EN Official Journal of the European Union L 64/15

COMMISSION REGULATION (EU) No 234/2011

of 10 March 2011

implementing Regulation (EC) No 1331/2008 of the European Parliament and of the Council establishing a common authorisation procedure for food additives, food enzymes and food flavourings

(Text with EEA relevance)

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to Regulation (EC) No 1331/2008 of the European Parliament and of the Council of 16 December 2008 establishing a common authorisation procedure for food additives, food enzymes and food flavourings (1), and in particular Article 9(1) thereof,

After consulting the European Food Safety Authority pursuant to Article 9(2) of Regulation (EC) No 1331/2008,

Whereas:

(1) Regulation (EC) No 1331/2008 lays down procedural arrangements for updating the lists of substances the marketing of which is authorised in the Union pursuant to Regulation (EC) No 1333/2008 of the European Parliament and of the Council of 16 December 2008 on food additives (2), Regulation (EC) No 1332/2008 of the European Parliament and of the Council of 16 December 2008 on food enzymes (3) and 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 (4) (hereinafter referred to as ‘the sectoral food laws’).

(2) Pursuant to Article 9 of Regulation (EC) No 1331/2008 it is for the Commission to adopt the implementing measure as regards the content, drafting and presentation of applications to update the Union lists under each sectoral food law, arrangements for checking the validity of applications and the type of information that should be included in the opinion of the European Food Safety Authority (hereinafter referred to as ‘the Authority’).

(3) In order to update the lists it is necessary to verify that the use of the substance complies with the general and specific conditions of use as provided for in the respective sectoral food laws.

(4) The Authority adopted a scientific opinion on 9 July 2009 on data requirements for the evaluation of food additive applications (5). This data should be provided when an application for the use of a new food additive is submitted. In case of an application for a modification of the conditions of use of an already authorised food additive or for a modification of the specifications of an already authorised food additive, the data required for risk assessment may not be required, as long as this is justified by the applicant.

(5) The Authority adopted a scientific opinion on 23 July 2009 on data requirements for the evaluation of food enzyme applications (6). This data should be provided when an application for the use of a new food enzyme is submitted. In case of an application for a modification of the conditions of use of an already authorised food enzyme or for a modification of the specifications of an already authorised food enzyme, the data required for risk assessment may not be required, as long as this is justified by the applicant.

(6) The Authority adopted a scientific opinion on 19 May 2010 on data requirements for the risk assessment of flavourings to be used in or on foods (7). This data should be provided when an application for the use of a new flavouring is submitted. In case of an application for a modification of the conditions of use of an already authorised flavouring or for a modification of the specifications of an already authorised flavouring, the data required for risk assessment may not be required, as long as this is justified by the applicant.

(7) It is important that toxicological tests are performed to a certain standard. Therefore Directive 2004/10/EC of the European Parliament and of the Council of 11 February 2004 on the harmonisation of laws, regulations and administrative provisions relating to the application of the principles of good laboratory practice and the verification of their applications for tests on chemical substances (8) should be followed. Where such tests are carried out outside the territory of the Union, they should follow ‘the OECD Principles of Good Laboratory Practice’ (GLP) (OECD, 1998) (9).

(8) The use of food additives and food enzymes should always be technologically justified. Applicants should also explain in case of a food additive why the technological effect cannot be achieved by any other economically and technologically practicable means.

(9) The use of a substance should be authorised if it does not mislead the consumer. Applicants should explain that the requested uses do not mislead the consumer. The advantages and benefits for the consumer should also be explained in case of a food additive.

(10) Without prejudice to Article 9 of Regulation (EC) No 1332/2008, Article 19 of Regulation (EC) No 1333/2008 and Article 13 of Regulation (EC) No 1334/2008, the Commission should verify the validity of the application and whether it falls within the scope of the respective sectoral food law. An advice from the Authority should be taken into account, where appropriate, on the suitability of the submitted data for risk assessment. Such verification should not delay the assessment of an application.

