Joint Committee on Finance, Public Expenditure and Reform, and Taoiseach díospóireacht -
Thursday, 3 Oct 2019

Application of VAT to Food Supplements: Discussion

Chairman

We are dealing with the application of VAT to certain food supplements. From Health Stores Ireland I welcome Mr. Matt Ronan, spokesperson, and Dr. Dilis Clare, as well as Mr. Kevin Hurley, adviser to the group on VAT. By virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of their evidence to the joing committee. However, if they are directed by it to cease giving evidence on a particular matter and continue to so do, they are entitled thereafter only to qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of the proceedings is to be given and asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person or entity by name or in such a way as to make him, her or it identifiable.

Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official, either by name or in such a way as to make him or her identifiable.

I invite Mr. Ronan to make his opening statement.

Mr. Matt Ronan

I am spokesperson for Health Stores Ireland. I am joined by my colleagues, Dr. Dilis Clare, GP and medical herbalist, and Mr. Kevin Hurley, a tax agent from CKH Fiscal Services who for the past few years has been advising our organisation on the VAT treatment of food supplements. I thank the Chairman and the other members of the joint committee for the interest they have taken in the issue and inviting us to address them on the most serious threat ever to face the health food industry in Ireland, that is, the imposition of VAT on food supplements.

There are health food stores in every town in Ireland. They are mostly small, independent family-run businesses which are an integral part of the local community. The imposition of this unwarranted tax will undoubtedly lead to the closure of many of them and the loss of hundreds, if not thousands, of jobs. We have made a submission to the committee which sets out a lot of the background to the issue and I hope members have had a chance to read it.

I will summarise the five reasons the imposition of VAT on food supplements should not proceed. We are being told that we are about to have a no-deal Brexit budget. The Minister for Finance, Deputy Donohoe, has stated it will be a safe and careful budget which will help citizens, families and communities that could find themselves dealing with real change as a result of a no-deal Brexit. If the United Kingdom crashes out of the European Union on 31 October, new customs tariffs will apply to goods traded between the United Kingdom and Ireland. It is expected that imports of food supplements from the United Kingdom into Ireland which account for the majority of supplements will attract a tariff of 12.8%. If VAT at a rate of 23% is applied, Irish consumers of food supplements will be facing a cumulative increase of 37.8% overnight at the beginning of November. A near 40% rise in price will see a major decline in health supplement consumption, a knock-on impact on the health of citizens and a threat to hundreds of retailers across Ireland. The Minister cannot prevent the United Kingdom from crashing out of the European Union or the resultant WTO tariffs, but imposing VAT on food supplements in the budget is totally at odds with a no-deal Brexit. Instead of protecting Irish consumers and retailers, it would punish them.

It is important to understand the origins of the proposal. It is not because of Government policy and not driven by a desire to raise money, nor is it being demanded by the European Union. It is being done because Revenue's decentralisation of decision-making in 2014 led to contradictory Revenue decisions where given different VAT rates were applied to the same types of supplement. Revenue's answer to an administration problem which it created is to impose a charge on consumers and damage the business of retailers. Revenue, in the shape of its chairman in front of this committee, has claimed that since the end of 2018, the zero-rating of food supplements since 1973 has been on a concessionary basis, but there is no evidence whatsoever to back up this claim. If there was a single email from one Revenue official to another mentioning this concession in the past 20 or 30 years, we would have seen it by now, but no document has been produced showing any evidence that there was ever a concessionary basis for the taxation of food supplements at the zero rate. The industry had never heard of this so-called concession until it was first mentioned by the Minister, in response to a Dáil question in October last year, despite the countless VAT audits that had taken place throughout the country in the 40 years in which there had been food supplements in Ireland. Revenue would have audited the accounts of many firms, retailers and wholesalers in recent years and there has never been an issue with the non-application of VAT to food supplements. There have been no related prosecutions, fines or penalties, interest or back tax payments during the years.

