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Recent legal requirements at EU level regarding the labelling of food products

The EU Regulation 1169/2011 (the “Regulation”) entered into force on 13 December 2011, amending the existing EU legislation governing general food labelling (1978) and nutrition labelling (1990). Its provisions shall become directly applicable in all member states on 13 December 2014, with the exception of the provisions of Annex VI, part B regarding the designation of “minced meat” (which will become directly applicable on 1 January 2014) and the provisions of Art. 9(1) point l regarding the nutrition declaration (which will become directly applicable on 13 December 2016).

Foods already placed on the market or labelled prior to 13 December 2014 under the former legal requirements may still be marketed, until the stocks are exhausted.

According to the impact assessment report issued by the European Commission in 2008 regarding the Regulation, the most important reasons for the need to provide information on food labels relate to health and safety issues. Further, information on labels has been construed as helpful in allowing consumers to make informed choices about the products they purchase and minimising the chance of consumers being misled.
The Regulation aims at ensuring an increased consumer protection at EU level in relation to food information and the smooth functioning of the internal market, as well as a pro-competitive market environment.

Subject matter and scope of the Regulation

The Regulation provides the general principles, specific requirements and responsibilities of the food business operators relating to food information in general and food labelling in particular. The Regulation also includes provisions indicating flexibility to address any future developments of the food industry sector and any potential need for further requirements regarding food information.

The provisions in the Regulation impact all food business operators in the food chain if and to the extent that their activity involves providing food information to consumers. The scope of the Regulation includes operators established in EU and beyond, taking into account that food products imported to EU member states must also comply with the new labelling rules.

In terms of the types of products concerned, all food products are subject to the new rules laid out by the Regulation (including those products which are also regulated by specific labelling provisions – e.g. food enzymes, flavorings), subject to certain exceptions expressly provided by the Regulation.

Main requirements regarding food information

Any type of food intended for supply either to the final consumer or to mass caterers (e.g. restaurants, canteens, and schools in which food is prepared for consumption by the final consumer) must be accompanied by food information in accordance with the Regulation.

The Regulation covers basic principles regarding food information and introduces specific requirements regarding mandatory and voluntary information to be provided to consumers in relation to food products.

Fair information practices

In terms of basic principles to be observed by food business operators, food information must be accurate, clear and easy to understand for the consumer. Also, food information must not be misleading by suggesting, for example, that the food possesses special characteristics when in fact all similar foods possess those characteristics. Food information should not attribute to the food the property of preventing, treating or curing a human disease, or even refer to such properties, except in particular cases provided for by EU law in relation to natural mineral waters and foods for particular nutritional uses (dietetic foods).

These basic principles also apply in relation to the advertising of food products and their presentation (e.g. appearance, packaging).

Mandatory food information

The Regulation provides that, subject to specific exceptions, various pieces of information must be provided to consumers on a mandatory basis , namely the product name, list of ingredients, information relating to allergies or intolerances, food net quantity, quantity of certain ingredients, date of minimum durability, any special conditions for use/storage, name and address of the food operator, the country of origin or place of provenance of the food and the nutrition declaration. Providing special instructions for use of the food is compulsory to the extent that it would be difficult to make appropriate use of the food in the absence of such instructions. Also, the actual alcoholic strength by volume must be indicated with regards to beverages containing more than 1.2% by volume of alcohol.
One of the main amendments brought by the Regulation regards the requirements relating to the country of origin or place of provenance of the food. Such indication is mandatory in cases where (a) the failure to indicate this might mislead the consumer as to the true country of origin or place of provenance of the food, and (b) for certain types of meat (i.e. fresh, chilled or frozen meat of swine, sheep, goats and poultry). Application of the requirement to the mentioned types of meat is subject to the implementation of acts adopted by the Commission.

Further, where the country of origin or place of provenance of the food is indicated and this is not the same as the country of origin or place of provenance of the food’s primary ingredient, the food operator shall also provide to the consumer either (a) an indication of such difference (i.e. that the country of origin or place of provenance of the food is different from that of its primary ingredient) or (b) an indication of the country of origin or place of provenance of the primary ingredient of the food. Application of this requirement is subject to the implementation of acts adopted by the Commission. By 13 December 2014, the European Commission is expected to submit assessment reports regarding the mandatory indication of country of origin or place of provenance for various other specific products, including: certain types of meat, milk or milk used as an ingredient in dairy products, unprocessed foods, single ingredient products (e.g. coffee) or ingredients that represent more than 50% of a food (primary ingredients). When conducting such assessments, the Commission shall analyse the consumer’s need to be informed on those issues and the feasibility of providing such mandatory indication, as well as the costs and benefits of introducing the respective requirement in the legislation, its legal impact on the internal market and international trade.

