EUROPEAN COMMISSION’S DRAFT GUIDANCE ON ACRYLAMIDE FOR THE FOOD INDUSTRY

In April 2018, the European Commission’s Directorate General for Health and Food Safety (DG SANTE) released
the draft Guidance on the application of Commission Regulation (EU) 2017/2158 on acrylamide, to inform
stakeholders and ask for their comments on the provisional text. The Commission’s Guidance has the purpose of
clarifying the Regulation to help economic operators with its implementation; thus, the Guidance is the text that
will be followed and implemented by food business operators. In its feedback to the Commission, SAFE highlighted
the main concerns arising from the draft and called on the Commission to provide an interpretation of the legal
text that gives priority to the health and concerns of European consumers.

CONTEXT
On the 11th of April, Regulation (EU) 2017/2158 on acrylamide finally became applicable in the
European Union. The Regulation, issued by the European Commission on November 20, 2017,
establishes new benchmark levels for the presence of acrylamide in food products and mitigation
measures to reduce its concentration, although it does not introduce a legal limit to actively protect
consumers against non-complying products. The Regulation also sets out activities to reduce the levels
of acrylamide in food products and requires food business operators to apply mitigation measures
throughout the whole production process, from the selection of raw materials to storage and
transport, recipe and process design and information to the end users. In addition to that, the
Regulation lowers the benchmarks levels for the presence of acrylamide in the various categories of
products.

Back in January 2018, new laboratory tests conducted by SAFE’s Member «il Salvagente», proved that
the food industry is still a long way off the new benchmark levels referred to in the legislation, as
laboratory analysis revealed that seven out of the eighteen samples of potato crisps had a
concentration of acrylamide clearly above the new benchmark level set by the European Union’s
legislation. On that occasion, SAFE underlined in a press release that relying on benchmarks does not
protect the health of consumers, which is why the EU needs to introduce maximum levels of
contaminants in food. For this reason, SAFE welcomes the latest news that the Commission has
recently started a discussion on the setting of maximum levels of acrylamide in food products – as
provided for in recital (15) of the Regulation – and the on-going discussions with member States to
replace Recommendation (EU) 2013/647 with a new recommendation that will include the monitoring
of foods not (directly) covered by Regulation (EU) 2017/2158.

At the beginning of April, the European Commission’s Directorate General for Health and Food Safety
(DG SANTE) released a draft Guidance on the application of Commission Regulation (EU) 2017/2158
on acrylamide, to inform interested organisations and stakeholders and ask for their comments on the
provisional text. The Commission’s Guidance has the purpose of clarifying the Regulation and help
economic operators with its implementation; thus, the Guidance is extremely important, as it is indeed
the text that will be followed and implemented by food business operators and affect consumers.

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+32 (0) 28 93 08 96
www.safefoodadvocacy.eu
SAFE’S CONCERNS ON THE DRAFT GUIDANCE
While it is positive that the first draft of this much-awaited Guidance has been released and that NGOs
and stakeholders were consulted, SAFE believes that several issues deserve to be examined as they
are worthy of concern, including the following:

a. BENCHMARK LEVELS

As regards the use of benchmark levels, Section C) of the Guidance seems to be introducing new
considerations not captured in Regulation (EU) 2017/2158. Before the approval of the Regulation, this
was the subject of long and complex negotiations between all actors involved, a process that
culminated in the draft of recitals (10) and (11) of Regulation. For this reason, SAFE believes that the
Commission should be particularly careful not to betray the spirit of the legal text approved in
November 2017.

In particular, a sentence in the first paragraph of section C) (“the benchmark level cannot be directly
used as reference to evaluate if a product can be placed on the market or not”) refers to a very sensitive
issue, which is the possibility to withdraw from the markets products with very high concentration of
acrylamide. By focusing the attention on the fact that exceeding the benchmark levels will not be used
as a reference to decide the removal of a product from the market, the Guidance risks to empower the
industry and discourage the application of mitigation measures from FBOs, since the problem of
exceeding the benchmark will be perceived as unrelated to the possibility of marketing that product.
On the contrary, SAFE argues that the Guidance should stress the importance of keeping acrylamide
concentration below the benchmark levels, as they constitute a performance indicator to verify the
effectiveness of the mitigation measures and exceeding them should be implicitly considered as
indicator of a poor performance.

b. SAFETY OF FOOD PRODUCTS RELATED TO THE PRESENCE OF ACRYLAMIDE

In addition to the above-mentioned concern, the first paragraph of section C) is also contradicted by
the statements in section D) of the Guidance.