The EU VAT directive does not allow member states to apply a zero VAT vate on a non-statutory or concessionary basis, as Revenue should know better than anybody. Under freedom of information legislation, we obtained evidence in August this year that there had never been any concessionary treatment and that in 2006 Revenue had published instructions for its staff confirming that food supplements were always legally eligible for the zero rate as food in accordance with its interpretation of existing VAT law. In short, the concession argument is bogus and has caused the Minister and members of the committee to be misled.

Any imposition of VAT would impact negatively on health and retailers. The imposition of VAT on these products would also penalise hard-pressed consumers, especially children and the elderly who, with most adults, often use food supplements to maintain good health and address many dietary deficiencies associated with the reality of modern diet and lifestyle. We can provide examples of the positive health benefits of food supplements for members, if they so desire. A serious risk if there is an increase in the price of food supplements is that consumers will abandon their local stores and purchase supplements online, where there is no regulation, advice or guidance on what might or might not be suitable, depending on people's health circumstances. That will guarantee job losses and the closures of small businesses. The sudden imposition of VAT on sports supplements in 2011 led to the decimation of that category of goods which had accounted for 10% of my business. The segment more or less disappeared as if somebody had turned out the lights. People went online to buy their products and that was the end of sports supplements for me.

The resolution of this issue lies with the Minister. An identical situation arose in 2014 regarding VAT on herbal teas. The former Minister, Deputy Noonan, had no difficulty in introducing new zero VAT legislation for those products in that year's budget. I thank members for their continuing interest in this issue. We are happy to take questions on any aspect of this subject. What we hope to do today is to persuade individual members and the committee as a whole of the merit of our case notwithstanding the forces ranged against us. As public representatives, we ask members to reject the proposal that an administrative problem for Revenue be resolved at the expense of ordinary consumers and retailers. We realise that time is short but we hope the committee will take action over the coming days.

Chairman

Does Dr. Clare wish to comment on the VAT end of it?

Mr. Matt Ronan

She would love to take any questions, particularly with regard to the health benefits of these products. If members are interested, she would be delighted to answer questions.

Deputy Michael McGrath

I welcome Mr. Ronan and his colleagues and thank him for his opening statement. Could he give us a sense of current practice regarding the products he and other members of the Irish Association of Health Stories sell? What is the overall mix? I know there are regional variations since the devolution in 2014 to local Revenue offices. What is the overall picture regarding the application of the zero rating of products for VAT purposes?

Mr. Matt Ronan

I would be delighted to do so. We must also remember that when we speak here, we are not just speaking about the 200 businesses we represent. Supplements are being sold within many aspects of retail. About 1,800 plus pharmacies throughout the country are selling food supplements. We can speculate that there are many hundreds of supermarkets that sell them in the same way. For the past 40 years, there was never been a question regarding how we should treat food supplements. We had a few things like juices. If we sold a medicinal product such as plantain juice that did not taste very nice, the fact that its label contained the word "juice" meant that it attracted 23% VAT in the same way as apple juice would. However, there was never a question but that a simple vitamin, mineral, fish oil or a botanical like turmeric, ginger or garlic, which would almost be sold in any corner shop, would attract 0% VAT. I can say that all retailers applied that same measure. It was unquestioned and nobody had any reason to think otherwise.

It is only in the past three or four years that there has been any real challenge to that practice and we found the need to submit a product to Revenue to get a VAT ruling on it because Revenue started throwing up question marks about this. I will pass this question over to Mr. Hurley, who can give the Deputy even more definitive information in that regard. However, I can tell the Deputy that over the past 47 years, every retailer in the country always had the very simple approach that it was 0% VAT for a food supplement regardless of whether it was a Vitamin C, ginger or garlic capsule. That was the practice and all those thousands of businesses applied that rule without hesitation. Suddenly, Revenue is saying that these thousands of businesses have been out of step and only Revenue knew what should have happened. It is only Revenue that claimed at one point that the very tight definition of vitamin, mineral or fish oil deserved the 0% rating according to a strict reading of the regulation and that everything else should have had 23% VAT attached to it. That story was then contradicted by Revenue's own website because the website had numerous products such as royal jelly, ginseng and garlic openly rated at 0%. I have snapshots from the 2018 guidance from Revenue's website detailing a 0% rating on these products in accordance with their categorisation as a food because-----

Deputy Michael McGrath

My question was about establishing current practice. Is this not currently applied to 70%, 80% or 90% of products sold in the stores of the association's members? What is current practice on the ground?

