Is every dietary supplement and medical device not subject to sugar tax?

Due to the entry into force on 1 January 2021, the provisions of the Law of 14 February 2020 amending certain laws in connection with the promotion of health-promoting consumer choices introducing a fee on foodstuffs containing sweeteners, colloquially known as a sugar tax, should be considered whether those provisions apply to the market in medical devices, dietary supplements, foods for special medical purposes or infant formulae.

As a preliminary point, it should be noted that, in order for a product to be subject to the provisions of that law, it must be a drink or syrup which is a foodstuff, included in the Polish Classification of Products and Services in classes 10.32 (fruit and vegetable juices) and 10.89 (other foodstuffs, n.e.s.) or in Chapter 11 (beverages).

Secondly, the product must contain at least sugars which are monosaccharide or disaccharide or foodstuffs containing those substances and sweeteners as referred to in Regulation (EC) No 1333/2008 of the European Parliament and of the Council of 16 December 2008 on food additives (OJ C 133, 11.12.2008, p. 1). Office of The EU L 354, 31.12.2008, p. 16, as amended. d.4) e.g. xylitol, erythritol, sorbitol, or caffeine or taurine.

In view of a number of exemptions, beverages are not subject to the tax in question:

(1) which are medical devices within the meaning of Article 1(1) of Directive 91/414/EEC; Whereas article 2 (2) of Regulation (EEC) No 1 point 38 of the Act of 20 May 2010 on medical devices (Journal of Laws of 20 May 2010). U. of 2020 item. 186),

(2) which are dietary supplements within the meaning of Article 1(1) of Directive 91/414/EEC; Whereas article 3 (2) of Regulation (EEC) No Article 3(39) of the Act of 25 August 2006 on food safety and nutrition (OJ C 104, 11.12.2006, p. 1). U. of 2019 item. 1252 and 2020 item 284 and 285),

(3) which are foods for special medical purposes, infant formulae, follow-on formulae,

5. in which the mass share of fruit, vegetable or fruit-vegetable juice is not less than 20 % of the raw material composition and the sugar content is less than or equal to 5 g per 100 ml of drink,

(6) carbohydrate-electrolyte solutions as referred to in Commission Regulation (EU) No 432/2012 of 16 May 2012 establishing a list of authorised health claims on food, other than those relating to the reduction of the risk of disease and the development and health of children whose sugar content is less than or equal to 5 g per 100 ml of drink,

7) which are products in which milk or milk preparations are in the first place in the list of ingredients, regardless of their classification in the Polish Classification of Products and Services.

In order to confirm that there is no need to pay a beverage levy, it is necessary to verify whether the product in question actually falls within one of the categories indicated. The literal wording of the law suggests that if a drink meets the criteria set out in the definition of e.g. a dietary supplement from Article 10(1) of Directive 91/414/EEC, it should be replaced by the following: Whereas article 3 (2) of Regulation (EEC) No In this way, the commission shall inform the Commission of the Article 39 of the Food safety and Nutrition Act will not be subject to the sugar tax. However, in order to actually speak of a tax exemption, a product appears to have to not only complete the definition of a dietary supplement, but also comply with the other requirements laid down in the Food safety and Nutrition Act for this category of products, including in the case of dietary supplements, this will be a notification to the GIS in accordance with Article 11(1) of the Basic Regulation. 29 of the Food Safety and Nutrition Act. With regard to medical devices, the product concerned should comply with the definition of a medical device as indicated in Article 1(1) of Directive 91/414/EEC. Whereas article 2 (2) of Regulation (EEC) No Article 1(1)(b) 38 of the Law of 20 May 2010 on medical devices, in addition, it should certainly undergo an assessment of compliance with the requirements laid down for a given category of medical devices.

If the product remains outside the scope of the exemptions laid down, the operator is obliged to calculate the amount of the fee himself, as well as to comply with, among other things, reporting obligations.

It should be noted that the Law also provides for additional penalties in the event of non-performance of the obligations imposed on the entity, which means that, in the event of failure to pay the fee on time, the head of the tax office shall determine, by decision, an additional fee corresponding to 50% of the amount of the fee due.

Authors: Karolina Bennich and Justyna Stefańczyk-Kaczmarzyk
KONDRAT law firm and Partnerzy

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