European court rejects Kerry challenge to renewal of licences for 3 smoke flavourings
Key Facts
The European court rejected an appeal by Kerry Group and other companies against the decision not to renew licences for 3 smoke flavouring products in a ruling issued on 11 November 2026. The court thereby upheld the European Commission’s refusal to renew the licences, based on the European Food Safety Authority’s assessment of health risks. It ruled that the burden of proving a product’s safety rests with the company seeking a licence or its renewal. The court said the authority and the Commission were not required to prove that a product was harmful in order to refuse renewal. The ruling leaves the regulatory decision in place, while transitional periods continue for some uses of the products, depending on the category.
The court also rejected the companies’ criticism of the scientific method used by the European Food Safety Authority in its assessment. It said the authority had relied on the scientific method at issue, and the court did not accept the companies’ objections to it. This part of the ruling puts the health basis of the decision at the heart of the dispute, alongside the court’s interpretation of the burden of proof. Companies must prove that the products pose no risk to human health before their licences can be renewed. Refusing an application does not require European authorities to provide evidence that the products have caused actual harm.
The court considered the argument that consumers might return to traditional smoking methods if the use of smoke flavourings were discontinued. It said an increase in such a return had not been established. It added that even if an increase occurred, that would not require the Commission to authorise products whose safety had not been sufficiently demonstrated. The court therefore did not consider this possibility sufficient grounds to override safety requirements or renew the licences. Its response formed part of its rejection of the companies’ arguments against the regulatory decision.
The ruling does not end the use of the products in all categories at the same time, as the European decision set transition periods for some foods and preparations. Some uses in categories of cheeses, meats and fish will continue until 1 July 2029, while other categories expire on 1 July 2026. The Commission said these periods give companies time to adjust their production processes. The court found that the transition periods allow companies to adapt their operations to the decision. The relevant category determines when use covered by the rejected licence must stop.
The court rejected Kerry’s arguments concerning the decision’s economic consequences, according to the Law Society Gazette. Based on the information available, the ruling did not estimate the value of revenue that could be affected or the scale of the financial impact on the group. Kerry had previously told the Irish government that up to 40% of bacon and cured meat sold in Ireland relied on smoke flavourings, according to an Irish Times report. That figure is a previous estimate cited by the company for products in Ireland; it does not quantify the ruling’s impact on its revenue. Nor does it establish that these products represent a major part of the group’s business.
In material Kerry published on 14 October 2026 about reformulating products under regulatory pressure, it said compliance decisions could affect ingredient information on labels, retailer acceptance, manufacturing processes, operational efficiency and product economics. These factors illustrate the scope of changes manufacturers may face when altering product formulations and production methods. After the ruling, the group said it was disappointed and believed that "the safe use of smoke flavourings is supported by extensive scientific data." It added that it would review the implications of the scientific and practical assessment. The company did not specify a financial value for the ruling’s impact in its statement, as reported.