Mr. Matt Ronan

While there have been recent rulings from Revenue on some products, for the most part, they have been challenged by the manufacturers or suppliers. We are awaiting the conclusion of that. I will hand over to Mr. Hurley to get the Deputy a more definitive answer.

Mr. Kevin Hurley

Products that would be standard rated in stores would generally be sports nutrition, body building, skin, hair and nail products.

Deputy Michael McGrath

VAT is applied at 23% on these products.

Mr. Kevin Hurley

VAT is applied on these products. There may not be any legal basis for doing so. In legal terms, there is no real difference between a body building supplement and a Vitamin C supplement for immune health but the industry as a whole applied VAT to those products in 2012. Everybody assumed that products similar to ginseng, such as probiotics or other botanicals were zero rated because of entries on Revenue's website for ginseng and royal jelly capsules at 0%. When royal jelly was first released into the market, it was marketed as the fountain of youth. I think ginseng was marketed as an aphrodisiac. Revenue might have taken the view that some of these supplements were being marketed for frivolous purposes but very many of the products Revenue said were zero rated, such as royal jelly capsules and ginseng, were marketed for equally frivolous purposes.

Deputy Michael McGrath

Do we have a sense of the overall scale of this sector? How much is spent by consumers annually across the sector on what might be generally described as food supplements?

Mr. Kevin Hurley

We do not really have a sense. It is estimated at €60 million per year. That was a 2016 figure. From the turnover of our clients selling food supplements, I would estimate that it is considerably in excess of that figure.

Deputy Michael McGrath

If VAT was applied at 23%, even with a figure of €60 million, it would be in the region of €13 million or €14 million but Mr. Hurley is saying turnover could be much higher.

Mr. Kevin Hurley

A lot of those products, for example, sports nutrition products, would already have VAT on them. Other types of food supplements might not be included in that.

Deputy Michael McGrath

I know the profile depends on the customer's individual circumstances and needs but what would be a typical monthly spend for a regular customer in the food supplement area? I am trying to get a sense of what the impact would be if VAT was applied 23% across the board on all of their purchases.

Mr. Matt Ronan

Obviously, there is significant variety. Regarding the profile in my store, I always say that elderly people on a limited budget who still find it within their means to spend significantly will be at the top of my list of people who will be badly affected by this.

A monthly spend of €40 or €50 would not be unusual if they are buying something like a good multivitamin. They may be spending €20 on a turmeric product to reduce achy joints and knees, or perhaps a glucosamine sulphate, something that has been well scientifically researched, to help with joint problems. One can easily get to that sort of number. Obviously there will be a great deal of variation on that. The most popular single product in my store is what might appear to be a slightly expensive multivitamin but nevertheless people find the value in it. That starts off at €45 for a monthly supply and could go to well over €60 if one were to apply duties, tariffs and all the rest.

Deputy Michael McGrath

We are looking at €10 or so extra on that if we apply the 23% VAT rate.

Mr. Matt Ronan

Probably €15.

Deputy Michael McGrath

That would be a fairly typical customer.

Mr. Matt Ronan

Indeed it would. My colleague, Dr. Clare, might want to come in on that.

Deputy Michael McGrath

That would be over €100 a year for the customer.

Mr. Matt Ronan

It is very significant.

Dr. Dilis Clare

I also have a retail business and I also manufacture. Those who come for health food supplements might not have an adequate diet, partly because there is an evidence-proven reduction in constituents in the food we are eating compared to 20 or 30 years ago. Also if we look at the survey of lifestyle, attitudes and nutrition, SLÁN, which is the Government's own information, there are serious deficiencies in what Irish people are eating. Only 35% of the population is eating the advised five servings of fruit and vegetables a day; 20% are eating three portions of dairy and 60% are not eating two portions of fish. There is a fantasy about how it would be if we all ate the right food, but we are not. Irish people are not eating our ideal diet. In the absence of proper health intervention and prevention, people are trying to do the best that they can. Many are addressing dietary deficiencies. Some 70% of first-time patients attending Cork University Hospital rheumatology department were deficient in vitamin D and 26% of them were seriously deficient. That is every patient who went for a first appointment to rheumatology.

