Regulation of EU Probiotics Legislative Approaches to Live Micro-Organisms Used in Foods

ELINOR MCCARTNEY Pen & Tec Consulting, Pl. Ausias March 1, 4th Floor, D01 08195 Sant Cugat del Vallès, Barcelona, Spain

Elinor MCCartney

Regulation of EU probiotics Legislative approaches to live micro-organisms used in foods

KEYWORDS: probiotics, EFSA, EU, food, legislation, novel

Probiotics in foods or food supplements are legally classed as ingredients in the EU and not subject to a pre- Abstractmarket safety assessment, unless novel. Nevertheless, food business operators must meet legal obligations in relation to safety, quality and the claims made on their products. This article summarises current legislation in relation to food probiotics, explains the background to EU (European Union) probiotic regulatory procedures, and highlights areas likely to change in the next decade. The influence of EFSA (European Food Safety Authority) opinions and guidance documents is discussed, particularly in relation to probiotic strain characterisation, antimicrobial resistance, QPS (qualified presumption of safety), interpretation of bacterial genomes and data required to support claims in relation to gut and immune function.

INTRODUCTION NOVEL FOOD PROBIOTICS

Surprisingly, probiotics are not defined in EU legislation, though Probiotic micro-organisms used as or in foods and food most regulators tacitly accept the World Health Organisation supplements are considered as food ingredients, and are not definition of“live micro-organisms, which, when administered subjected to a centralised pre-market safety assessment, unless in adequate amounts, confer a health benefit on the host”(1). novel. Determining the novelty or not of a probiotic microbial Despite the fact that probiotics have been used for millennia strain is sometimes a source of confusion. The novel foods in fermentation processes to produce foods, well before the regulation defines novelty as foods and food ingredients that science of microbiology was able to isolate, identify, or even were not used for human consumption to a significant degree visualise the micro-organisms responsible for the fermented food, within the Community prior to 15 May 1997 (3). In practice, it is the area of feed micro-organisms that has pioneered most the EU Commission and Member States have accepted that current EU approaches to probiotic strain characterisation and traditional micro-organisms used to ferment dairy and other safety. This is because feed scandals such as the “mad cow” foods in the EU are not novel, based on a 2002 publication epidemic (bovine spongiform encephalopathy) helped drive a by the International Dairy Federation (IDF) (4). This publication radical overhaul of EU food chain legislation, and spearheaded was updated in 2012 to include microbial strains used to a range of EU legislative acts, starting with a White Paper on produce more exotic fermented foods, for example soy Food Safety, published in 2000 (2). EFSA was established in 2002, fermented by Bacillus subtilis “natto” strains (5). The 2012 as a new, independent legal entity emanating from this White IDF publication coincides with the debated recast of the Paper on Food Safety. In the early 2000s, both EFSA and the EU novel foods regulation, expected to enter into force in 2016. Commission dealt with feed-related issues as a high priority. So, The recast regulation will allow traditional exotic foods to for example, although the animal health industry had started to enter the EU market via a simplified notification procedure, use live micro-organisms in feeds and drinking water in the 1980s, provided that notifiers can provide evidence that the exotic these were not considered by legislators as feed ingredients, foods were consumed safely in the country of origin by a but as feed additives, requiring a substantial registration dossier significant proportion of the population for at least 25 years prior to EU authorisation. In the 1980s and 1990s the EU’s SCAN prior to notification (6). The food industry is optimistic that EU (Scientific Committee on Animal Nutrition) carried out pioneering regulators will accept evidence such as the IDF bulletins or work on the characterisation, safety and efficacy of feed related publications as justification of exotic strain safety. An micro-organisms. Since 2002, the EFSA Feed Unit has built on interesting quirk of the novel foods regulation is that microbial SCAN’s lead and produced numerous opinions and several key strains which have not been used in or as foods are considered guidance documents covering various aspects of the safety, novel, even though wild-type strains are common in the gut characterisation and efficacy of probiotics for animals. Many of humans. Hence, Clostridium butyricum, a commensal of these approaches are now applied by EFSA across other anaerobe that produces butyric acid in the gut of humans, food chain scientific panels, and by European Member State was considered a novel food strain, though the species is not regulatory authorities. uncommon, even found in the faeces of premature infants (7).

