would have to observe the MPLs in the Directive;

    —  a derogation under which Member States do not have to apply MPLs to fodder used on farms would be removed;

    —  a provision whereby operators must inform the Member State authorities when feed materials or compound feeds are contaminated with undesirable substances would in future be extended to feed additives; and

    —  Member State authorities would be required to carry out investigations where the level of contamination is below the MPL but could nevertheless be "significant"; there would also be a provision to lay down threshold action levels, set below the MPLs.

2.2  Our predecessors were told that this document was one of a range of measures proposed by the Commission in the wake of the Belgian dioxin crisis in 1999 (which was probably caused by mineral oil contaminating used cooking oils incorporated in animal feed). On the first proposal, the Government said that it is desirable for any contamination of animal feeding stuffs to be kept as low as possible, and that there was therefore some risk in allowing feed materials to be put into circulation above MPLs. However, it was unaware of any problems associated with the current arrangements, and considered that the proposal would not have prevented the Belgian contamination incident. It also believed that the Commission amendment had far wider implications, affecting other materials, such as wheat, maize, soya and groundnut. This could have a "major impact" on world trade in these products, and there could also be environmental and other implications relating to the disposal of rejected consignments. However, although the Government had asked the Commission for a risk assessment to substantiate the proposal, this had not been provided, and the Government would therefore continue to press the Commission on this point. At the same time, it was asking the Advisory Committee on Animal Feeding stuffs (ACAF) for its opinion, and consulting industry and other organisations.

2.3  As regards the other three elements in the proposal, the Government said that these too should be covered by a risk assessment, though the removal of the derogation for fodder used on farms appeared correct from a safety point of view, and the inclusion of feed additives within the scope of the proposal could also be supported. It did, however, express concern that no further information had been provided as to how the last proposal requiring action on "significant" levels of contamination would work in practice, or on what constituted such a level. The Commission had apparently indicated that it did not intend to introduce threshold levels for the full range of over 40 undesirable substances subject to MPLs, but that it would like to leave decisions on detail to the Standing Committee on Animal Feed. However, the Government considered there were drawbacks with this approach: for example, it is arguable that action thresholds are more appropriate to human food, which is directly ingested.

2.4  The Government also provided a provisional Regulatory Impact Assessment, but said that industry was being consulted in order to identify and quantify costs (though these would depend partly on the extent to which feed materials are marketed with undesirable substances in excess of the MPLs, or the proposed threshold levels were triggered).

2.5  In their Report of 16 February 2000, our predecessors noted the Government's reservations about at least some aspects of this proposal, and the Commission's apparent unwillingness to provide its risk assessment. They therefore asked to be kept informed of any progress on this last point, and on the outcome of the consultation exercise with the Advisory Committee on Animal Feeding stuffs and the industry, and said that they would like to see an updated Regulatory Impact Assessment when it was available. In the meantime, they did not clear the document.

2.6  The Commission subsequently put in December 2000 an amended proposal (document (b)) in response to the European Parliament's first reading of the original proposal. However, in an Explanatory Memorandum of 8 March 2001, the Minister who had become responsible — the then Parliamentary Under-Secretary of State at the Department of Health (Ms Gisela Stuart) — said that those amendments accepted by the Commission mostly related to textual and drafting matters acceptable to the UK, and that the Parliament's more contentious amendments had not been adopted by the Commission.

2.7  She also described the discussions which had taken place in the Council since our predecessors' previous Report. She said that these centred on the first element in the original proposal, dealing with "blending down", where the Portuguese Presidency in the first half of 2000 had put forward a compromise under which dilution would be prohibited only for contaminants which have a direct effect on human health. Not all Member States had been able to agree to this, but it was being suggested that a prohibition on diluting the presence of certain undesirable substances and products above MPLs should be retained, but should not come into effect until those limits have been reviewed by the Commission's scientific committees.