As a GP, I can tell the committee they will no longer do vitamin D tests for general practitioners. There is a lot of scientific evidence showing that the medical supplements of vitamin D do not provide the adjuncts of vitamin K1, boron and magnesium. Many Irish people are also deficient in magnesium. Iron deficiency in toddlers is widespread. There are food supplements based on dried apricots and dried fruit, which they are not eating for their parents for one reason or another. That is the reality based on the Government's own health information in the SLÁN survey.

Deputy Michael McGrath

That is really helpful. In light of what Dr. Clare has said, I would be interested in her reaction to the Taoiseach's description in the Dáil some months ago of many of the products sold by her sector as snake oil.

Dr. Dilis Clare

To be honest I found it very disrespectful.

Deputy Michael McGrath

And inaccurate, presumably.

Dr. Dilis Clare

Absolutely. The science behind all of this is undisputed. For example, treating ulcers in elderly people is greatly enhanced by a multivitamin. I refer also to treating iron deficiency in children. Many people who have chronic illnesses cannot assimilate different forms of vitamins, for instance the difference between B12 as a supplement and methyl B12. One can treat gout with vitamin C. There is a reference in these documents to 13 meta-analyses, systematic reviews showing that vitamin C can treat gout. Because of all the side effects and gut devastation of analgesics, and liver problems, more and more doctors are using colchicine long term, which causes a deficiency in B12. Even using pharmaceuticals can cause vitamin deficiencies. My son has epilepsy. He has been treated with epilepsy medication. Not one doctor has told him about depletion in B vitamins and folic acid. There is a knowledge deficit.

Nothing is perfect on either side of a issue but to describe what people are seeking to do for their own health - I cannot understand the logic of putting no VAT or medicine but putting VAT on food supplements, which is people trying to help themselves. They might not always get it right but they are trying to help themselves. A local health food store is likely to give the most accurate advice that people have time to give. That is the reality.

Senator Rose Conway-Walsh

I thank the witnesses for their presentation. They say that if this is changed in this budget, no matter what evidence becomes available or what the impact is on people's ability to afford supplements, we cannot change it back to zero.

Mr. Matt Ronan

That is an acute observation. It is true because of the peculiarities of VAT law. I will hand over to Mr. Hurley here but it appears that if we break the continuity of the allowance of zero VAT for a product, the EU will say we cannot re-establish it.

Mr. Kevin Hurley

Under the EU VAT directive, certain member states were allowed a derogation from the minimum reduced VAT rates. The cut-off date was 1 January 1991. Ireland had a zero rate for food on that date, which included food supplements under Revenue's own interpretation of the VAT directive, which is repeated in its guidance throughout the years. The products that were permitted to be zero rated at that time could continue to be zero rated but after that date, we could not bring in any new zero rates. If we were to legislate to exclude food supplements from zero rate the same way as other products are excluded, such as sweets, crisps, cakes and biscuits, although they are afforded a reduced rate, thereafter we would not be able to change that legislation and reintroduce them at the zero rate because that would, in effect, be introducing a new VAT rate. The fact is that on 1 January 1991 these products were food. They were entitled to the zero rate under the EU rules. Revenue's claiming that there is a concession places us in an extraordinary situation. Ireland was treating food supplements as food and was compliant with EU VAT legislation but, if this was understood as a concession, we would be in breach of EU rules and possibly open to EU infringement proceedings.

Senator Rose Conway-Walsh

But there is not a concession and I believe that is the key to this issue. Government and Revenue are giving away our authority on this. We are giving away any scope to change our minds once the impact has been studied.

