Commission Implementing Regulation (EU) 2021/1974 of 12 November 2021 authorising the placing on the market of dried fruits of Synsepalum dulcificum as a novel food under Regulation (EU) 2015/2283 of the European Parliament and of the Council, and amending Commission Implementing Regulation (EU) 2017/2470 (Text with EEA relevance)

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to Regulation (EU) 2015/2283 of the European Parliament and of the Council of 25 November 2015 on novel foods, amending Regulation (EU) No 1169/2011 of the European Parliament and of the Council and repealing Regulation (EC) No 258/97 of the European Parliament and of the Council and Commission Regulation (EC) No 1852/2001 ¹, and in particular Article 12 thereof,

Whereas:

• (1) Regulation (EU) 2015/2283 provides that only novel foods authorised and included in the Union list may be placed on the market within the Union.

• (2) Pursuant to Article 8 of Regulation (EU) 2015/2283, Commission Implementing Regulation (EU) 2017/2470 ² establishing a Union list of authorised novel foods was adopted.

• (3) On 14 November 2018, the company Medicinal Gardens S.L. (‘the applicant’) submitted an application to the Commission in accordance with Article 10(1) of Regulation (EU) 2015/2283 to place dried fruits of Synsepalum dulcificum on the Union market as a novel food. The application requested for dried fruits of Synsepalum dulcificum to be used in food supplements as defined in Directive 2002/46/EC of the European Parliament and of the Council ³ at the maximum intake level of 0,9 g/day, the target population being the general adult population with the exception of pregnant and lactating women.

• (4) The applicant also made a request to the Commission for the protection of proprietary scientific data for a number of studies submitted in support of the application, namely compositional studies ⁴, acute oral toxicity study in rats ⁵, bacterial reverse mutation tests ⁶, in vivo mammalian erythrocyte micronucleus test ⁷, in vitro mammalian cell micronucleus test ⁸, 90-day repeated dose oral toxicity study with a 14-day recovery period ⁹, and a sensory study ¹⁰.

• (5) In accordance with Article 10(3) of Regulation (EU) 2015/2283, the Commission consulted the European Food Safety Authority (‘the Authority’) on 25 March 2019, asking it to provide a scientific opinion by carrying out a safety assessment for dried fruits of Synsepalum dulcificum as a novel food.

• (6) On 27 April 2021, the Authority adopted a scientific opinion on the safety of dried fruits of Synsepalum dulcificum as a novel food ¹¹, in accordance with Article 11 of Regulation (EU) 2015/2283.

• (7) In its opinion, the Authority did not establish the safety of dried fruits of Synsepalum dulcificum used in food supplements intended for adults at the maximum intake level of 0,9 g/day as proposed by the applicant because the intake would exceed the level which is considered safe (10 mg/kg bw per day). However, the Authority concluded that dried fruits of Synsepalum dulcificum is safe for adults when added to food supplements at a maximum daily dose of 0,7 g/day which corresponds to the safe level of intake for an adult person with a default body weight of 70 kg. Therefore, the opinion of the Authority gives sufficient grounds to establish that dried fruits of Synsepalum dulcificum at a maximum daily dose of 0,7 g/day complies with Article 7, points (a) and (b) and Article 12(1) of Regulation (EU) 2015/2283.

• (8) The Authority in its opinion, using a weight of evidence approach on the basis of in silico protein sequence homology analyses between miraculin and the peanut proteins, and the results of a preliminary in vitro enzyme-linked immunosorbent assay (‘ELISA’) screening experiment, identified a potential for cross-reactivity between dried fruits of Synsepalum dulcificum and peanuts. However, additional in vivo experimental or epidemiological evidence normally needed to confirm or exclude the likelihood that the identified potential cross-reactivity may manifest itself in real life, is lacking. Taking the lack of such evidence together with the available in vitro data showing that miraculin will be rapidly and completely broken down after ingestion, the Commission considers that at present the potential of dried fruits of Synsepalum dulcificum to cause cross-reactivity to peanuts is unlikely to manifest itself in real life and consequently no specific labelling requirement should be included in the Union list of authorised novel foods in this regard.