(11) The information provided in the opinion of the Authority should be sufficient to ascertain whether the authorisation of the proposed use of the substance is safe for consumers. This includes conclusions on the toxicity of the substance, where appropriate, and possible establishment of an acceptable daily intake (ADI) expressed in a numerical form with details of a dietary exposure assessment for all food categories, including exposure of vulnerable consumer groups.

(12) The applicant should also take into account detailed guidance concerning the data required for risk assessment established by the Authority (The EFSA Journal (10)).

(13) This Regulation takes into account current scientific and technical knowledge. The Commission may revise this Regulation in the light of any developments in this field and the publication of any revised or additional scientific guidance by the Authority.

(14) Practical arrangements related to an application for the authorisation of food additives, food enzymes and flavourings, such as addresses, persons to contact, transmission of documents, etc., should be made available in a separate communication of the Commission and/or the Authority.

(15) It is necessary to provide for a time period in order to allow the applicants to comply with the provisions of this Regulation.

(16) The measures provided for in this Regulation are in accordance with the opinion of the Standing Committee on the Food Chain and Animal Health,

HAS ADOPTED THIS REGULATION:

CHAPTER I

GENERAL PROVISIONS

Article 1

Scope

This Regulation shall apply to applications as referred to in Article 3(1) of Regulation (EC) No 1331/2008 establishing a common authorisation procedure for food additives, food enzymes and food flavourings.

CHAPTER II

CONTENT, DRAFTING AND PRESENTATION OF AN APPLICATION

Article 2

Content of an application

1. The application referred to in Article 1 shall consist of the following:

(a) a letter;

(b) a technical dossier;

(c) a summary of the dossier.

2. The letter referred to in paragraph 1(a) shall be drafted in accordance with the model provided in the Annex.

3. The technical dossier referred to in paragraph 1(b) shall contain:

(a) the administrative data as provided for in Article 4;

(b) the data required for risk assessment as provided for in Articles 5, 6, 8 and 10; and

(c) the data required for risk management as provided for in Articles 7, 9 and 11.

4. In case of an application for a modification of the conditions of use of an already authorised food additive, food enzyme or flavouring all the data mentioned in Articles 5 to 11 may not be required. The applicant shall submit a verifiable justification why the proposed changes do not affect the results of the existing risk assessment.

5. In case of an application for a modification of the specifications of an already authorised food additive, food enzyme or flavouring:

(a) the data may be limited to the justification of the request and the changes in the specification;

(b) the applicant shall submit a verifiable justification why the proposed changes do not affect the results of the existing risk assessment.

6. The summary of the dossier referred to in paragraph 1(c) shall include a reasoned statement that the use of the product complies with the conditions laid down in:

(a) Article 6 of Regulation (EC) No 1332/2008; or

(b) Articles 6, 7 and 8 of Regulation (EC) No 1333/2008; or

(c) Article 4 of Regulation (EC) No 1334/2008.

Article 3

Drafting and presentation

1. Applications shall be sent to the Commission. The applicant shall take into account the practical guidance on the submission of applications made available by the Commission (Directorate General for Health and Consumers’ (11) website).

2. For the establishment of the Union list of food enzymes as referred to in Article 17 of Regulation (EC) No 1332/2008, the deadline for submitting applications shall be 24 months after the date of application of the implementing measures established by this Regulation.

Article 4

Administrative data

The administrative data as referred to in Article 2(3)(a) shall include:

(a) name of the applicant (company, organisation, etc.), address and contact details;

(b) name of the manufacturer(s) of the substance, if different than the applicant’s, address and contact details;

(c) name of the person responsible for the dossier, address and contact details;

(d) date of submission of the dossier;

(e) type of the application, i.e. concerning a food additive, a food enzyme, or a flavouring;

(f) where applicable, chemical name according to IUPAC nomenclature;

(g) where applicable, E-number of the additive as defined in the Union legislation on food additives;

(h) where applicable, a reference to similar authorised food enzymes;

(i) where applicable, the FL-number of a flavouring substance as defined in the Union legislation on flavourings;

(j) where applicable, the information on authorisations falling within the scope of Regulation (EC) No 1829/2003 of the European Parliament and of the Council of 22 September 2003 on genetically modified food and feed (12);

(k) table of content of the dossier;

(l) list of documents and other particulars; the applicant shall identify the number and titles of volumes of documentation submitted in support of the application; a detailed index with a reference to volumes and pages shall be included;

(m) list of the parts of the dossier to be treated as confidential; applicants shall indicate what they wish to be treated as confidential and give verifiable justification in accordance with Article 12 of Regulation (EC) No 1331/2008.

