Marketing of innovative and novel food since May 1, 2017
The fully revised Federal Act on Foodstuffs and Utility Articles (AS 2017 249) entered into force on May 1, 2017. The food industry is granted more liberties, yet also more responsibilities at the same time. The revision also aligns its regulations in Switzerland with those of the EU, which reduces trade barriers.
An important change is the abolition of the so-called «positive principle». So far, the marketing of foodstuffs not mentioned in food law required a permit. According to the new law, foodstuffs that have not been expressly permitted can be sold and traded without permits provided they are safe and comply with certain requirements against consumer deception. This change promotes innovation as new products are coming to market faster and administrative hurdles are falling.
However, in order not to jeopardize consumers by allowing any new foodstuffs to enter the market without prior authorization and to comply with EU standards, certain new foodstuffs that bear a potential risk will require a so-called «novel food» authorization. Novel food includes foodstuffs that were not used broadly as an alimentary component on the Swiss market before 1997 (the year the Novel Food Regulation [Regulation (EC) 258/97] of the EU came into force), foodstuffs containing nano material as well as foodstuffs gained from cloned animals (not their offspring). Extraction solvents, food enzymes, food additives and aromas do not qualify as novel foods and do not require authorization. The authorization requirements for genetically modified foodstuffs, additives and processing aids continue to be dealt with by the legislation on genetically modified organisms (Gene Technology Act, Release Ordinance).
Traditional foodstuffs gained from primary production in foreign countries shall be subject to a facilitated authorization. Making them subject to the full authorization process would lead to a discrimination of, for example, export countries providing Switzerland with exotic fruits. Such fruits were not imported on a large scale before 1997 but have been subject to a substantial import increase over the last two decades. Certain exotic fruits would technically classify as novel foods, however, requiring a full authorization process would be disproportionate.
The Swiss authorization system provides for more protection of trade secrets than the one of the EU, as the Swiss authorizations are generally granted on an individual basis and cannot be used by other market players. However, authorizations are only granted for five years. After that, they are added to an annex of the Novel Food Regulation and can be used by everyone, permitting other players to benefit from the innovations of others.