Another significant requirement under the Regulation consists in the nutrition declaration, which must include information on the energy value of the food and data on six nutrients: fat, saturates, carbohydrates, sugars, protein and salt. Pursuant to the Regulation, the nutrition declaration is mandatory for all food products, excepting food supplements and natural mineral waters, which fall under distinct EU legal requirements, as well as those products listed in an annex to the Regulation (e.g. chewing-gum, salt, gelatine, food enzymes).

Apart from the mandatory information referenced above, food operators must also provide additional mandatory information for specific categories of food, such as foods containing sweeteners, beverages with high caffeine content (i.e. in a proportion in excess of 150mg/l) and frozen meat.

Also, Member States may impose other additional mandatory information in relation to specific categories of foods, at their discretion, provided that such requirements are justified on at least one of the following grounds: (a) protection of public health; (b) protection of consumers; (c) prevention of fraud; and (d) protection of industrial and commercial property rights, indications of provenance, registered designations of origin and the prevention of unfair competition.

At the same time, omission of certain information is permitted for some specific food products, such as the ones in containers the largest surface of which has an area of less than 10 cm² or in certain glass bottles intended for reuse.

The Regulation requires that all mandatory information be visible, clear and legible and placed in the same field of vision (i.e. on a surface that can be read from a single viewing point), using characters with a minimum font size indicated by the Regulation.

Specific language requirements also apply with regard to mandatory food information, triggering that information in relation to a specific food is provided in a language easily understood by the consumers of the EU Member State where the respective food is marketed. The information may be provided in one or more languages from among the official languages of the EU. Romanian consumer protection legislation requires that Romanian language is used when providing this type of information to consumers.

A specific set of derogated rules are provided for those food products that (i) do not require pre- packing, (ii) are packed on sales premises upon the consumer’s request, or (iii) are pre-packed for direct sale. More precisely, the only mandatory information to be provided in relation to such foods is the information regarding contained substances or products which cause allergies and intolerances.

Voluntary food information

Food information may also be provided to the consumer on a voluntary basis. Similarly to the treatment of mandatory information, according to the Regulation voluntary information should not be misleading, ambiguous or confusing for the consumer and shall rely, where appropriate, upon relevant scientific data. The Regulation also requires that this type of information shall not be displayed on the labels to the detriment of the space available for mandatory information.

In those cases when information indicated by the Regulation as mandatory is provided to the consumer voluntarily (i.e. in advance of the date when such information becomes mandatory), the respective information must comply with the requirements imposed for mandatory information.
Liability of food business operators

The provisions of the Regulation trigger an extended liability of food operators with regard to food information. Liability is mainly incumbent upon the food operator under whose name or business name the food products are marketed. If the operator is not established in the EU, the importer into the EU market is responsible.

First of all, food operators are required to ensure the presence and accuracy of food information. When food products are supplied between business operators, the supplier entity is under the obligation to provide sufficient information to enable the other food business operator to fulfil the latter’s obligations in relation to providing food information to the final consumer or to mass caterers.

Liability may also be triggered for the mere supply of non-compliant food. This requirement affects suppliers that are not involved in providing food information to consumers, but that supply foods which they knew or presumed, based on their professional knowledge, to be non-complaint with the legal requirements. Such responsibility presumably triggers specific costs of verification of compliance for wholesalers, retailers and others in the supply chain.

The Regulation provides restrictions on the modification of information accompanying a food. In particular, any food business operator which changes the information on a food label becomes responsible for the change made and must ensure that such change does not mislead the final consumer.

At the same time, the Regulation makes it an overarching obligation of a food business operator to generally comply with all food information requirements issued under EU law and relevant national provisions.
Prospective regulatory actions

In addition to the existing requirements, the Regulation anticipates future additional measures to be adopted as regards labelling, subject to an assessment report being generated by the Commission by 13 December 2014 on the impact of introducing such future measures. More precisely, the envisaged measures concern specific categories of food products, such as trans- fats, milk, unprocessed foods, single ingredient products, and beverages containing over 1.2% in volume of alcohol.

Ana-Maria NISTOR şi Valentina PÂRVU
avocați CMS Cameron McKenna

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