Article 5

General provisions on data required for risk assessment

1. The dossier submitted in support of an application for the safety evaluation of a substance shall enable a comprehensive risk assessment of the substance and shall permit verification that the substance does not pose a safety concern to consumers within the meaning of Article 6(a) of Regulation (EC) No 1332/2008, Article 6(1)(a) of Regulation (EC) No 1333/2008 and Article 4(a) of Regulation (EC) No 1334/2008.

2. The application dossier shall include all the available data relevant for the purpose of the risk assessment (i.e. full published papers of all references cited or full copies of the original unpublished studies).

3. The applicant shall take into account the latest guidance documents adopted or endorsed by the Authority available at the time of the submission of the application (The EFSA Journal).

4. The documentation on the procedure followed when gathering the data shall be provided, including the literature search strategies (assumptions made, key words used, databases used, time period covered, limitation criteria, etc.) and a comprehensive outcome of such search.

5. The safety evaluation strategy and the corresponding testing strategy shall be described and justified with rationales for inclusion and exclusion of specific studies and/or information.

6. The individual raw data of the unpublished studies and, where possible, of the published studies as well as the individual results of examinations shall be made available on request from the Authority.

7. For each biological or toxicological study, it shall be clarified whether the test material conforms to the proposed or existing specification. Where the test material differs from that specification, the applicant shall demonstrate the relevance of those data to the substance under consideration.

Toxicological studies shall be conducted in facilities which comply with the requirements of Directive 2004/10/EC of the European Parliament and of the Council or, if they are carried out outside the territory of the Union, they shall follow ‘the OECD Principles of Good Laboratory Practice’ (GLP). The applicant shall provide evidence to demonstrate that those requirements are complied with. For studies not conducted according to standard protocols, data interpretation, as well as a justification on their appropriateness for the risk assessment, shall be provided.

8. The applicant shall propose an overall conclusion on the safety of the proposed uses of the substance. The overall evaluation of potential risk to human health shall be made in the context of known or likely human exposure.

Article 6

Specific data required for risk assessment of food additives

1. In addition to data to be provided pursuant to Article 5, information shall be provided on:

(a) the identity and characterisation of the additive, including the proposed specifications and analytical data;

(b) where applicable, the particle size, particle size distribution and other physicochemical characteristics;

(c) the manufacturing process;

(d) presence of impurities;

(e) the stability, reaction and fate in foods to which the additive is added;

(f) where applicable, the existing authorisations and risk assessments;

(g) proposed normal and maximum use levels in the food categories mentioned in the Union list, or in a newly proposed food category, or in a more specific foodstuff belonging to one of these categories;

(h) a dietary exposure assessment;

(i) the biological and toxicological data.

2. As regards to the biological and toxicological data, referred to in point (i) of paragraph 1, the following core areas shall be covered:

(a) toxicokinetics;

(b) subchronic toxicity;

(c) genotoxicity;

(d) chronic toxicity/carcinogenicity;

(e) reproductive and developmental toxicity.

Article 7

Data required for risk management of food additives

1. The dossier submitted in support of an application shall include the information necessary to verify whether there is a reasonable technological need that cannot be achieved by other economically and technologically practicable means and whether the proposed use does not mislead the consumer within the meaning of points (b) and (c) of Article 6(1) of Regulation (EC) No 1333/2008.