2.8  The Minister also said that this approach would accord with the opinion of the ACAF that the measure should be related to a scientific risk assessment, though ACAF was concerned that blending down of materials would occur in supplying third countries. She also said that, in the absence of revised MPLs, it was not possible to prepare a Regulatory Impact Assessment, but that the Government would do this before any such MPLs were agreed.

2.9  In their Report of 21 March 2001, our predecessors said that they would await the revised Regulatory Impact Assessment promised by the Minister before taking a view on these documents. In the meantime, however, they asked for clarification on the Minister's reference to the retention of a prohibition on diluting the presence of "certain undesirable" substances and products above maximum permitted levels. They wondered whether this implied that dilution would be permitted for other substances even where the maximum permitted level is exceeded, and asked about the justification for this, and the basis on which a decision would be made as to whether or not dilution would continue to be permitted.

Supplementary Explanatory Memorandum of 28 April 2001

2.10  In her Supplementary Explanatory Memorandum and Regulatory Impact Assessment of 28 April 2001, the Minister explained that the reference to certain undesirable substances which our predecessors had queried simply reflected the fact that MPLs had been set for only the contaminants of most concern, and did not therefore imply a distinction being drawn as between those substances for which an MPL already existed.

2.11  As regards the main element of the proposal on blending, she said that the maximum permitted levels would be reviewed before it came into effect (though this was unlikely to be before 2003). However, this meant that, until the new MPLs were known, it was not possible to cost the measure — though, in broad terms, these would depend partly on the extent to which feed materials are marketed with undesirable substances in excess of the MPLs, and hence the extent to which those concerned would need to ensure that they obtained feed materials. The level of MPL could also restrict the range of materials which could be used as ingredients for animal feed, and the countries from which these might be obtained — though the Minister also pointed out that, since some MPLs were currently set at the lowest level achievable (on the basis that companies can obtain materials with higher levels of contamination for blending), these might subsequently be increased as a consequence of the impending review, and thus mitigate against the effect of the prohibition on blending. The Minister said that, once the MPLs had been set, a final Regulatory Impact Assessment could be drawn up, and consideration be given to whether the whole package is proportionate.

2.12  The Regulatory Impact Assessment also dealt briefly with the other aspects of the proposal, and in particular with that aspect requiring Member States to carry out investigations into significant levels of contamination below the MPL, and laying down threshold action levels. However, it merely stated that action levels could continue to be based on MPLs as, where these are properly set and observed, they provide an adequate safeguard, but that, if threshold levels were to be introduced, it is possible that more consignments would be rejected

Subsequent developments

2.13  It was not possible for our predecessors to consider this Supplementary Explanatory Memorandum before the General Election, and our Clerk subsequently received a letter of 22 May 2001 from an official in the Food Standards Agency, saying that the Agriculture Council on 19-20 June was likely to adopt a common position, which would be supported by the UK. The proposal would then return to the European Parliament for a second reading. Our officials were also told that, after the Election, a Minister would write confirming what had happened at the June Council, but such a letter, from the present Parliamentary Under-Secretary of State at the Department of Health (Ms Hazel Blears), was sent only on 15 October, some four months later.


2.14  Whilst we appreciate the difficulties created by the General Election, we find it unacceptable that there should have been such a delay in notifying us of the outcome in the Council, and we would like the Minister to explain why this happened.

2.15  Our concerns are the greater because it would appear that the measure has been adopted by the Council, without it — or the Government — having any idea of its likely costs, since it is evident that these cannot be estimated until the review of the maximum permitted levels has been carried out. Nor, to take the point in paragraph 2.11 above, is it clear what would happen if the measure is found to be disproportionate. Similarly, it is not apparent from the material provided by the Government on 28 April 2001 whether, in relation to the part of the proposal referred to in paragraph 2.12 above, it is still intended to initiate action below the maximum permitted levels set, or whether such action would be on the basis of threshold levels. Again, we would like an explanation from the Minister. In the meantime, we are not clearing the documents.

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