10 Agro FOOD Industry Hi Tech - vol 25(6) - November/December 2014 The data requirements for the safety of a novel microbial strain updated annually by the EFSA Biohazard Panel, and applies to are challenging, requiring in the case of Clostridium butyricum, biological agents used by food and feed businesses (11). The effectively the full genome, a considerable classic toxicology basic principles of QPS are unambiguous identification of such package and solid evidence of lack of toxins, virulence factors biological agents at the highest appropriate taxonomic unit, and antimicrobial resistance (8). which are then “qualified” for safety. In the case of bacterial strains used in the food chain, the qualifiers are, predictably, absence of toxins and virulence factors, and absence of EFSA GUIDANCE DOCUMENTS ON MICROBIAL STRAIN SAFETY acquired antimicrobial resistance genes to clinically relevant antibiotics. In 2002, EFSA took over from the EU Commission’s scientific committees in all matters relating to food chain safety, EFSA on Bacillus safety including the safety of micro-organisms used in the food chain. Other initiatives of EFSA FEEDAP include the occasional EFSA guidance documents focus on regulated products, updates on the safety of Bacillus and related species, requiring a formal pre-market assessment of safety, quality and particularly with reference to toxigenic potential. The latest efficacy. Live micro-organisms subjected to such pre-market update, published in 2014, stimulated a considerable public evaluations include feed probiotics and some microbial strains response from food and feed business operators in the EU (12). used in plant protection products. However, whereas EFSA The problem was the basic difficulty of applyingin vitro tests focus on regulated products, EFSA guidance documents are to demonstrate conclusively that a given strain has toxigenic often applied to food micro-organisms by local Member State potential. For example haemolysis, proposed by EFSA as regulators, responsible for control of food businesses under an indicator of pathogenicity, proved to be widespread in the food hygiene regulation (9). Additionally, food business safe Bacillus strains, for example in Bacillus subtilis var. natto. operators may choose to adjust their stable of probiotic strains, Additionally, the strain proposed by EFSA as a negative control in accordance with EFSA guidance. was positive in the haemolysis test as defined by EFSA. Neither EFSA nor regulators are convinced of the value of alternative EFSA on antimicrobial resistance testing in vivo for toxigenic potential, especially in view of the EFSA have updated guidance on antimicrobial resistance drive to reduce, refine and replacein vivo laboratory animal several times since 2002, the latest version published in 2012 testing. For the time being, EFSA has deleted the requirement (10). In the latest version the EFSA FEEDAP panel state that: to test for haemolysis, and accepted the use of well-validated tests to demonstrate lack of potential to produce toxins and • Any bacterial strain carrying an intrinsic resistance to virulence factors, with a degree of flexibility to notifiers on the antimicrobial(s) presents a minimal potential for horizontal tests to be carried out. spread and thus, may be used as a feed additive; • Any bacterial strain carrying an acquired resistance to antimicrobial(s) that is shown to be due to chromosomal EFSA ON PROBIOTIC CLAIMS mutation(s) presents a low potential for horizontal spread and generally may be used as a feed additive; Since the safety and quality of most food probiotics is covered • Any bacterial strain carrying an acquired resistance to by general requirements of the food hygiene regulation, antimicrobial(s) that is shown to be due to the acquisition of and controlled by local Member State authorities, most food genetic determinant(s) presents the greatest potential for business operators have not had to defend microbial strain horizontal spread and should not be used as a feed additive; safety through an EFSA evaluation. However, the nutrition and • In the absence of information on the genetic nature of a health regulation has challenged the food probiotic industry to demonstrated resistance, the strain should not be used as justify all claims made to consumers (13). Indeed, claims made a feed additive. to consumers in relation to food products is a key element of the nutrition and health claims regulation, closely linked to the Whereas EFSA’s general principles on antimicrobial resistance control of fraud and misleading information to consumers. A are well-accepted, feed business operators have found the third objective of this regulation is to encourage healthy dietary latest guidance challenging to fulfil, since it is often difficult to habits and thus help to improve the health of EU citizens. For identify the genetic nature of resistance, especially when the this reason nutritional and health claims are restricted to foods resistance is low level, for example within two dilutions of EFSA’s that meet certain “healthy” criteria. Whereas most probiotic conservative microbiological cut-off values. Another problem foods and beverages will have no problems in meeting nutrient is that the EFSA guidance is based on published data, derived profiles, applicants have been frustrated at the difficulty from studies carried out in a number of different laboratories, of obtaining health claims for food probiotics in the EU. For often using slightly different methodologies that can give rise to example, only a single probiotic health claim has succeeded significant inter-laboratory errors. Lastly, microbial taxonomy is to date, in relation to improvement of lactose digestion after changing rapidly according to modern molecular techniques, consumption of live yoghurt cultures. The live yoghurts in and the EFSA guidance is based on genus or species taxons, question should contain at least 108 CFU (colony-forming units) not the taxonomy of different subspecies within each species. per gram of Lactobacillus delbreuckii subspecies bulgaricus Hence, there may be significant variations in minimum and Streptococcus thermophilus (14). Interestingly this single inhibitory concentrations from subspecies to subspecies, not claim on lactose digestion was approved in the transitional yet taken into account by EFSA. period of GAS claims (Generally Accepted Science), and the strains were not fully characterised, other than as per Codex EFSA on qualifed presumption of safety (QPS) Alimentarius “generic” strains for live yoghurts (15). EFSA has Another initiative of EFSA FEEADAP was the QPS approach refused to allow probiotic claims that demonstrate enhanced to microbial safety in the food chain. The QPS list is now numbers of beneficial gut bacteria, and has insisted on high