Mr. Kevin Hurley

Yes. It is up to Irish authorities to interpret national legislation and we always interpreted national legislation to include food supplements as food. There are other types of non-conventional food or not ordinary everyday food, for example food-grade chemicals - all these numbers from E100 up to E900 - which are zero rated at the moment. Revenue considers them to be food. They are not ordinary conventional food but they are still included under the umbrella term of food and as such zero rated. They can only be not zero rated by being excluded from the food and drink table that is in the VAT legislation. That is the only way a food cannot be zero rated.

Senator Rose Conway-Walsh

We are facing, if we have the 23% VAT plus the 12% tariffs that may come in if we have a hard Brexit, a 35% increase for people who are taking supplements. People take supplements because they need them in the main. The serious consequences of what the witnesses have said is an administrative error are quite daunting. It makes no sense whatsoever. People can then buy these supplements online at 3% VAT, so we are giving away all of that as well. It is crazy.

That is in addition to the jobs that are created by health food stores. We have a great health food store in Belmullet, as well as a chemist who supplies health foods and employs local people. This measure makes no sense, even from a purely economic point of view.

Dr. Dilis Clare

Having sat on the HPRA committee on herbs and medicines, I am conscious that this will also open up the possibility that vast amounts of committee time and paper will be involved in deciding what is a food, a supplement or a medicine. I have been in the European Parliament which debated whether prunes were a laxative for four or five years. There is no evidence that prunes are a laxative. Therefore, according to the regulations, the European Food Safety Authority, EFSA, had to state that prunes were not a health food. The debate went on for a long time because many other issues hinged on the case. I wish the committee well with the amount of administration, people hours and paper that will go into what is such a minor change. It will be phenomenally difficult. The same applies to herbal teas and medicines and considering what is a botanical and what is a food. There are three different lists in the EU, including what is known as the BELFRIT list. What is being opened up is huge.

Senator Rose Conway-Walsh

Yes, it is bureaucracy gone absolutely insane. Unfortunately, people will have the pay for it in the first instance, with those who need the supplements paying the ultimate price.

Dr. Dilis Clare

It is the people who want to look after themselves and prevent health problems.

Senator Rose Conway-Walsh

How dependent on supplements are people with coeliac disease?

Dr. Dilis Clare

Coeliac foods will not be affected. Gluten-free food products will remain as a food. I do not think there will be any controversy about that.

Senator Rose Conway-Walsh

What does Dr. Clare consider to be the main cohort of people who will be affected? For what types of disease do people need to take regular supplements?

Dr. Dilis Clare

Many patients on statins take CoQ10, an evidence-based replacement of a nutrient that becomes deficient when people take statins. Many people with iron problems, who cannot tolerate gastrointestinal side effects of pharma products such as Galfer or Feospan, can often tolerate food-based iron. That is another significant category. Another is vitamin D for the over-65s and essential fatty acids for those who do not eat oily fish or do not have good oils in their diet. There is a major movement towards veganism and vegetarianism. These diets are deficient in omega 3, 6 and 9 fatty acids. People are choosing to change their diet and replace those essential elements by using food supplements in a knowledgeable way. They are some examples. Another area is children's multivitamin supplements and vitamin D. We do not pay enough attention to vitamin D. The governments of all other countries at the same latitude as Ireland and further north advise their entire populations to take vitamin D.

Senator Rose Conway-Walsh

I imagine we have a significant number of people on statins. Is there a figure for the percentage of the overall population?

Dr. Dilis Clare

I do not have it.

Mr. Matt Ronan

If I could contribute, a very well established and noted Irish academic spoke in the vicinity of this House in recent days. His specialty is research on age-related macular degeneration, which is the degeneration of the back part of the eye. It is a leading cause of blindness in Ireland in the over-50s. He has studied the condition for years and is one of the world's leading researchers in this area. He presents his research internationally and is based in Waterford Institute of Technology, WIT. He has estimated that the cost of providing the correct level of supplementation with carotenoids, which are his specialty, for this single condition free of charge to sufferers of this cause of blindness in Ireland would be €93 million over five years. The State would save €210 million over the same period because the treatment, the only recourse people have as the disease progresses, is enormously expensive. He reckons that blindness costs Ireland €135 million per annum, which is a significant cost to the State. There is an enormous cost-benefit to the State of encouraging people to take these types of supplements. It helps to prevent the decimation of their quality of life while also avoiding the excessive and extreme cost of trying to save the vision of the people in question. If we were to choose one product or one area, it would have to be age-related macular degeneration because it of the debilitating effect blindness has on quality of life. The State is being lumbered with an enormous cost to try to make up the shortfall when medical intervention becomes necessary.

