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Draft legislation of the Federal Ministry of Food and Agriculture
Ordinance of the Federal Ministry of Food and Agriculture

Ordinance adapting national legislation to provisions of Union law on flavourings and food containing flavourings


The Federal Ministry of Food and Agriculture orders the following on the basis of

§ 7(1)(1) and (2)(1), and on the basis of § 13(1)(1)(a), (2) and (4)(1)(a) and (b), in each case also in conjunction with § 4(2)(2), and of § 35(1)(b)(aa) of the Food and Feed Code in the version published on 3 June 2013 (Federal Law Gazette I p. 1426), of which § 7(1) and (2) and § 13(1) and (4) as well as § 35(1) were amended most recently by Article 67 of the Ordinance of 31 August 2015 (Federal Law Gazette I p. 1474), in agreement with the Federal Ministry of Economic Affairs and Energy,
§ 13(1)(1)(a)(2) and 4(1)(a and b), § 35(1)(b)(aa), § 7(1)(1) also in conjunction with § 4(2)(2) of the Food and Feed Code in the version published on 3 June 2013 (Federal Law Gazette I p. 1426), of which § 13(1)(1)(a) and (4)(1)(b) were amended most recently by Article 1(13) of the Act of .. 2021 (Federal Law Gazette I p. ...), § 13(1)(2) and (4)(1)(a) were amended most recently by § 67(5) of the Ordinance of 31 August 2015 (Federal Law Gazette I p. 1474), and § 35(1)(b)(aa) was amended most recently by Article 67(6) of the Ordinance of 31 August 2015 (Federal Law Gazette I p. 1474), in agreement with the Federal Ministry of Economic Affairs and Energy,

§ 13(1)(6), also in conjunction with § 4(2)(2), and § 62(1)(1) and (2)(a) of the Food and Feed Code in the version published on 3 June 2013 (Federal Law Gazette I p. 1426), of which § 13(1) was amended most recently by Article 67 of the Ordinance of 31 August 2015 (Federal Law Gazette I p. 1474) and § 62(1), last amended by Article 10 of the Act of 27 June 2017 (Federal Law Gazette I p. 1966), and
§ 13(1)(6), § 62(1)(1) and (2)(a) and of § 75(5), also in conjunction with § 4(2), of the Food and Feed Code in the version published on 3 June 2013 (Federal Law Gazette I p. 1426), of which § 13(1)(6) was amended most recently by Article 67(5) of the Ordinance of 31 August 2015 (Federal Law Gazette I p. 1474) and § 62(1)(1) and (2)(a), last reworded by Article 1(48) of the Act of ... 2021 (Federal Law Gazette I p. ...), and § 75(5), last amended by Article 1(53) of the Act of ... 2021 (Federal Law Gazette I p. ...), and

§ 3(1), first sentence, point 1 of the Milk and Margarine Act of 25 July 1990 (Federal Law Gazette I p. 1471), as last amended by Article 2(2) of the Act of 18 January 2019 (Federal Law Gazette I p. 33), in agreement with the Federal Ministry of Economic Affairs and Energy:

Article 1
Article 1

Implementing Ordinance on flavourings and food containing flavourings

(Flavourings Implementation Ordinance - AromenDV)

§ 1.

Scope of application

This Ordinance shall apply by supplementing

the rules laid down in Regulation (EC) No 1334/2008 of the European Parliament and of the Council of 16 December 2008 on flavourings and certain food ingredients with flavouring properties for use in and on foods and amending Council Regulation (EEC) No 1601/91, Regulations (EC) No 2232/96 and (EC) No 110/2008 and Directive 2000/13/EC (OJ L 354, 31.12.2008, p. 34; L 105, 27.4.2010, p. 115), as last amended by Regulation (EU) 2020/1681 (OJ L 379, 13.11.2020, p. 27), as amended, as regards the placing on the market and labelling of flavourings within the meaning of Article 3(2)(a) of Regulation (EC) No 1334/2008,
the rules laid down in Regulation (EC) No 1334/2008 of the European Parliament and of the Council of 16 December 2008 on flavourings and certain food ingredients with flavouring properties for use in and on foods and amending Council Regulation (EEC) No 1601/91, Regulations (EC) No 2232/96 and (EC) No 110/2008 and Directive

