Danish Marmite ban – not Pia Kjærsgaard’s next populist plan to keep foreigners away

Today’s Guardian has the story that Denmark is to ban Marmite. As the FT’s Stanley Pignal quipped on Twitter, is this the next step (after new customs controls, despite Schengen) from Denmark’s populist Dansk Folkeparti to keep foreigners away by banning their foods?

While the idea of Pia Kjærsgaard lobbing jars of Marmite across the border is an amusing one, the case is an interesting matter of EU versus national law, and that law is not on Copenhagen’s side.

Essentially EU food law is supreme over national food law, and has been for years in the EU’s single market. This means that a product that is safe for sale in one EU Member State is allowed to be sold in other Member States. This is the reason why France, who had banned Red Bull, is now obliged to allow it to be sold.

The Danish Marmite case also has parallels with a case from 2008 when a UK firm based in Barnsley used EU law to export baguettes to France. In that circumstance French bread law prevented the use of hydrogenated fats in baking, while EU law did not prevent this, allowing the UK firm to export. The Danish Marmite case is the same. Even if the 2004 Danish law mentioned in The Guardian’s article did rule the yeast spread to be unsafe, since it is still legal for sale in the UK and legal under EU law there should be nothing that the officials from the Danish Veterinary and Food Administration can do about it.

If the folks from Abigail’s Food Store in Copenhagen want to keep stocking Marmite they should explain this Barnsley baguette case to the Danish authorities, and might – eventually – have to take a case before the European Court of Justice, but the chances of winning that case would be very high.

In addition to the main gist of this story, I have searched to check what derogations Denmark has from EU food law, and have found this page from the Danish Parliament. The only cases where Denmark is allowed to impose tougher standards is over the nitrite and nitrate content of foods but, as far as the ingredients of Marmite show, this should not be an issue here, and The Guardian story states the reason is the vitamin supplement, not nitrite and nitrate.

[UPDATE 25.5.11 – 0100]
A very similar issue has been ruled upon by the ECJ in 2003 in C-192/01. That case ruled against Denmark and in favour of free movement of products with vitamin supplements. So what’s different this time? In comparison to the anti-EU rubbish being spouted on politics.ie it would seem more and more likely that it will be EU law that will allow Marmite exports to Denmark to continue.

[UPDATE 25.5.11 – 1400]
This gets more and more complex. The line from the Danish government is that there is no ban on Marmite in Denmark, just a ban on marketing it. Selling Marmite in a shop or online is however encompassed in this definition of marketing, so – in practice if not legally – this is a ban on sales of Marmite. Different national registration systems for fortified foods are allowed under EU law (see paragraph entitled Notification/registration requirement here). Gaining this notification in Denmark can take up to 6 months, and the procedure is here, of course with no guarantee of its success.

So there folks, in all of its legal complexity, is the answer. This has taken debate on Twitter and e-mail, and face to face discussions in Brussels, to finally solve, and demonstrates the tremendous complexity of trying to accurately report on any EU matter!

[UPDATE 25.5.11, 1420]
The Danish Food And Veterinary Administration now has released a statement explaining all of this. No ban on Marmite, but a ban (for now, until an application) on selling or marketing it. Work that one out.

[UPDATE 27.5.11, 0830]
If you want more on the legality or not of the Marmite ban, see this excellent post by Head of Legal. He’s also far too kind about this blog. Jacob Christensen also has a Danish perspective.