Advocate General delivers Opinion on Novel Food Status of Insects

On 9 July 2020, Advocate General Bobek delivered his opinion on the status of edible insects (e.g., mealworms, locusts, and crickets) under the EU novel foods rules.  While insects fall under the scope of the new EU Novel Food Regulation 2015/2283, the opinion recommends the Court of Justice to deny novel food status to such ingredients under the old legal regime of now repealed Regulation 258/97.

The AG Opinion concerns a preliminary reference from the French Council of State.  Entoma SAS argued that whole insects for human consumption did not fall under the scope of Regulation 258/97 and were thus not subject to a safety assessment before their placing on the market.  Both France and Italy held that whole insects were covered by Regulation 258/97 and relied on the current scope of Regulation 2015/2283 to demonstrate this.  AG Bobek disagreed with both governments.

According to the Advocate General, whole insects for human consumption cannot be considered as novel foods under Regulation 258/97 as they do not fulfill the substantive condition of “food ingredients isolated from animals” in Article 1(2).  AG Bobek interpreted the definition as effectively requiring animal-based foods to go through a process of extraction from the animal before they can fall under the scope.  On this point, he stated that “only specific parts or elements of animals used as an ingredient could be included.”  Such a requirement substantially limits the scope of Regulation 258/97 for animal-based foods.  The AG therefore concluded that whole insects intended to be consumed as such cannot qualify as novel food as they cannot be considered as isolates, nor as ingredients.

In contrast, AG Bobek pointed out that the new rules for novel foods provided by Regulation 2015/2283 now clearly includes whole insects in its scope.  Under Article 3(2)(a)(v) of Regulation 2015/2238, “food consisting of, isolated from or produced from animals or their parts” can qualify as novel.  The AG considered that this definition “is very clearly an amendment, considerably expanding the scope of that definition.”  As whole insects for human consumption are clearly “food consisting of”, or “food produced from” animals, they now qualify as novel foods under Regulation 2015/2238.  This view is also confirmed by recital 8 of Regulation 2015/2238, which explicitly states that “the categories of food which constitute novel foods […] should cover whole insects and their parts.”

Since the scope of the EU novel foods framework has been clarified in Regulation 2015/2238, several novel foods applications concerning edible insects have been submitted to the Commission for a safety assessment.  The Commission’s website lists the submitted summaries of applications and includes applications concerning insects, such as mealworms, crickets, locusts, and grasshoppers (see here).

The AG opinion is non-binding.  It will now be for the Court of Justice to assess the case.

The opinion is available here.

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