2. In order to ensure the verification referred to in paragraph 1, appropriate and sufficient information shall be provided on:

(a) the identity of the food additive, including reference to the existing specifications;

(b) the function and technological need for the level proposed in each of the food categories or products for which authorisation is requested and an explanation that this can not be reasonably achieved by other economically and technologically practical means;

(c) the investigations on the efficacy of the food additive for the intended effect at the use level proposed;

(d) advantages and benefit for the consumer. The applicant shall take into account the requirements laid down in Article 6(2) of Regulation (EC) No 1333/2008;

(e) why the use would not mislead the consumer;

(f) proposed normal and maximum use levels in the food categories mentioned in the Union list, or in a newly proposed food category, or in a more specific foodstuff belonging to one of these categories;

(g) the exposure assessment, based on normal and maximum intended use for each of the categories or products concerned;

(h) the amount of the food additive present in the final food as consumed by the consumer;

(i) analytical methods allowing the identification and quantification of the additive or its residues in food;

(j) where applicable, the compliance with the specific conditions for sweeteners and for colours as laid down in Articles 7 and 8 of Regulation (EC) No 1333/2008.

Article 8

Specific data required for risk assessment of food enzymes

1. In addition to data to be provided pursuant to Article 5, information shall be provided on:

(a) name(s), synonyms, abbreviations and classification(s);

(b) Enzyme Commission Number;

(c) the proposed specifications, including the origin;

(d) the properties;

(e) the reference to any similar food enzyme;

(f) the source material;

(g) the manufacturing process;

(h) the stability, reaction and fate in foods in which the food enzyme is used;

(i) where applicable the existing authorisations and evaluations;

(j) the proposed uses in food and, where applicable, the proposed normal and maximum use levels;

(k) the dietary exposure assessment;

(l) the biological and toxicological data.

2. As regards to the biological and toxicological data, referred to in point (1) of paragraph 1, the following core areas shall be covered:

(a) subchronic toxicity;

(b) genotoxicity.

Article 9

Data required for risk management of food enzymes

1. The dossier submitted in support of an application shall include the information necessary to verify whether there is a reasonable technological need and whether the proposed use does not mislead the consumer within the meaning of points (b) and (c) of Article 6 of Regulation (EC) No 1332/2008.

2. In order to ensure the verification referred to in paragraph 1, appropriate and sufficient information shall be provided on:

(a) the identity of the food enzyme, including reference to the specifications;

(b) the function and technological need, including a description of the typical process(es) in which the food enzyme may be applied;

(c) the effect of the food enzyme on the final food;

(d) why the use would not mislead the consumer;

(e) the proposed normal and maximum use levels where applicable;

(f) the dietary exposure assessment, as described in the Authority’s guidance document on food enzymes (13).

Article 10

Specific data required for risk assessment of flavourings

1. In addition to data to be provided pursuant to Article 5, information shall be provided on:

(a) the manufacturing process;

(b) specifications;

(c) where applicable, information on particle size, particle size distribution and other physicochemical characteristics;

(d) where applicable the existing authorisations and evaluations;

(e) the proposed uses in food and proposed normal and maximum use levels in the categories according to the Union list or in a more specified type of product within the categories;

(f) the data on dietary sources;

(g) the dietary exposure assessment;

(h) the biological and toxicological data.

2. As regards to the biological and toxicological data, referred to in point (h) of paragraph 1, the following core areas shall be covered:

(a) examination for structural/metabolic similarity to flavouring substances in an existing flavouring group evaluation (FGE);

(b) genotoxicity;

(c) subchronic toxicity, where applicable;

(d) developmental toxicity, where applicable;

(e) chronic toxicity and carcinogenicity data, where applicable.

Article 11

Data required for risk management of flavourings

The dossier submitted in support of an application shall include the following information:

(a) the identity of the flavouring, including reference to the existing specifications;

(b) organoleptic properties of the substance;

(c) the proposed normal and maximum use levels in the food categories or in a more specific food belonging to one of these categories;

(d) the exposure assessment, based on normal and maximum intended use for each of the categories or products concerned.

CHAPTER III

ARRANGEMENTS FOR CHECKING THE VALIDITY OF AN APPLICATION

Article 12

Procedures

1. On receipt of an application the Commission shall without delay verify whether the food additive, food enzyme or flavouring falls within the scope of the appropriate sectoral food law and whether the application contains all the elements required under Chapter II.