Dr. Dilis Clare

Another significant area is probiotics. Most doctors now advise people to go to their health food store for probiotics. Whether one calls these products a medicine or food, they fall exactly into the middle ground. Significant research has been done and presented internationally by Cork University Hospital. A particular brand has been researched and must be sold mainly through agencies that require the products to be sold at two or three times the price to ordinary customers. Be that as it may. There will be a major argument on what is a food and what is a medicine. People are increasingly being advised by their doctors to buy probiotics at a health food store after a regular course of antibiotics.

Senator Rose Conway-Walsh

That is right. I foresee this leading to widening inequality. Food supplements are already expensive and increasing their cost will separate further those who cannot afford them from those who can. Is VAT applied to food supplements in the North?

Mr. Kevin Hurley

It depends on the type of supplement. In general, most capsules, tablets and pills have VAT applied in the UK, whereas many power food supplements and certain liquid supplements are zero rated.

Senator Rose Conway-Walsh

They normally work out cheaper. I thank the witnesses.

Deputy Paul Murphy

Most of the questions I wanted to ask have been answered. How many people in Ireland who regularly buy these products would be affected if the zero rate was removed?

Mr. Matt Ronan

An iReach survey determined that 71% of Irish people regularly purchase food supplements. Irish people have a well established tradition of using these types of products. It has become part of our everyday culture. One gentleman who was in hospital told me he was in a ward with five or six other people, all of whom looked at him as if he had two heads because he was not taking any supplements. They asked why in the name of God he was not taking anything to protect his health. He asked me what he needed to get back on his feet and recover well. That shows that supplements are a major part of our approach to safeguarding our health and the health of our families. Babies, children and everyone else, all the way up to seniors, are using products that are appropriate to them to improve their health and ensure they are in good form.

Deputy Paul Murphy

I thank Mr. Ronan.

Chairman

I will return to a question Senator Conway-Walsh asked as I want to get a clear picture. Will the witnesses list three or four of the best selling products, their current price and how much they would cost if VAT were applied? We can then factor in Brexit. VAT and Brexit will be the two major issues for the witnesses. If I went to Mr. Ronan's shop and bought four different products, how much would they cost, taking into account VAT changes and Brexit?

Mr. Matt Ronan

Going with the full VAT application that we are being threatened with, one could start with a bottle of 30 capsules containing 1,000 mg of vitamin C that is available for purchase for €7.50. Applying the 23% VAT rates brings that to €8.36 and taking into account the effect of Brexit as well, the price will go over €10. A bottle containing 100 capsules of vitamin C from Solgar starts at €19.65 but this could go to €24.17 with the new VAT rate and €27.25 after the effects of Brexit. A commonly used probiotic costs €25.99 for a 30-day supply and with a new VAT rate, this would rise to €31.97 and to €36.05 after taking into account the effect of Brexit. The product would be pushed from €25 to €36, meaning nearly €11 would be added to the price if the worst happens.

Chairman

In reality, if all this is applied to prices, they will be pushed significantly upwards for customers of these stores. Those customers include older people and those who may not be able to afford regular prescriptions from doctors.

Mr. Matt Ronan

That is inevitable. The budget of such people may be limited and in these uncertain times, that is especially the case. These people will find they just cannot afford these products.

Chairman

Their health would be affected as a result. It is a consequence.

Mr. Matt Ronan

Without doubt there would be a detrimental effect on the health of such people. I have spoken of the Macushield example, a product taken by people whose vision is under threat. Such people may find they cannot quite stretch to the extra 25% or 30% in the price.

Chairman

What is that example?

Mr. Matt Ronan

It is a product starting at €30.

