Key Facts
- •Guilin GFS Monk Fruit Corporation (Claimant) challenged the Food Standards Agency (FSA) and Food Standards Scotland's (FSS) decision classifying monk fruit decoctions as 'novel food'.
- •The Agencies' decision was based on Article 4 of the retained Novel Foods Regulation (EU) 2015/2283, determining whether the food was used for human consumption to a significant degree within the EU or UK before 15 May 1997.
- •The Claimant argued the Agencies misapplied the 'significant degree' test by rigidly applying the EU Guidance's categorization of evidence (very good, good, supporting), overlooking the 'whole picture' approach.
- •The Claimant submitted extensive evidence, including qualitative and quantitative studies, certificates of origin, recipes, and testimonies, to demonstrate pre-1997 consumption.
Legal Principles
Determination of 'novel food' status hinges on whether a food was used for human consumption to a significant degree within the EU or UK before 15 May 1997.
Article 3(2)(a) of the Novel Foods Regulation
Food business operators must verify their product's novel food status and consult the Agencies if unsure. Agencies must consider all submitted information and request further details if needed.
Article 4 of the Novel Foods Regulation and Article 4 of the Implementing Regulation
Agencies have a statutory duty to provide reasons for their decisions (Article 7 of Implementing Regulation). Reasons must be intelligible and adequate, enabling understanding of the decision-making process.
Article 7 of the Implementing Regulation and South Buckinghamshire District Council v Porter (No. 2) [2004] 1 WLR 1953
The 'significant degree' assessment should consider the typical consumption levels for specific product categories and examine the 'whole picture', considering various evidence sources due to potential data limitations from the passage of time.
EU Guidance, paragraphs 1.1, 1.4, 21, 22, 23, 24, 25
Ex post facto witness evidence is admissible to elucidate, but not contradict or fundamentally alter, the original reasons for a decision. New reasons introduced after proceedings begin are treated with extra caution.
R. v Westminster City Council Ex p. Ermakov [1996] 2 All ER 302; Nash v Chelsea College of Art and Design [2001] EWHC 538 (Admin)
Outcomes
The court quashed the Agencies' decision classifying monk fruit decoctions as 'novel food'.
The Agencies erred in law by applying a rigid hierarchical approach to the evidence, focusing solely on the absence of pre-1997 sales invoices and failing to consider the 'whole picture' of the evidence submitted. They misinterpreted the 'significant degree' test and improperly imposed an independent verification requirement.
The Agencies were ordered to reconsider the Claimant's application, considering all evidence on its merits and applying the correct legal test.
The court found the Agencies’ legal errors prevented a proper assessment of the evidence. The court was unable to determine whether the evidence, if properly assessed, would have demonstrated a significant history of consumption pre-May 1997.