2. Where the application contains all the elements required under Chapter II, the Commission shall, where necessary, request the Authority to verify the suitability of the data for risk assessment in accordance with the scientific opinions on data requirements for the evaluation of substance applications and to prepare, if appropriate, an opinion.

3. Within 30 working days following the receipt of the Commission’s request, the Authority shall inform the Commission by letter about the suitability of the data for risk assessment. If the data is considered suitable for risk assessment, the evaluation period referred to in Article 5(1) of Regulation (EC) No 1331/2008 shall begin from the date when the Authority’s letter is received by the Commission.

However, in accordance with point (a) of the second subparagraph of Article 17(4) of Regulation (EC) No 1332/2008, in the case of establishment of the Union list of food enzymes, Article 5(1) of Regulation (EC) No 1331/2008 shall not apply.

4. In case of an application to update the Union list of food additives, food enzymes or flavourings, the Commission may request additional information from the applicant on matters regarding the validity of the application and inform the applicant of the period within which that information shall be provided. In the case of applications submitted in compliance with Article 17(2) of Regulation (EC) No 1332/2008, the Commission shall determine that period together with the applicant.

5. When the application does not fall within the appropriate sectoral food law or when it does not contain all the elements required under Chapter II or when the Authority considers that the data for risk assessment are not suitable, the application shall be considered as not valid. In such a case the Commission shall inform the applicant, the Member States and the Authority indicating the reasons why the application is considered not valid.

6. By way of derogation from paragraph 5, an application may be considered as valid even if it does not contain all the elements required under Chapter II, provided that the applicant has submitted verifiable justification for each missing element.

CHAPTER IV

OPINION OF THE AUTHORITY

Article 13

Information to be included in the opinion of the Authority

1. The opinion of the Authority shall include the following information:

(a) the identity and characterisation of the food additive, food enzyme or flavouring;

(b) the assessment of the biological and toxicological data;

(c) a dietary exposure assessment for the European population taking into account other possible sources of dietary exposure;

(d) an overall risk assessment establishing if possible and relevant a health-based guidance value, and highlighting uncertainties and limitations where relevant;

(e) when the dietary exposure exceeds the health-based guidance value identified in the overall risk assessment, the dietary exposure assessment of the substance shall be detailed, providing where possible the contribution to the total exposure of each food category or foodstuff for which the use is authorised or has been requested;

(f) conclusions.

2. The Commission may ask for more specific additional information in its request for an opinion of the Authority.

CHAPTER V

FINAL PROVISIONS

Article 14

Entry into force and application

This Regulation shall enter into force on the 20th day following its publication in the Official Journal of the European Union.

It shall apply from 11 September 2011.

This Regulation shall be binding in its entirety and directly applicable in all Member States. Done at Brussels, 10 March 2011. For the Commission The President José Manuel BARROSO

(1) OJ L 354, 31.12.2008, p. 1.

(2) OJ L 354, 31.12.2008, p. 16.

(3) OJ L 354, 31.12.2008, p. 7.

(4) OJ L 354, 31.12.2008, p. 34.

(5) http://www.efsa.europa.eu/en/scdocs/doc/1188.pdf

(6) http://www.efsa.europa.eu/en/scdocs/doc/1305.pdf

(7) http://www.efsa.europa.eu/en/scdocs/doc/1623.pdf

(8) OJ L 50, 20.2.2004, p. 44.

(9) OECD Series on Principles of Good Laboratory Practice and Compliance Monitoring. Number 1. OECD Principles on Good Laboratory Practice (as revised in 1997) ENV/MC/CHEM(98)17.

(10) http://www.efsa.europa.eu/en/efsajournal.htm

(11) http://ec.europa.eu/dgs/health_consumer/index_en.htm

(12) OJ L 268, 18.10.2003, p. 1.

(13) Guidance of EFSA prepared by the Scientific Panel of Food Contact Material, Enzymes, Flavourings and Processing Aids on the Submission of a Dossier on Food Enzymes. The EFSA Journal (2009) 1305, p. 1.