The hygiene regulations under European law for foodstuffs placed on the market also apply if the foodstuffs are distributed free of charge to consumers without the intention of making a profit. This was decided by the Berlin Administrative Court in summary proceedings (VG Berlin, decision dated 21.10.2021, ref. VG 14 L 453/21).
In the case in question, a man had filed an action against a prohibition order issued by the responsible district authority in summary proceedings.
He had handed out donated food free of charge to needy persons at a non-profit stand (as a "food rescuer") organized by him and open to the public, disregarding the strict European hygiene regulations for the storage and distribution of food. The stand was supplied with food by a local organic market as well as by private individuals, and this food was given to people in need via volunteers. Some of the food was already spoiled or the best-before date had expired. Refrigeration was generally dispensed with. The district office then prohibited the further marketing of the donated food.
The administrative court had to answer the question of whether the hygiene regulations only apply to commercial food stores or must also be observed when food is placed on the market free of charge without the intention of making a profit. It ruled that the concern to reduce food waste did not justify waiving the applicable hygiene regulations. This is because the health of consumers* takes precedence over the concern of "saving food". - The applicable hygiene regulations must be observed by all those who "distribute" food, i.e. they apply irrespective of profit-making intentions.
Therefore, the prohibition order was considered lawful in the result. However, the decision is not yet legally binding. An appeal against the decision may still be lodged with the Berlin-Brandenburg Higher Administrative Court (OVG).
If you have any questions on this subject, please contact Dr. Cathrin Correll, attorney at law.