FSAI successful in Court application to enforce Closure Order against a food business
On 21 March 2022, the Irish High Court ordered a hemp and CBD business (the Food Business), to cease trading with immediate effect, including cessation of all activity on internet sites and social media sites. The High Court reaffirmed its earlier interim order issued in September 2021 against the Food Business. The Closure Order was brought by the Food Safety Authority of Ireland (FSAI) in response to the Food Business's failure to comply with a Closure Order issued in August 2021. The application was made under the European Union (Official Controls in Relation to Food Legislation) Regulations, 2020 (the Regulations). The Regulations enable the FSAI, to seek a court order directing compliance, where a food business contravenes an enforcement order.
Breaches of food safety requirements
The Food Business was one of four hemp/CBD businesses to receive a FSAI enforcement order in recent months. The reasons the FSAI issued a Closure Order against the Food Business, included:
- Failure to keep its registered details up-to-date, in particular where it had failed to notify the FSAI of significant changes to its activities (production and processing)
- Failure to comply with Hazard Analysis and Critical Control Points (HACCP) in particular pertaining to the placing on the market of CBD oils produced by CO2 extraction and CBD isolate
- Failure to have traceability procedures in place to identify suppliers of foods or substances intended to be, or expected to be, incorporated into foods
- Placing unsafe food on the market- Hempture Hemp CBD isolate >99% (Pure crystal Cannabidiol) is currently considered unsafe under the EU General Principles of Food Law Regulation, as it is a pure chemical of unknown provenance, with an uncharacterised manufacturing process and with no upper safe levels determined yet in the EU
- Placing unauthorised novel foods on the market including CBD oils produced by CO2 extraction, hemp terpenes and Pure crystal Cannabidiol
In addition to issuing a Closure Order following an inspection of the Food Business, the FSAI reported that it seized, removed and detained large quantities of the Food Business's products. A Closure Order usually remains in place until the breaches of food safety legislation are remedied by the food business.
The FSAI commenting on the High Court's decision, stated that "The vast majority of food businesses throughout Ireland comply with regulations, however, any incident of non-compliance with a Closure Order or any enforcement order will not be permitted… [The ruling] also sends a strong message to the food industry that non-compliances will not be tolerated.”
The granting of the High Court order in this case makes it clear that businesses should not only be vigilant in ensuring they are compliant with applicable food safety legislation but that a failure to adhere to enforcement orders can have significant implications for a business. Additionally, the FSAI can seek its legal costs against a food business in bringing a prosecution under the Regulations. This case also illustrates the wide breadth of powers available to the FSAI and Health Service Executive in enforcing food law in Ireland.
It is evident that CBD products have been on the FSAI's enforcement agenda for the last few years and will likely remain on the regulatory radar for EU authorities given the fluctuating legal position on CBD products in the EU.
For further information or assistance in dealing with enforcement orders or other food safety regulatory requirements in Ireland, please contact Róise Nic Ghráinne, Senior Associate, or any other member of the A&L Goodbody Healthcare and Life Sciences Team.
Date published: 31 March 2022