2000/13/EC (OJ L 354, 31.12.2008, p. 34; L 105, 27.4.2010, p. 115; L 406, 3.12.2020, p. 67), as last amended by Regulation (EU) 2020/1681 (OJ L 379, 13.11.2020, p. 27), as amended, as regards the placing on the market and labelling of flavourings within the meaning of Article 3(2)(a) of Regulation (EC) No 1334/2008,

the rules laid down in Regulation (EC) No 2065/2003 of the European Parliament and of the Council of 10 November 2003 on smoke flavourings used or intended for use in or on foods (OJ L 309, 26.11.2003, p. 1), as last amended by Regulation (EU) 2019/1381 (OJ L 231, 6.9.2019, p. 1), as amended, as regards placing on the market


mass caterers within the meaning of Article 2(2) of Regulation (EU) No 1169/2011.

§ 2

Definitions

For the purposes of this Ordinance, non-prepacked food is food which is

prepacked with a view to direct sale.

§ 3

Food intended for infants

The use of flavouring substances is prohibited in the production of
infant formulae and

food intended for infants less than sixteen weeks old.

§ 4

Use of freshly generated smoke


By way of derogation from paragraph 2, peat may also be used for the production of freshly generated smoke for the treatment of malt for the production

of whisky or whiskey within the meaning of point 2 of Annex I to Regulation (EU) 2019/787 of the European Parliament and of the Council of 17 April 2019 on the definition, description, presentation and labelling of spirit drinks, the use of the names of spirit drinks in the presentation and labelling of other foodstuffs, the protection of geographical indications for spirit drinks, the use of ethyl alcohol and distillates of agricultural origin in alcoholic beverages, and repealing Regulation (EC) No 110/2008 (OJ L 130, 17.5.2019, p. 1; L 316I, 6.12.2019, p. 3) and
of whisky or whiskey within the meaning of point 2 of Annex I to Regulation (EU) 2019/787 of the European Parliament and of the Council of 17 April 2019 on the definition, description, presentation and labelling of spirit drinks, the use of the names of spirit drinks in the presentation and labelling of other foodstuffs, the protection of geographical indications for spirit drinks, the use of ethyl alcohol and distillates of agricultural origin in alcoholic beverages, and repealing Regulation (EC) No 110/2008 (OJ L 130, 17.5.2019, p. 1; L 316I, 6.12.2019, p. 3; L 178, 20.5.2021, p. 4) and

of beer.

Freshly generated smoke must not be used to treat water, aqueous solutions, edible oils and other liquids, or nitrite curing salt.

The average content of benzo(a)pyrene in smoked cheese or smoked products made from cheese shall not exceed one microgram per kilogram (1.0 µg/kg).

§ 5

Labelling


if the ammonium chloride content exceeds 79.9 grams per kilogram, in addition to the particular provided for in point 2, the particular ‘Excessive consumption may be harmful to health, in particular for persons suffering from kidney disease’.

The particulars referred to in paragraph 1, first sentence and in paragraph 2 shall be provided as follows in the case of foods within the meaning of § 2(c), insofar as they are not offered for self-service, and in the case of foods within the meaning of § 2(a) and (b):
The particulars referred to in paragraph 1, first sentence and in paragraph 2 shall be provided as follows in the case of foods within the meaning of § 2(3), insofar as they are not offered for self-service, and in the case of foods within the meaning of § 2(1) and (2):

in accordance with Article 12(2) of Regulation (EU) No 1169/2011 or § 4(3) and (4) of the Food Information Implementing Ordinance of 5 July 2017 (Federal Law Gazette I p. 2272), and
in accordance with Article 12(2) of Regulation (EU) No 1169/2011 or § 4(3) and (4) of the Food Information Implementing Ordinance of 5 July 2017 (Federal Law Gazette I p. 2272), last amended by Article 4 of the Ordinance of 18 November 2020 (Federal Law Gazette I p. 2504) and

insofar as particulars pursuant to § 4(2) of the Food Information Implementation Ordinance are mandatory, in the same manner and through the identical medium as the particulars in accordance with § 4(2) of the Food Information Implementation Ordinance are to be provided.

