Who Is a Food Business Operator?

Food business operators are subject to a wide range of obligations to ensure consumer protection: at every stage of food distribution, compliance with food law requirements must be ensured. It is therefore of fundamental importance to establish who falls within the definition of "food business operator." And as a decision of the Regional Administrative Court of Lower Austria (LVwG)^[1] illustrates, many people become food business operators without being fully aware of it.

The Case

The case arose from an official food inspection carried out at an equestrian farm. The inspection authority attended the premises because the farm's website advertised, among other things, products sold through direct distribution. However, the inspection could not take place — the inspector was turned away. This resulted in two penalties: €1,500 for obstructing the inspection, and a further €1,500 for refusing to provide information.

The person penalised argued that she only sourced the products (evidently food products) from the United States in small quantities for herself and her family, and that she made virtually no profit from this activity. She maintained that she was not a food business operator at all, but ran an agricultural business and was otherwise retired. She further submitted that the inspector had been told the inspection was simply not possible at that particular moment, as she had to supervise children riding horses. She also denied that any specific information had been requested.

Definition of Food Business Operator

The appeal was only partially successful. The LVwG clarified that the sole criterion for determining whether a person qualifies as a food business operator is the definition set out in Art 3 of Regulation (EC) No 178/2002. Under Art 3(2) of that Regulation, "food business operators" are the natural or legal persons responsible for ensuring that the requirements of food law are met within the food business under their control.

Art 3(3) of the Regulation defines a "food business" as any undertaking, whether or not for profit and whether public or private, carrying out any of the activities related to the production, processing, and distribution of food.

The consequence is clear: anyone operating a business that carries out activities related to the distribution of food is a food business operator — regardless of whether that business generates significant profit, little profit, or no profit at all. Self-employed persons engaged in the direct distribution of food therefore fall within this definition. Importantly, food supplements are also classified as food for these purposes.^[2]

Official Inspections

Under § 35 LMSVG, food inspection authorities are empowered to carry out inspections, conduct investigations, and enter premises and buildings, among other things. Food business operators are obliged to permit this. However, a brief postponement of an inspection is possible and may even be required for good cause. Indeed, § 35(4) LMSVG expressly provides that official inspections must, as far as possible, avoid disrupting business operations and causing unnecessary attention.

In the present case, the court did not accept that the appellant had indicated her supervisory duties towards the children as the reason for the postponement. The penalty for obstructing the inspection was therefore upheld. The penalty for breach of the duty to provide information was, however, set aside, as the inspector had not in fact requested any specific information.

More Food Law:

Some of the following articles are in German.

About Sabadello Legal

Sabadello Legal advises and represents manufacturers of food products and food supplements, among other areas — including in the context of direct distribution. Our clients include food law start-ups as well as established SMEs and international corporations. If you have questions about food law, we would be happy to assist. We advise on food law (LMSVG), labelling and compliance, and product controls — from risk analysis and regulatory communication through to defending against official measures and administrative penalties.

Contact

RA Mag. Andreas Sabadello
Sabadello Legal
+43 1 9971037
office@sabadello.legal

Disclaimer

This article is for general information purposes only. It does not constitute individual legal advice.

^[1] Regional Administrative Court of Lower Austria, LVwG-S-100/001-2020, of 13 July 2020.

^[2] § 3(4) LMSVG.