Two subsidiaries of Kerry Group are taking a legal action against the European Commission over its decision in 2024 to introduce a phased ban of several smoke flavourings on grounds of public health.
The Court of Justice of the EU is to hear an application on Wednesday from US and British subsidiaries of the Irish food ingredients multinational to annul the decision taken by the Commission not to renew the authorisation of some smoke flavourings.
The decision followed a review of the flavourings by the European Food Safety Authority in November 2023.
However, Kerry Inc - based in Wisconsin - and Kerry Ingredients (UK) Ltd - based in Bristol - claim the Commission and the EFSA failed to assess whether Kerry's products and their intended use present risks to human health.
The EFSA assessment of eight smoke flavourings now subject to a ban found that six flavourings posed significant genotoxicity risks (damage to the genetic material of cells) while two others also raised concerns due to insufficient safety data.
The EFSA said it could not rule out that the smoke flavourings could cause damage to DNA which could increase the risk of developing conditions like cancer and inherited diseases.
The research found evidence that smoke flavourings - which are used as an alternative to the traditional smoking process - often contain polycyclic aromatic hydrocarbons which are known carcinogens produced by the wood-burning process.
However, the Kerry Group companies claim the Commission and the EFSA committed "manifest errors of assessment" by relying on a mere comparison with a generic, non-chemical specific threshold instead of taking into account the results of studies by the applicants which they claim consistently demonstrate that their products do not pose a risk to human health.
They argue the genotoxicity assessment conducted by the EFSA is "contrary to the principle of scientific excellence."
The Kerry Group companies claim the Commission failed to take into account other legitimate factors such as the health effects of "the unavoidable return to traditional smoking."
They are also pleading that the Commission's action violates the principle of non-discrimination by only establishing an authorisation regime for smoke flavouring products and not for traditional smoking.
Lawyers for the applicants also argue that the Commission failed to provide adequate reasoning for its decision as they pointed out the contested decision contains only nine paragraphs and is "less than two pages long."
Smoke flavourings are regularly contained in a range of meat, fish, snacks, cheese, dairy products, ready-to-eat meals and sauces.
The ban on the use of eight specific smoke flavourings is due to come into effect from July 1, 2026 in relation to their use for products such as crisps and sauces.
They will be prohibited from use in other foodstuffs including smoked meats, fish and cheeses from July 1, 2029.