The particulars referred to in paragraph 1, first sentence and in paragraph 2 shall be provided in the case of foods within the meaning of § 2(c) if they are offered for self-service and in the case of prepacked liquorice products, in accordance with Article 12(2) of Regulation (EU) No 1169/2011.
The particulars referred to in paragraph 1, first sentence and in paragraph 2 shall be provided in the case of foods within the meaning of § 2(3) if they are offered for self-service and in the case of prepacked liquorice products, in accordance with Article 12(2) of Regulation (EU) No 1169/2011.

In the case of foods offered for sale by means of distance communication, the particulars referred to in paragraph 1, first sentence and in paragraph 2 shall be provided in accordance with Article 14(1) of Regulation (EU) No 1169/2011, without prejudice to paragraphs 3 and 4.

Flavourings intended for sale to the final consumer which use the term ‘natural’ in their description may be placed on the market only if the use of that term complies with the requirements of Article 17(2) in conjunction with Article 16 of Regulation (EC) No 1334/2008.

§ 6

Criminal offences


Under § 58(3)(2), paragraphs 4 to 6 of the Food and Feed Code, penalties shall be imposed on any party who wilfully or negligently places a smoke flavouring or a food on the market contrary to Article 4(2) of Regulation (EC) No 2065/2003 of the European Parliament and of the Council of 10 November 2003 on smoke flavourings or intended for use in or on foods (OJ L 309, 26.11.2003, p. 1), as last amended by Regulation (EU) 2019/1381 (OJ L 231, 6.9.2019, p. 1).

§ 7

Administrative offences

Any party who negligently commits an act referred to in § 6(1) shall be deemed to have committed an administrative offence under § 60(1)(2) of the Food and Feed Code.

An administrative offence within the meaning of § 60(4)(2)(a) of the Food and Feed Code is committed by any party who violates Regulation (EC) No 1334/2008 of the European Parliament and of the Council of 16 December 2008 on flavourings and certain food ingredients with flavouring properties for use in and on foods and amending Council Regulation (EEC) No 1601/91, Regulations (EC) No 2232/96 and (EC) No 110/2008 and Directive 2000/13/EC (OJ L 354, 31.12.2008, p. 34; L 105, 27.4.2010, p. 115), as last amended by Regulation (EU) 2020/1681 (OJ L 379, 13.11.2020, p. 27), by wilfully or negligently placing a flavouring on the market contrary to Article 14(1), first sentence in conjunction with Articles 15 or 16 or contrary to Article 17(1).

§ 8

Transitional provisions

Liquorice products which do not comply with the requirements of § 5(2) may continue to be placed on the market after (date of entry into force of this Ordinance) until stocks are exhausted.
Liquorice goods which do not comply with the requirements of § 5(2) may, until stocks are exhausted, continue to be placed on the market even after... [insert: date of entry into force referred to in the first sentence of Article 3 of this Regulation].

Article 2
Article 2

Amendment to the Cheese Ordinance


Paragraph 1 is amended as follows:

In the clause before point 1, the words ‘and subject to § 23’ are deleted.
n the clause before point 1, the words ‘and subject to § 23’ are deleted.

In points 1(e) and 2(e) respectively, the semicolon at the end is replaced by a comma.
In point 1(e), the semicolon at the end is replaced by a comma.

The following letter f is added to point 2:
Point 2 is amended as follows:

‘freshly generated smoke within the meaning of § 4(2) of the Flavourings Implementation Ordinance;’.
In point (e), the semicolon at the end is replaced by a comma.

The following letter f is added:

‘ freshly generated smoke within the meaning of § 4(2) of the Flavourings Implementation Ordinance;’.

In paragraph 2 and paragraph 2a, first sentence, respectively the words ‘and subject to § 23’ are deleted.

In § 4(1), the words ‘and subject to § 23’ are deleted.
In § 4(1), the words ‘and subject to § 23’ are deleted.

The sixth section is repealed.


Paragraph 3 is repealed.

In Paragraph 5, the word ‘until’ is replaced by the word ‘or’.
In Paragraph 5, the word ‘until’ replaced by the word ‘or’.

Article 3
Article 3

Entry into force, abrogation