Food for thought about food law!

In view of the upcoming application of the new rules regarding the declaration of food nutrients on food packaging, our article will focus on the current European legislation on food labelling, which was enacted in the form of Regulation in the entire EU region.

1. When did the new Legislation on food labelling apply?

Regulation No 1169/2011 on the provision of food information to consumers came into force on 19 November 2011. However, most provisions came into application on 13 December 2014 except for the Article 9(1) concerning nutrition declaration, which will apply on 13 December 2014.

2. Why did the European legislator decide to adopt a new uniform legal framework on this field?

The need for a new Regulation arose because of technological advancements in the field of food manufacturing, information technology and telecommunications as well as subsequent change in consumers’ needs and desires for more and clearer food information. The European legislator took steps in order to modernize the outdated rules laid down in the Directives 2000/13/EC and 1990/496/EEC, both of which included provisions dating back to the period before 1990. According to recitals of the Regulation, among the Legislator’s main objectives prevailed the achievement of a high level health protection for European consumers, the promotion of food business operators’ compliance by simplifying the law and enhancing legal certainty as well as the enhancement of the internal market by limiting divergences.

3. What is the meaning of “food” in the new legislation?

Definition of “food” in Regulation 1169/2011 is according to EC Regulation 178/2002 “food” or “foodstuff” definition, that means “any substance or product, whether processed, partially processed or unprocessed, intended to be, or reasonably expected to be ingested by humans”, including drink, chewing gum and any substance, including water, intentionally incorporated into the food during its manufacture, preparation or treatment. However, feed, live animals unless they are prepared for placing on the market for human consumption, plants prior to harvesting, medicinal products, cosmetics, tobacco and tobacco products, narcotic or psychotropic substances residues and contaminants are explicitly excluded.

4. Which is the legislator’s position on consumer protection? Which aspects of consumer protection did he focus on?

As it is demonstrated in the recitals, not only consumers’ right to food information and the principle of consumers’ informed choice were totally respected by the Legislator. More importantly, the legislator directed his efforts towards enhancing their protection. In parallel to patient’s informed consent, consumer’s informed choice proves EU legislator’s commitment to empower the weaker party of the relevant contracts and enhance their trust in the EU regulatory framework.

 

5. What does “informed choice” mean? Which kind of information must be provided?

In order to make an informed choice, consumers shall be provided with accurate and sufficient food information disseminated through on legible, clear and understandable food labels. Based on the definition of the Regulation, food information covers information concerning food and is made available to the final consumer by means of a label, other accompanied material and any other means including modern technology tools and verbal communication.

In the view of the European Legislator, information which should be provided to the consumer is analytically presented in the Article 9 and comprises:

• the name of the food
• the list of ingredients
• any ingredient or processing aid causing allergies or intolerances used in the manufacture or preparation of a food and still present in the finished product, even if in an altered form;
• the quantity of certain ingredients or categories of ingredients;
• the net quantity of the food;
• the date of minimum durability or the ‘use by’ date;
• any special storage conditions and/or conditions of use;
• the name or business name and address of the food business operator
• the country of origin or place of provenance where provided for \
• instructions for use where it would be difficult to make appropriate use of the food in the absence of such instructions
• with respect to beverages containing more than 1,2 % by volume of alcohol, the actual alcoholic strength by volume
• a nutrition declaration

6. With the aim of enhancing consumer protection, prevention of misleading information on food labelling seems to be of high priority to the legislator. Which practices should be avoided?

The legislator characterizes as unfair practices and prohibits

1. a) misleading consumers in terms of characteristics of the food and, in particular, as to its nature, identity, properties, composition, quantity, durability, country of origin or place of provenance, method of manufacture or production,
2. b) attributing to the food effects or properties which it does not possess
3. c) suggesting that the food possesses special characteristics when in fact all similar foods possess such characteristics, in particular by specifically emphasizing the presence or absence of certain ingredients and/or nutrients
4. d) suggesting, by means of the appearance, the description or pictorial representations, the presence of a particular food or an ingredient, while in reality a component naturally present or an ingredient normally used in that food has been substituted with a different component or a different ingredient.

It should be mentioned that misleading information can be indicated either on packaging or on advertising material.

7. Who is responsible for compliance with the food labelling rules?

In general terms, mainly the food business operator bears the responsibility of complying with food information law. According to Article 8, food business operator is the operator under whose name or business name the food is marketed or if that operator is not established in the EU, the importer in the Union market. Noticeably, even he has not affected the food labelling he must ensure that food which does not comply with the applicable food information is not supplied in the market. Special provisions are also foreseen for food business operators.

Rules for prepacked foods offered for sale by means of distance communication constitute an innovative and interesting point of the new legislation. What do they stipulate?

 

In this case, it is foreseen that mandatory food information, except the “use by” date, shall be “available before” the purchase is concluded and shall appear on the material supporting the distance selling or be provided through other appropriate means clearly identified by the food business operator. When other appropriate means are used, the mandatory food information shall be provided without the food business operator charging consumers supplementary costs”. Nonetheless, all mandatory particulars shall be available at the moment of delivery. In contrast, the above rule does not apply to foods offered for sale by means of automatic vending machines or automated commercial premises.

 

Our law firm’s comment

Judging from the increasing trend of food litigation cases in the other side of the Atlantic, we firmly believe that it is essential for business operators in the food industry to become familiarized with the current legislation. In this way, they will ensure consumers’ awareness as well as the provision of high quality food. At the same time, they will also achieve to avoid disputes with dissatisfied consumers or consumer associations, as well as competent authorities. In our opinion, legal security and law clarity represents a positive outcome for both consumers and entrepreneurs.