Agro FOOD Industry Hi Tech - vol 25(6) - November/December 2014 11 quality “gold-standard” human studies to support probiotic biggest challenge for food probiotics in the EU is the nutrition efficacy (Figure 1). EFSA is now planning to revise guidance and health claims regulation, which restricts claims made to on claims associated with gut health and immune functions, consumers and requires an EFSA evaluation before such claims and will subject the proposals to public consultation, perhaps can be authorised. allowing food business operators the chance to contribute to new, “achievable” data requirements for food probiotics. One difficulty for notifiers is that the number of studies required for REFERENCES AND NOTES EFSA acceptance of a nutrition and health claim is unclear. In contrast, the data requirements for feed probiotics are 1. World Health Organization: Guidelines for the evaluation of well-established. Applicants must submit at least three efficacy probiotics in feed. Joint FAO/WHO working Group Report on studies showing a statistically significant improvement (usually Drafting Guidelines for the Evaluation of probiotics in Food. at a probability level of 5 percent, P<0.05) in one or more London, Ontario, Canada, April 30 and May 1, 2002, 1-11 (2002). production parameters (e.g. growth or feed efficiency). Where 2. Commission of the European Communities: White Paper on four or more studies are presented, a meta-analysis can be Food Safety. COM (1999) 719 final. Brussels, 12 January 2000, 1-52 used to support efficacy, and this is particularly useful where (2000). one or more studies show positive results but fail to reach 3. Regulation (EC) Nº 258/97 of the European Parliament and of the statistical significance at the 5 percent level (16). Obviously, in Council of 27 January 1997 concerning novel foods and novel the case of food probiotics “production parameters” are not food ingredients. Off. J. Eur. Commun. L 43, 1-9 (1997). 4. International Dairy Federation IDF/EFFCA Inventory of micro- useful end points, but perhaps more clarity on the number of organisms with a documented history of safe use. Published as IDF “good” studies required to achieve a positive EFSA opinion on Bulletin 377, 1-17 (2002). a food probiotic claim would be helpful. 5. International Dairy Federation Bulletin 455, 1-68. Safety demonstration of microbial food cultures (MFC) in fermented food products (2012). 6. European Commission. Proposal for a regulation of the European Parliament and of the Council on novel foods. COM(2013) 894 final, 1-51 (2013). 7. Ferraris, L., Butel, M-J., Aires, J. Antimicrobial susceptibility and Figure 1. Probiotics resistance determinants of Clostridium butyricum isolates from with nutrition and preterm infants. International Journal of Antimicrobial Agents, health claims 36:420-423 (2010). approved for 8. UK Advisory Committee on Novel Foods and Processes. Draft marketing to Opinion on an application under the novel foods regulation for consumers – the pot of Clostridium butyricum probiotic. (2013). gold at the end of the 9. Regulation (EC) Nº 852/2004 of the European Parliament and of rainbow? the Council of 29 April 2004 on the hygiene of foodstuffs. Off. J. Eur. Commun. L 139, 1-23 (2004). 