Can shellfish display tanks be used for live bivalve molluscs in a shop or restaurant?

Display tanks generally hold shellfish in one of two ways. Either the shellfish are immersed in water or are sprayed (or misted) by a bar running across the middle or top half of the tank. Tanks are also installed to display other seafood such as live lobsters, crabs or prawns for selection by customers to be brought home for cooking or, if in a restaurant, for cooking on the premises.

However, the use of display tanks containing water for the holding of live bivalve molluscs (LBMs) (e.g., mussels, scallops, oysters, clams) is prohibited in catering and retail operations. Tanks may still be used for holding live crustaceans such as crabs and lobsters.

Legal basis

The FSAI was asked to provide advice on the use of such display tanks for the holding of live bivalve molluscs for retail sale or sale in a restaurant. To help clarify matters in respect of this practice, legal advice was sought by the FSAI. The information below is based on the legal advice received.

Regulation 853/2004/EC lays down specific hygiene rules for foods of animal origin. It is over and above the more general hygiene requirements of Regulation 852/2004/EC.

Regulation 853/2004/EC provides that, unless expressly indicated to the contrary, the Regulation does not apply to retail (see Art. 1, paragraph 5(a) of the Regulation).

Section VII of Annex III, Regulation 853/2004/EC provides detailed rules in relation to LBMs. It provides that Chapters V, VI, VIII and IX and point 3 of Chapter VII apply to retail.

Chapter VI relates to packaging of LBMs and provides at paragraph 2 that “packages of LBMs, intended for direct retail sale, must remain closed until they are presented for sale to the final consumer”.

Chapter VIII, paragraph 2, provides that LBMs must not be re-immersed in, or sprayed with, water after they have been packaged for retail sale and left the despatch centre. This is the critical provision.

'Retail' is defined in Regulation 178/2002/EC as:
“……the handling and/or processing of food and its storage at the point of sale or delivery to the final customer, and includes distribution terminals, catering operations, factory canteens, institutional catering, restaurants and other similar food service operations, shops, supermarket distribution centres and wholesale outlets.”

Therefore, if the live bivalve molluscs have been harvested (or removed from a purification tank at a dispatch centre), packaged and sold, transferred or otherwise delivered to a catering or retail operation then they must not be re-immersed or sprayed with water.

In summary, the use of display tanks containing water for the holding of LBMs is prohibited in catering and retail operations. Tanks may still be used for holding live crustaceans such as crabs and lobsters.