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Buckwheat and spermidine, a novel food for the EU Court of Justice

The EU Court of Justice – in line with the Federal Ministry of Social Affairs, Health, Care and Consumer Protection of Austria – qualifies as novel foods buckwheat sprouts produced in an aqueous solution rich in spermidine (1,2).

A decision that is not at all obvious, given that buckwheat boasts an important tradition of consumption in the European Union. The cultivation of its shoots – equally traditional – is however in this case qualified as 'innovative'.

1) Buckwheat and its sprouts, the tradition of consumption

Buckwheat it is a food of Asian origin, as we have seen, with a long history and tradition of consumption also in Europe, especially in Italy. (3) It is mainly consumed in the form of achene (fruit) and can also be used as an ingredient in processed products gluten free intended for celiac subjects (e.g. bread, pasta, biscuits, meat analogues, tea, beer).

The sprouts of buckwheat – as well as those of many other plants, especially cereals and legumes – have in turn become part of European and Western traditions, thanks to the beneficial properties linked to the high concentration of nutrients and bioactive substances. Siberian buckwheat sprouts, in particular, are distinguished by the higher content of polyphenols and, in particular, of rutin, which is characteristic of this species. (4)

2) Spermidine

Spermidine it is a polyamine contained in many foods of vegetable origin (e.g. wheat germ, cereals and legumes, soy, citrus fruits) and of animal origin (e.g. meat, fish), as well as in mushrooms. The human body is able to synthesize it but its dietary intake remains important, especially for infants and the elderly who tend to lack it.

The polyamines (spermine, spermidine putrescine) have an important role in cell growth, RNA transcription, protein synthesis and modulation of the immune system. Their antioxidant and anti-inflammatory properties also play a role in the prevention of cardiovascular disease.

High levels of polyamines are on the other hand associated with tumor diseases, linked to alterations in their homeostasis. And there are no official recommendations for their daily intake in different age groups, although some authors have proposed levels well above the intake estimates made in several countries. (5)

3) Buckwheat and spermidine, agronomic and food innovations

In agronomy spermidine – in addition to being naturally present in buckwheat – has been tested as a semen treatment agent. Demonstrating the ability to increase tolerance to water stress, promote germination, antioxidant enzyme activity and proline content. (6)

The innovation subject of analysis Court of Justice of the European Union (EUCJ) consists in the germination of buckwheat achenes in solutions enriched in synthetic spermidine, to stimulate its bioaccumulation and produce a flour 'rich in' spermidine. In view of its use in the production of foods and food supplements thus enriched.

4) Dispute in Austria

A producer of dietary supplements, TLL, sued the competitors Optimize Health for unfair competition, at the Civil Court of the Land of Graz (Austria). Denouncing the use of germinated buckwheat flour as above – according to him, a novel foods unauthorized pursuant to reg. EU 2015/2282 – to produce a food supplement rich in spermidine. TLL in turn realizes a food supplement rich in spermidine which however it extracts, with a lower yield, from unsprouted wheat germ.

The Austrian judge it therefore suspended the proceeding to submit to the Court of Justice a series of questions for a preliminary ruling, of which the first absorbs the others. The main question is therefore, in summary, 'whether buckwheat sprout flour is a novel food belonging to the category of novel foods consisting of, isolated from or obtained from plants not significantly consumed before 15 May 1997'. (7)

5) Decision of the Court of Justice

Court of Justice of the European Union (EUCJ) - with judgment of 25 May 2023, in case C-141/22 - confirmed that buckwheat flour derived from achenes sprouted in solutions enriched in synthetic spermidine qualifies as novel foodsfor three essential reasons:

  • the procedure used should not be understood as a cultivation technique, but as a process of enrichment of buckwheat with spermidine,
  • this process determines a o, which among other things concerns a plant,
  • no documented evidence of a history of use and consumption has been gathered in the form presented as of May 15, 1997, or for at least 25 years. (8)

6) novel food, outcome of the consultation in Austria

The manufacturer of the food supplement based on spermidine-germinated buckwheat, Optimize Health, had in turn activated a consultation procedure in Austria regarding its status di novel foods, pursuant to reg. (EU) 2018/456. (9) Belatedly and imprudently, since the product had already been placed on the market in the meantime. And the Federal Ministry of Social Affairs, Health, Care and Consumer Protection (BMSGPK) – ironically, a few days after the EUCJ ruling – provided a similar response, meanwhile published in the Novel Food Catalog.

