If conflicts arise in conjunction with the controls on foods and food contact materials, a legal remedy for the operator is either a second expert opinion or a counter sample. The statement by the other expert or the analysis result received from the counter sample can be presented to Customs’ Product Safety Unit in connection with the hearing. However, the expert statement or counter sample does not automatically cancel Customs’ own result.
If Customs is going to reject a lot with foodstuffs or food contact materials based on the control examinations and the operator has a different opinion about the results, the operator has the right to at least one, second expert opinion. The second expert refers to an expert chosen and acquired by the operator. In the statement, the expert can provide an assessment as to whether the sample was taken appropriately and whether the examinations were conducted correctly. The operator must inform the Customs Product Safety Unit at the time of the hearing if a second expert’s opinion is being prepared.
The right to a second expert opinion is an option when an official counter sample cannot be obtained from the import consignment. The possibility of a counter sample is strictly limited in legislation. The counter sample can e.g. be obtained in connection with sampling related to the control of certain poisons produced by mould spores, i.e. mycotoxins. The operator must always request the counter sample before Customs takes the control sample from the import consignment. Once the control examination has begun or the results have been obtained, it is no longer possible to take a counter sample. When the counter sample has been taken, it is released to the operator, who can have the sample examined at a competent laboratory of their choosing and at their own expense.
The operator is reminded of these legal remedies when the sampling decision is made. Customs' instructions are based on the instructions of the Finnish Food Authority, which outlines nationally how to interpret the regulation on official controls. The procedures are laid down in EU’s regulation on official controls of foodstuffs (2017/625) where Article 35 concerns a second expert opinion.
More information: The food and consumer goods control of Customs