Due to the second sentence of section D) (“an exceedance of the benchmark level does not necessarily
result in being the food unsafe”), exceeding the benchmark level does not imply that the food is unsafe.
And yet, the possibility to apply art. 14 of the General Food Law 178/2002 (recalled in the first sentence
of section D) is linked to the recognition that a certain food product is unsafe, which appears impossible
in this framework. Therefore, if exceeding the benchmark is not considered enough to determine that
a product is not safe, SAFE wonders what parameters will be used to measure the mentioned “very
high level of acrylamide”. If the benchmark is not to be used, SAFE strongly encourage the Commission
to clarify the threshold levels above which a food product cannot be deemed safe and to quantify
the vague concept of a “very high level of acrylamide”.

c. TRADITIONAL CULINARY PRACTICES/TRADITIONAL FOODS

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Section C) of the Guidance introduces a new exemption for specific foods within broad food categories
by stating that “the application of mitigation measures and benchmark levels should not result in a
prohibition of certain traditional culinary practices and/or certain traditional foods”.

Recital (10) of the Regulation, which is also reproduced in sections C) and I) of the Guidance, already
addressed the issue of traditional foods and culinary practices by stating that “for specific foods […]
there may be specific production, geographic or seasonal conditions or product characteristics for
which it is not possible to achieve the benchmark levels despite the application of all mitigation
measures. In such situations, the food business operator should be able to show the evidence that he
applied the relevant mitigation measures”.

Therefore, adding that the application of mitigation measures and benchmark levels should not
result in a prohibition of certain foods is, in our opinion, an unnecessary specification that
strengthens the position of the food industry and encourages FBOs not to make their best efforts to
reduce the presence of acrylamide in their products, especially when they are traditional foods or
culinary practices. On the contrary, we believe that if the Commission or Member States are concerned
about specific food categories being affected by the Regulation, the best course of action would be to
specifically list these categories of protected food, instead of introducing such an unnecessary
specification.

d. COLOUR GUIDES

In section H – Colour guides, the Guidance states that “for FBOs referred to in article 2(2) and 2(3), the
use and display of colour guides for the cooking of French fries and preparing sandwiches is a strong
recommendation but not an obligation”.

This seems to weaken Annex II, part A, art. 1 of the Regulation, which states that: “for the cooking of
French fries, it is appropriate that the FBOs make use of available colour guides providing guidance on
the optimal combination of colour and low levels of acrylamide” and that “it is appropriate that a colour
guide providing guidance on the optimal combination of colour and low levels of acrylamide is visibly
displayed at the premises to the staff preparing the food”.

In the light of this, SAFE believes that the Guidance should not stress the idea that the use and display
of colour guides for the cooking of French fries is not an obligation, as this is a specification that was
not present in the approved Regulation. By emphasising that using and displaying colour guides is not
an obligation, section H of the Guidance encourages food business operators referred to in Article 2(2)
and 2(3) to apply a weakest interpretation of the Regulation, in contradiction with its spirit and with
the aim of protecting consumers. Therefore, SAFE argues that the first sentence of section H should be
erased from the Guidance.

CONCLUSIONS
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Mundo B- Rue d’Edimbourg 26
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+32 (0) 28 93 08 96
www.safefoodadvocacy.eu
In the light of the above remarks, SAFE believes that the draft Guidance makes traceable changes to
the text of the Regulation, introducing ambiguous specifications and slightly different interpretations
of the legal text that are difficult to accept as they weaken the future implementation of the
Regulation.

The purpose of any guidance is to help economic operators with the implementation of a Regulation;
therefore, it is of utmost importance for the Commission to make sure that this draft guidance does
not betray the spirit of the approved Regulation, undermining and possibly negating the purpose of
the legal text.

Since the approval of Regulation 2017/2158 was the culmination of a collaborative process and of
intense negotiations between all actors involved, SAFE hopes that the Commission’s Guidance –
which is the text that will be actually followed and implemented by FBOs – will provide an
interpretation of the legal text that gives priority to the health and concerns of European consumers,
instead of decreasing their protection.

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SAFE – Safe Food Advocacy Europe A.S.B.L.
Mundo B- Rue d’Edimbourg 26
1050 Brussels Belgium
+32 (0) 28 93 08 96
www.safefoodadvocacy.eu