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Inspection of production and sale of foodstuffs produced in households and sold from home

09/02/2014
 
  1. Definition of the activity “production and sale of foodstuffs produced in household and sold from home”  

Production of foodstuffs in household and subsequent sale thereof from home may not be connected to the primary production of foodstuffs for personal domestic use [Article 1 (2) (a) of the Regulation (EC) No. 852/2004 on hygiene of foodstuffs] or with the so-called domestic preparation of foodstuffs [Article 1 (2) (b) of this Regulation]. According to the quoted Regulation the goal in both cases is domestic consumption and production of foodstuffs in household and subsequent sale from home cannot be considered house consumption. In accordance with point (9) of recitals of this Regulation, the rules of EU "should not apply to primary production for private domestic use or domestic preparation of foodstuffs, manipulation with these foodstuffs or storage of the foodstuffs for private domestic use. In addition, the rules should only apply to businesses concept of which foresees a certain continuity of activities and a certain degree of organization". These requirements are not met in case of occasional manipulation, preparation, storage and serving foodstuffs by private persons at events such as church and school events or country (rural) markets [1] or in other situations, for example organized charitable events attended by volunteers and where food is occasionally prepared – these do not fall within the scope of the Regulation because they may not be considered “businesses” (see instructions for implementing certain provisions of the Regulation (EC) No. 852/2004).   
Also cases when a (primary) producer supplies small quantities of its own products from primary production to a final consumer or a local retail establishment which directly supplies these products to a final consumer, do not fall within production of foodstuffs in household that are subsequently sold from home [Article 1 (2) (c) of the Regulation No. 852/2004 and point (10) of the Preamble of this Regulation]. Despite the fact that the European legislation does not apply to these cases, Article 1 (3) of the Regulation (EC) No. 852/2004 foresees that the Member States shall set rules for these activities within their national regulations directed at achieving the goals of this Regulation. These rules that should further specify the term “small quantities” should be in accordance with Section 18 (1) (d) of the Act No, 110/1997 Coll., in the version in force as of 1 January 2015, laid down by a decree (they have not been set yet). In accordance with the instructions for implementing certain provisions of the Regulation (EC) No. 852/2004, the term "small quantities” should be understood in a sufficiently broad scope to allow farmers, among others, to sell their primary production products (vegetables, fruits, eggs, raw milk) directly to final consumers, for example directly in front of an establishment, on local markets or to local retail establishments and restaurants. This interpretation should also allow persons collecting wild growing products (e.g. wild mushrooms) to supply these products directly to final consumers, retail establishments or local restaurants.        
Baking cookies, bakery products, preparation of jams/marmalades or production of delicatessens is considered as production of foodstuffs in household connected to the subsequent sale of these products from home under the condition of a certain continuity of activity and a certain degree of organization. BA (binding approach) may also be applied to other not mentioned foodstuffs that are produced in household and subsequently sold from house directly or on markets. Until 31 December 2014 inspections will not be focused on production of food in households connected to offering refreshment consumed locally in order not to interfere with, in accordance with current legislation, the competence of public health protection bodies in accordance with Section 16 (1) (a) point 1 of the Act No. 110/1997 Coll., in the version in effect until 31 December 2014. From 1 January 2015 this BA shall also apply to situations when a producer producing foodstuffs in household will also operate a refreshment stand, this case will also fall within the competence of the Czech Agriculture and Food Inspection Authority. In this case this will be deemed production and placing food on the market within provision of catering services in accordance with Section 16 (1) (c) point 5 of the Act No. 110/1997 Coll., in the version in effect as of 1 January 2015. 
ANY AND ALL production of foodstuffs in household connected to the subsequent sale of these foodstuffs from home under the condition of a certain continuity of activity and certain degree of organization is deemed standard operation of a food business. A food business operator in accordance with Article 3 point 3 of the Regulation No. 178/2002 means “natural or legal entity responsible for fulfilling the requirements of food law in the food business it manages”. A food business is, in accordance with Article 3 point 2 of this Regulation “apublic or private establishment, profit or non-profit, performing activity related to any stage of production, processing and distribution of foodstuffs". From the meaning of these regulations and from the above quoted point (9) of the recitals of the Regulation No. 852/2004 it is possible to imply that it must involve an activity with a certain “continuity” and a “degree of organization”. Such activity can be identified as “systematic” within the intentions of the national Act No. 455/1991 Coll., on Trade Licensing, (cf. the Section 2 of this Act).  
The fact whether it is a systematic, continuous etc. activity shall be assessed individually taking all circumstances of a particular case into consideration. However, it is possible to proceed from the fact that a systematic activity is connected not only to frequency (periodical or aperiodic) but also to an intention to repeat this activity (this means that these are not only permanent activities performed five days in a week but also seasonal or repeated in case of a certain opportunity, for example Christmas baking of cookies – however, it is necessary to keep in mind the aforementioned exceptions from application of the Regulation No. 852/2004, for example charitable events, country (rural) markets). One-off activities, whose realization or whose final goal achievement requires a longer period (for example drying fruits) may be assessed as systematic activity as well. Other one-off activities or occasional activities or random activities are therefore not systematic activities. Whether this includes operating a food business or not can only be finally and bindingly assessed by a court in eventual court proceedings.  
  1. Role of trade license in inspection activities of Czech Agriculture and Food Inspection Authority (CAFIA)  