10. EFSA FEEDAP Guidance on the assessment of bacterial susceptibility to antimicrobials of human and veterinary importance. EFSA Journal 2012 10(6):2740, 1-10 (2012). 11. EFSA BIOHAZ Scientific opinion on the maintenance of the list of QPS biological agents intentionally added to food and feed (2013 GMM PROBIOTICS update). EFSA Journal 2013 11(11):3449, 1-108 (2013). 12. EFSA FEEDAP Guidance on the assessment of the toxigenic Given the current controversy in the EU in relation to GMO crops potential of Bacillus species used in animal nutrition. EFSA Journal (Genetically Modified Organisms), it is not surprising that there 2014; 12(5):3665, 1-10 (2014). are no GMM probiotics (Genetically Modified Micro-organisms), 13. Regulation (EC) Nº 1924/2006 of the European Parliament and of This is indeed a pity from a scientific point of view, since the Council of 20 December 2006 on nutrition and health claims modern biotechnology is well able to remove genes coding for made on foods. Off. J. Eur. Commun. L 404, 1-30 (2006). antimicrobial resistance, toxins and virulence factors. Additionally 14. EFSA NDA Scientific opinion on the substantiation of health claims gene technology can be used to insert desirable genes, for related to live yoghurt cultures and improved lactose digestion (ID 1143) pursuant to Article 13(1) of Regulation (EC) Nº 1924/2006. example insulin production and cholesterol-lowering genes. Any EFSA Journal 2010;8(10):1763, 1-18 (2010). GMM probiotic would be subject to both the EU regulations on 15. Codex Alimentarius Codex Standard for Fermented Milks. Codex GMOs, and related EFSA GMM guidance (17, 18, 19). STAN 243-2003, 1-11 (2003). 16. EFSA FEEDAP Technical guidance – Tolerance and efficacy studies in target animals. EFSA Journal 2011;9(5):2175, 1-15 (2011). CONCLUSIONS 17. Regulation (EC) Nº 1829/2003 of the European Parliament and of the Council of 22 September 2003 on genetically modified food Food business operators planning to launch new probiotic and feed. Off J. Eur. Commun. L 268, p. 1, 1-38 (2003). strains in the EU in foods or as food supplements need to be 18. Regulation (EC) Nº 1830/2003 of the European Parliament aware of basic legislation, for example in relation to strains that and of the Council of 22 September 2003 concerning the traceability and labelling of genetically modified organisms could be classed legally as novel foods, requiring a pre-market and the traceability of food and feed products produced from safety assessment or a notification of traditional use in a third genetically modified organisms and amending Directive 2001/18/ country. Otherwise, food businesses have general obligations EC. Off J. Eur. Commun. L 268, p. 24, 1-9 (2003). under the EU food hygiene regulation in relation to probiotic 19. EFSA GMO Guidance on the risk assessment of genetically strain safety, essentially in relation to absence of acquired modified microorganisms and their products intended for food antimicrobial resistance and toxigenic potential. Probably the and feed use. EFSA Journal 2011;9(6):2193, 1-54 (2011).

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