The Austrian Ministry, in addition to the arguments emphasized by EUCJ, adds that spermidine acts as a biostimulant in the germination process and is absorbed by the achene to increase concentration. The use of spermidine and its salts (e.g. spermidine trichlorhydrate) as fertilizers or biostimulants in agriculture, however, is a practice without a 'significant industrial history' in the EU. And so, consequently, also the consumption of the products obtained from these practices.

7) Provisional conclusions

Nor buckwheat, neither its sprouts, nor spermidine and other traditionally extracted polyamines – with at least a 25-year documented history of use and consumption within the EU – qualify as novel foods.

The innovations of process must instead be carefully considered, in the light of the EUCJ ruling in question, whenever they involveo 'significant changes in the composition or structure of the food such as to affect its nutritional value, metabolism or content of undesirable substances' (EU reg. 2015/2283, article 4.2).

The extreme generality of the regulation in question also risks halting food innovation in the Old Continent, with particular regard to the use of enzymes and microorganisms for technological functions, such as for example the reduction of sugars in fruit juices. And the recent opinion of the European Commission, which in the example of fruit juices ruled out being novel foods, could be denied by EUCJ who remembers being the only official interpreter of EU rules. A reform of these rules is therefore necessary to ensure legal certainty. (10)

Dario Dongo and Andrea Adelmo Della Penna

Footnotes

(1) EU Court of Justice, judgment of 25 May 2023. TLL The Longevity Labs GmbH v Optimize Health Solutions mi GmbH and BM. Reference for a preliminary ruling from the Landesgericht für Zivilrechtssachen Graz. Case C-141/22. https://curia.europa.eu/juris/liste.jsf?language=en&td=ALL&num=C-141/22

(2) European Commission. Flour from buckwheat seedlings with a high spermidine content. Application for consultation to determine the status of a novel food, pursuant to Article 4(2) of the Regulation (EU) 2015/2283 of the European Parliament and of the Council of 25 November 2015 on novel foods. Austria - Federal Ministry of Social Affairs, Health, Care and Consumer Protection (BMSGPK) https://food.ec.europa.eu/system/files/2022-06/novel-food_consult-status_flour-buckwheat.pdf

(3) Dario Dongo, Andrea Adelmo Della Penna. Buckwheat, a resilient plant for gluten-free nutritionGIFT (Great Italian Food Trade). 5.6.23

(4) Suzuki et al. (2021) Breeding of Buckwheat for Usage of Sprout and Pre-Harvest Sprouting Resistance. Plants 10 (5): 997, https://doi.org/10.3390/plants10050997

(5) Munoz-Esparza et al. (2019) Polyamines in Food. Front. Nutr. 6: 108, https://doi.org/10.3389/fnut.2019.00108

(6) Reza Amerian et al. (2023) The effect of spermidine and melatonin on antioxidants enzymes, the amount of routine active ingredient and yield in Buckwheat (Fagopyrum esculentum Moench) under drought stress. Crop production 15 (4): 63-84, https://doi.org/10.22069/ejcp.2023.19969.2484

(7) Article 3(2)(a) of Regulation (EU) 2015/2283 sets out the definition of novel foods, together with a series of reference categories. In the reference case, the preliminary question is intended to ask the membership of the alleged novel foods to the category indicated in letter iv), i.e. 'food consisting of, isolated from or produced from plants or parts thereof, with the exception of food with a history of safe use as food in the Union and consisting of, isolated or produced from a plant or a variety of the same species obtained by: — traditional breeding practices used for food production in the Union before 15 May 1997, or — non-traditional breeding practices not used for food production in the Union before 15 May 1997 where these practices do not lead to significant changes in composition or structure of the food such as to affect its nutritional value, metabolism or content of undesirable substances'

(8) Reg. EU 2015/2283 refers only to the 'history of safe use as a food in a third country': […] attested by data relating to its composition and by experience of continued use, over a period of at least 25 years, in the usual diet of a significant number of people in at least a third country […].' The Advocate General noted that this concept is also applicable to the 'history of safe use as food within the Union', pursuant to article 3.2.a.iv of reg. EU 2015/2283

(9) Commission implementing Regulation (EU) 2018/456, on the procedural steps of the consultation process for determination of novel food status in accordance with Regulation (EU) 2015/2283

(10) Dario Dongo, Andrea Adelmo Della Penna. Horizon4Proteins. Protein research compared with EU policies and rulesGIFT (Great Italian Food Trade). 21.5.23

Andrea Adelmo Della Penna

Graduated in Food Technologies and Biotechnologies, qualified food technologist, he follows the research and development area. With particular regard to European research projects (in Horizon 2020, PRIMA) where the FARE division of WIISE Srl, a benefit company, participates.

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