Granting a trade license (hereinafter TL) is not within the competence of CAFIA but within the competence of trade licensing offices (hereinafter TLO).  
It is not decisive whether the inspected person has TL or not, because if it meets the definition of a food business operator, it is subject to CAFIA supervision. At www.rzp.cz it is possible to verify the authenticity of TL in the Trade Register. 
CAFIA Inspectorates will require TL from inspected producers and sellers of foodstuffs produced in households and sold from home. In the event of obvious discrepancies or missing TL, these inspectorates will then inform in writing the competent TLO of these facts. 
  1. Registration of producer and seller of foodstuffs produced in household and sold from home

Registration of the entity (under the condition of a certain continuity of activity and certain degree of organization) producing foodstuffs in household and subsequently selling the foodstuffs from home, is based on reporting obligation arising from Section 3 (1) (i) of the Act No. 110/1997 Coll., or from Article 6 (2) of the Regulation 852/2004.  
  1. Commissioning approval

Aspects related to commissioning approval are not essential in relation to place of business for CAFIA inspection, they will not be the subject of enforcement within inspections by Inspectorates, However, compliance with hygiene regulations, specifically in accordance with Article 4 (2) and Annex II chapter III to the Regulation No. 852/2004 laying down requirements, among others, on areas used in particular for private home where foodstuffs are regularly prepared for placing on market, shall be essential.
  1. Basic obligations of producer and seller of foodstuffs produced in household and sold from home

The basic obligations of producer and seller of foodstuffs produced in household and sold from home are based on the basic legal regulations related to producing and placing foodstuffs on the market.
Specifically, it is possible to draw attention to selected text from published list of manuals for good manufacturing practice and hygiene practice (available at www.eagri.cz):
  • Rules for good manufacturing and hygiene practice for bread producers; Rules for good manufacturing and hygiene practice for pasta producers; Rules for good manufacturing and hygiene practice for non-alcoholic beverages producers; Rules for good manufacturing and hygiene practice for production of cookies; Rules for good manufacturing and hygiene practice for fine bakery producers; Rules for good manufacturing and hygiene practice within delicatessen production, Rules for good manufacturing and hygiene practice for confectionery products; Rules for good manufacturing and hygiene practice – Sterilized vegetables and fruit (ČSN 56 9604); Rules for good manufacturing and hygiene practice – General principles of hygiene in foodstuffs (ČSN 56 9606); Rules for good manufacturing and hygiene practice – fruit pastes (ČSN 56 9607).  

Except for the quoted legislation requirements laid down in these manuals, these documents are not binding for a food business operator. However, good manufacturing and hygiene practices represent a usual standard that should be complied with in the interest of the producer. 
  1. Internet sale

Concerning the production of foodstuffs in household connected with the subsequent sale of the foodstuffs from home under the condition of a certain continuity of activity and a certain degree of organization, IR (internal regulation) shall be standardly applied to the internet sale.
 

[1] Instructions for implementing the Regulation (EC) No. 852/2004 distinguish between sale on “local markets” which falls within the scope of this Regulation, and sale on “country (rural) markets" that has apparently social character (similarly as in the case of charitable events - country (rural) markets are mentioned in relation to charitable events) and therefore it does not fall within the scope of the Regulation (EC) No. 852/2004