Mr. Kevin Hurley

With VAT, the price of Macushield would increase to €36 and with the effect of Brexit included, the price would be approximately €42.

Chairman

That product is very important for people.

Mr. Matt Ronan

It is vital.

Senator Gerry Horkan

I thank the witnesses for their opening statement and comments so far. Many of the questions I might have asked have already been addressed. In the opening statement the witnesses indicated that the tax treatment of these products is currently the same whether the product is sold in a supermarket, food store or pharmacy. Is there a definition of a food supplement? I presume if I go to Tesco I can buy garlic powder, turmeric or products that people might use to benefit their health. Have the Revenue Commissioners been a bit vague about this food versus food supplement definition?

Mr. Kevin Hurley

The Revenue Commissioners have been a bit vague. The interpretation used to be that this was just food. That was old guidance from the Revenue Commissioners published many times. The wording is that the such supplements in themselves constituted food within the terms of paragraph 12 of the second Schedule to the VAT Act 1972. That is old VAT legislation.

Senator Gerry Horkan

That does not really tell us anything.

Mr. Kevin Hurley

The Revenue Commissioners always treated these products as food. Food supplements were defined as food in accordance with VAT legislation.

Senator Gerry Horkan

I am trying not to be overly pedantic about this. Are salt and pepper food supplements? One does not consume salt or pepper on their own and they are used to supplement food. Is it an attack on the health food industry to look at it that way? The comments from the Taoiseach seemed to demonstrate a disregard for the efforts of these businesses and the industry in keeping people healthier than they may be otherwise. Is there any indication that a line is drawn somewhere? I am not being flippant about this but where do we stop? Garlic capsules are one product and raw garlic is another. Are they the same?

Mr. Matt Ronan

We have an international definition of a food supplement and that was supplied by Europe, where food supplements are regulated under food law. There is a very strict definition within the confines of that legislation and that can give a precise definition of food supplement. When a food supplement is placed on a shelf, there must be an indication that it is a food supplement. There can be no vagueness in how it is regulated. These products are very strictly regulated under the Food Safety Authority of Ireland. It must align 100% to the European directives dealing with food supplements and there is no vagueness in that respect. The label must indicate it is a food supplement and the ingredients and directions for use must be listed.

Senator Gerry Horkan

I appreciate we are ten minutes away from an Irish rugby match and our ratings may be slightly lower than usual but if an ordinary person is watching this committee, how would he or she know the difference between a food supplement and food? Is a food supplement part of a larger group of food? If food is zero rated for VAT, should that be the end of the story?

Mr. Kevin Hurley

There is a European Union definition of food. There is no definition of food in Irish VAT law but there is a definition in Irish food law, which relates to European Union regulations. It is described as any substance that is reasonably expected to be ingested by humans. The legislation further states that this cannot be a medicine and it should not fall under certain other criteria. Essentially, if it is not a medicine and it is not toxic but it is ingested, it is food.

Senator Gerry Horkan

On that basis, olive oil, garlic oil and all those products used in cooking and part of food preparation can be classed as food.

Mr. Kevin Hurley

Yes.

Senator Gerry Horkan

I am not telling the witnesses their business but should the argument be that if something can reasonably be ingested and is not a medicine, which have their own definition, it is effectively food and that should be the end of the argument. Is that fair?

Mr. Kevin Hurley

Yes.

Senator Gerry Horkan

That is enough for now.

Chairman

We have witnesses from the insurance groups outside so I am obliged to bring this section of the meeting to a conclusion. I will allow some further questions but the Deputy and Senator should be aware of that.

Senator Kieran O'Donnell

Has the Food Safety Authority of Ireland ever asked shops to withdraw products from sale?

Mr. Matt Ronan

Even if the label contravened the strict labelling requirements, the Food Safety Authority of Ireland would ask for a product to be withdrawn.

Senator Kieran O'Donnell

The bottom line is the Revenue Commissioners made a guideline ruling in 2006 and there must have been back-up for that ruling.

Mr. Kevin Hurley

It was in 2011.