• (9) In its opinion, the Authority noted that its conclusion on the safety of the novel food was based on the compositional studies, the acute oral toxicity study in rats, the two bacterial reverse mutation tests, the in vivo mammalian erythrocyte micronucleus test, the in vitro mammalian cell micronucleus test, and the 90-day repeated dose oral toxicity study with a 14-day recovery period. It also noted that it could not have reached that conclusion without the data from the unpublished reports of the studies contained in the applicant’s file.

• (10) The Commission requested the applicant to further clarify the justification provided with regard to their proprietary scientific claim over those studies and to clarify their claim to an exclusive right of reference to those studies, as referred to in Article 26(2)(b) of Regulation (EU) 2015/2283.

• (11) The applicant declared that they held proprietary and exclusive right of reference to the compositional studies, the acute oral toxicity study in rats, the two bacterial reverse mutation tests, the in vivo mammalian erythrocyte micronucleus test, the in vitro mammalian cell micronucleus test, and the 90-day repeated dose oral toxicity study with a 14-day recovery period at the time they submitted the application and that therefore third parties cannot lawfully access, use or refer to those studies.

• (12) The Commission assessed all the information provided by the applicant and considered that the applicant has sufficiently substantiated the fulfilment of the requirements laid down in Article 26(2) of Regulation (EU) 2015/2283. Therefore, the specific studies on the compositional studies, the acute oral toxicity study in rats, the two bacterial reverse mutation tests, the in vivo mammalian erythrocyte micronucleus test, the in vitro mammalian cell micronucleus test, and the 90-day repeated dose oral toxicity study with a 14-day recovery period, contained in the applicant’s file, on which the Authority based its conclusion on the safety of the novel food and without which it could not have assessed the novel food, should not be used for the benefit of any subsequent applicant for a period of 5 years from the date of entry into force of this Regulation. Accordingly, only the applicant should be authorised to place dried fruits of Synsepalum dulcificum on the market within the Union during that period.

• (13) However, restricting the authorisation of dried fruits of Synsepalum dulcificum and the reference to the studies contained in the applicant’s file for the sole use of the applicant does not prevent other applicants from applying for an authorisation to place on the market the same novel food, provided that their application is based on legally obtained information supporting such an authorisation.

• (14) The Annex to Implementing Regulation (EU) 2017/2470 should therefore be amended accordingly.

• (15) The measures provided for in this Regulation are in accordance with the opinion of the Standing Committee on Plants, Animals, Food and Feed,

HAS ADOPTED THIS REGULATION:

Article 1

Company: Medicinal Gardens S.L.;

Address: Marqués de Urquijo 47, 1° D, Office 1, Madrid, 28008, Spain,

is authorised to place on the market within the Union the novel food referred to in paragraph 1, unless a subsequent applicant obtains authorisation for the novel food without reference to the data protected pursuant to Article 2 of this Regulation or with the agreement of Medicinal Gardens S.L.

Article 2

The studies contained in the application file on the basis of which the novel food referred to in Article 1 have been assessed by the Authority, claimed by the applicant as proprietary and without which the novel food could not have been authorised, shall not be used for the benefit of a subsequent applicant for a period of 5 years from 5 December 2021 without the agreement of Medicinal Gardens S.L.

Article 3

The Annex to Implementing Regulation (EU) 2017/2470 is amended in accordance with the Annex to this Regulation.

Article 4

This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, 12 November 2021.

For the Commission

The President

Ursula VON DER LEYEN

ANNEX

The Annex to Implementing Regulation (EU) 2017/2470 is amended as follows:

• (1) in Table 1 (Authorised novel foods), the following entry is inserted:

• (2) in Table 2 (Specifications), the following entry is inserted: