Clear rules awaited on how and by whom controls must be carried out

Clear rules are needed on the methods and responsibilities of controls: who will be tasked with monitoring? And who will monitor the monitors?

With Recommendation (EU) 2022/1342 of 28 July 2022, the European Commission urged EU Member States to monitor levels of inorganic mercury and methylmercury in fish, crustaceans and molluscs from 2022 to 2025 (by which time, presumably, new rules will be issued).

What methylmercury is and why it matters

Methylmercury (CH₃Hg+, sometimes abbreviated “MeHg+”) is a highly toxic organometallic cation consisting of a methyl group (CH₃¯) bound to a mercury(II) ion. Being positively charged, methylmercury readily combines with anions such as chloride (Cl¯), hydroxide (OH¯) and nitrate (NO₃¯); it also shows strong affinity for sulphur-containing anions and, in particular, for the −SH group of the amino acid cysteine (C₃H₇NO₂S). Its high hazard also stems from the ease with which it spreads in the environment.

Referring, in particular, to Article 292 of the Treaty on the Functioning of the European Union, the Commission calls for broad-spectrum monitoring that includes all fish, crustacean and mollusc species representative of local consumption habits.

The recommendation, signed by the European Commissioner for Health and Food Safety, Stella Kyriakides, specifies that both farmed and wild-caught fishery products must be monitored.

National advice and communication duties

Member States are to develop “specific national advice” on the consumption of fishery products “in order to fully achieve the beneficial effects” associated with these foods “while at the same time limiting the risks due to mercury toxicity”.

Such “advice”, prepared at national rather than EU level, should help determine local consumption frequency of fishery products and provide a clear picture of the species consumed.

Further provisions are of particular interest to Food Business Operators (FBOs), i.e., the natural or legal persons responsible for ensuring that food law requirements are met in the food businesses under their control.

The recommendation states: “Member States, food business operators and other stakeholders shall continuously communicate the specific national advice to relevant healthcare professionals and consumers, cooperating with the consumer groups most at risk”.

Member States must also notify their “specific national advice” to both the European Commission and the European Food Safety Authority (EFSA), describing actions taken nationally to communicate that advice “to consumers as well as to relevant healthcare professionals”.

Without detailing respective scopes and limits, the Commission jointly recommends that Member States and FBOs report periodically to EFSA on total mercury and methylmercury in fishery products, separately for farmed and wild-caught items.

EFSA TWIs and balancing risks/benefits

The recommendation cites EFSA’s scientific opinion of 22 November 2012 on mercury and methylmercury in food, confirming the following Tolerable Weekly Intakes (TWI):

• inorganic mercury: TWI ≤ 4 µg Hg/kg body weight;
• methylmercury: TWI ≤ 1.3 µg Hg/kg body weight.

EFSA also found that dietary exposure at the 95th percentile is close to or above these TWIs across all age groups. High fish consumers — often including pregnant women — may ingest up to six times the TWIs. Foetuses are the most vulnerable group.

While recognising the extreme hazard of mercury, and especially methylmercury, EFSA nevertheless advises consideration of the benefits of fish and shellfish as high-quality protein sources, as reiterated in its opinion of 27 June 2014. EFSA notes that consuming 1–2 portions of fishery products per week, and up to 3–4 portions during pregnancy, is associated in some studies with better functional outcomes in children’s neurodevelopment than not consuming fish. Such intakes have also been associated with reduced coronary heart disease mortality in adults.

Conversely, on 19 December 2014 EFSA adopted a statement on the benefits of consuming fish and shellfish versus the risks from methylmercury in these foods, concluding that the benefits cannot be separated from the commitment to minimise the intake of species with high mercury content.

Practical implementation: who does what?

So far, there is little to object to in the Commission’s intentions and general principles. However, while it is reasonable that Member States should monitor mercury in fish, crustaceans and molluscs, how exactly should they do so in practice?

It is hard to square the logic whereby the EU — an organisation set up to “unite” Europe by harmonising laws and parameters — leaves it to individual States to decide how best to proceed on a sensitive dossier like mercury, and then relies on those same States’ data to compile a consolidated report and, in the longer term, draft binding legislation for all.

For example, who will carry out more frequent and stringent checks than those currently in place? In Italy, this should fall to the various local health authorities (ASL/USL/AUSL/ATS). The question is whether they can, given that in many cases staffing is below what their institutional mandate would require.

The wording “Member States, food business operators and other stakeholders” is also unsatisfactory, as if FBOs were a monolith under centralised direction — whereas in reality they are thousands of unrelated actors dealing with highly diverse, day-to-day complexities.

As for the “other stakeholders”, clarification would help: aquaculture producers, the fishing sector, food technologists, consumer associations…? Interpreted broadly in the food safety context, the list could quickly expand to the national health service, police units (NAS), regions, provinces, municipalities, local police and… just about anyone.

Another aspect needing clarity is oversight of the overseers: the Commission’s recommendation does not explicitly foresee a phase to verify and validate the data supplied by each State. Such a phase would be highly advisable, not only to confirm data accuracy but also to define uniform criteria and make national datasets interoperable and comparable.

None of this is meant as empty polemic. As sector professionals, we live this reality and know how hard it is to navigate even when EU rules are clear. Even then, Italy’s “system” can create a thicket of competence conflicts between national and local authorities, each protective of its remit — not to mention wildly divergent interpretations of the same legal text between regions, so that the same analytical results may be deemed acceptable in Lombardy but not in Campania, or vice versa.

Let’s be frank: the frequency of mercury testing in Italy is well below what would be useful and necessary — and the same goes for other heavy metals. Beyond Brussels’ courteous recommendations, it is time to tackle this dossier and increase sampling — not “because Europe asks”, but because it is genuinely needed.

Finally, the duties of FBOs involved in mercury monitoring must be clarified. Too often major civil and criminal liabilities linked to consumer health risks fall on FBOs without commensurate powers and prerogatives. In this case, for example, it would be desirable for FBOs to decide to test more frequently, matched by dedicated funding or targeted tax relief, to foster a virtuous cycle of controls rather than merely sanctioning insufficient sampling plans adopted solely to protect corporate assets.

In our view, the best path is to ask Brussels for precise, binding guidelines from the outset, including a mechanism to oversee Member State implementation and a clear roadmap. In the implementation phase, we would hope for a straightforward commitment by national institutions — no turf wars or “quicksand” — with clearly assigned tasks and prerogatives and, ideally, an active collaborative role for FBOs.

Carmine F. Milone

Sources:
https://eur-lex.europa.eu/legal-content/IT/TXT/PDF/?uri=CELEX:32022H1342&from=EN
https://www.efsa.europa.eu/en/efsajournal/pub/2985
https://www.efsa.europa.eu/it/efsajournal/pub/3761
https://www.efsa.europa.eu/en/efsajournal/pub/3982
https://eur-lex.europa.eu/legal-content/IT/TXT/PDF/?uri=CELEX:12012E/TXT
https://pubmed.ncbi.nlm.nih.gov/30659885/
https://www.mdpi.com/2305-6304/10/8/427/pdf