Senator Kieran O'Donnell

Have the witnesses looked at the EU directive to see if the interpretation made by the Irish tax authorities is correct? The issue is around how these products are perceived. The robustness of any regulatory system is sometimes based around products that are withdrawn rather than those that are allowed. What control mechanisms exist within regulation to ensure the products being sold are food supplements?

Mr. Kevin Hurley

They are essentially regulated as food and they must comply with food legislation. Any manufacturer, distributor or shop must be registered with the authorities as a food business operator and these are inspected by environmental health officers in the same way as a food business. There are very strict controls and there must be compliance with food information and consumer laws. There cannot be claims that are disallowed by law. It is strict regulation.

The interpretation is in line with EU VAT legislation because annex III to the EU VAT directive permits reduced rates to apply to a number of products and they include foodstuffs and animal feeding stuffs. Revenue interprets that to mean that food supplements for farm animals are also zero rated. That is on Revenue's VAT rates index. Ingredients to produce food are also in that reduced rates section, as are supplements to the normal diet. The reduced rate, which is our de facto zero rate, can apply to food supplements.

Senator Kieran O'Donnell

Can the association seek a direction from Europe on that?

Mr. Kevin Hurley

I have never seen any direction from Europe to say that there should be VAT on food supplements.

Senator Kieran O'Donnell

Can the association get clarification from Europe to assist the Revenue on this issue?

Mr. Kevin Hurley

We have never sought it.

Chairman

The association does not want to have a 23% VAT rate applied.

Senator Kieran O'Donnell

The Chairman is missing my point, which is very simple.

Chairman

I am not missing the Senator's point. I am giving the other side of the argument and being mischievous.

Senator Kieran O'Donnell

The Chairman is trying to give balance.

Deputy Eugene Murphy

I apologise for being late but the traffic played havoc with me getting in this morning.

Chairman

That is not an excuse.

Deputy Eugene Murphy

It is sometimes easier to get from Kilkenny to Dublin than it is to get from Roscommon to Dublin. The traffic after Palmerstown is chaotic. I apologise for arriving at the end of the meeting.

I am very much supportive of this campaign on the basis that I know, from people who come to me, many of whom are elderly, that many of those health products are a considerable support. I know of one person who had to be taken into hospital numerous times in the middle of the night with serious pain. This person started taking a special supplement, which has meant the emergency services no longer come out and a hospital bed is no longer taken up. That side of things should not be forgotten.

The health food sector is one of the few sectors to have expanded n rural Ireland. These businesses are opening in many towns where other businesses have closed. God knows, we want more of these developments in rural towns and villages. I do not want to hold up the meeting. I am very supportive of the campaign. I hope the representations made today will be taken into account in the budget and VAT will not be applied to many of these products which are very important, particularly to our ever growing ageing population.

Chairman

I think that, overall, the remarks of committee members have been supportive of the campaign and the position that VAT should not be imposed. Perhaps we will reflect on that and send a note to the Minister to reflect the opinion of the committee. Does Mr. Ronan wish to make a final comment?

Mr. Matt Ronan

I would like to respond to the Chairman's remarks. Our entire industry feels as if it is on a precipice. As a previous speaker observed, if we lose the ability to rate food supplements at zero, that ability will be lost forever. We stress that we are at the mercy of the Minister in this regard. It is within his power to act. While he may choose to accept the Revenue view that this is driven by regulation, the current interpretation of the regulations would serve perfectly well. These products could then continue to be sold properly at a zero VAT rate. I beseech members to do everything in their power to protect our customers and their constituents.

Senator Gerry Horkan

The budget is next Tuesday. I ask that the committee communicate with the Minister speedily to ensure he receives our letter before next Tuesday, rather than have it arrive on the day after the budget.

Chairman

The clerk will deal with that. This looks to me like a grab for tax from small business at the expense of the health of the citizens who support the food supplements sector. I will strenuously suggest to the Minister that this decision should not be taken and the situation should remain as it is. That view needs to be reflected in correspondence to the Minister before budget day. I thank our guests for coming along and making their case so clearly.

We will suspend until the representatives of the insurance companies have taken their seats.

Sitting suspended at 11.15 a.m. and resumed at 11.20 a.m.