Nearly one quarter of the world’s population already eats insects. Yet, in the past they have not appeared on an European and Swiss dietary plan. Totally new to human consumption are some of the products of the innovative food industry. A company located in Silicon Valley, California, for example, sells “chicken meat” produced in their lab without any animal parts. These novel foods fall under the Swiss novel foods regime and reflect a trend towards more sustainable and healthy food products.
Novel foods are foodstuffs, which have not been used for human consumption to a significant degree in Switzerland or any member state of the European Union before 15 May 1997. This definition is not very precise and leaves room for interpretation. In cases of doubt regarding the nature of foodstuffs, food manufacturers will have to consult with the Federal Food Safety and Veterinary Office as to whether a specific foodstuff falls under the definition of novel foods and consequently, whether they have to comply with the special regulations on novel foods.
Within the framework of the revision of the Swiss food legislation also the novel foods regime has been revised and entered into force on 1 May 2017. The revision aims to provide a high level of protection of the health of consumers, to protect consumers from deception and to reduce trade barriers, especially with the European Union. Though, it is interesting to note that the respective changes in the European regulation of novel foods will only enter into force on 1 January 2018.
Up to now all foodstuffs, which were not explicitly mentioned in the Swiss food regulations, were subject to permit. Under the new Swiss food legislation all foodstuffs may be marketed if they are safe and comply with the legal requirements. However, this is not the case for novel foods. Whoever wants to sell novel foods has to verify whether the regulation on novel foods mentions the same as novel food which may be brought to the market. Firstly, this is the case for certain novel foods with a market approval in the European Union. The same will automatically be extended to Switzerland. Excepted from this facilitation are genetically altered foodstuffs. Secondly, unlike the European Union, the Swiss novel foods regime provides for a widely noted market approval regarding three specific insect species, namely Tenebrio molitor in larval stage (flour worm), Acheta domesticus in adult form (cricket) and Locusta migratoria in adult form (European migratory locust). Anyone may sell them in whole, chopped up or grinded without obtaining any additional authorisation after 1 May 2017. However, for reasons of food safety and consumer protection, the production of food containing these insects has to fulfil additional conditions. Inter alia an appriopriate production process has to ensure complete inactivation of all vegetative microbes. One of the big Swiss retail merchants has announced to offer variations of insect burgers and meatballs. Though, it appears that due to these additional legal restrictions the retail merchant was not yet able to find a suitable supplier.
If a novel food is not mentioned as excepted from the approval procedure, the provider has to apply for an authorisation from the Federal Food Safety and Veterinary Office and show, amongst other things, that the novel food is not detrimental to consumer’s health. In the European Union, under the new novel foods system, all authorisations will be industry wide. In Switzerland only the marketing authorisation for so-called traditional novel foods will be industry wide. Traditional novel foods are defined as foods, which are of animal or vegetal origin (e.g. extracted or produced from insects, algae or an exotic root) and have a history of safe food use in a country other than Switzerland or a member state of the European Union. All other novel foods are non-traditional novel foods (e.g. the “chicken meat” mentioned at the start of this article).
As a rule, the development of non-traditional novel foods involves years of substantial research and respective investments. Therefore, the company applying for a marketing authorisation for non-traditional novel food will receive an exclusive authorisation for a duration of five years. The legislator’s intention is to encourage innovation in the field of novel foods by providing for a five-year exclusivity. During this period, the applicant has the possibility to limit the degree to which the content of the marketing authorisation is accessible to the public. After this five-year period, the Swiss authorities have the right to decide in favour of an industry wide authorisation and include the same in the list of authorised novel foods. In certain cases this might lead to the publication of valuable proprietary information. Five years are a rather short period to obtain a return on one’s investments. Food business operators will have to consider additional patent protection for their innovation. However, when doing so, they will have to ensure that the patent specification contains no unnecessary disclosure of manufacturing know-how.