We anticipate that the rest of 2017 will see consumers continue to focus on the health and nutrition benefits of what they eat. For food business operators (“FBOs”) this means that food labelling must be both accurate and effective.
Nutrients, Allergens and Free From
Under Regulation (EU) No. 1169/2011 on the provision of food information to consumers (“FIC”), 14 everyday allergens ingredients including nuts, milk, gluten, soya and wheat must be easily identifiable in the ingredients list in bold, italics, highlight or underline. These measures cover not only supermarkets but any establishment in which food is served. Furthermore, one of the final stages of implementation of FIC was achieved at the end of last year when nutrition declarations on pre-packaged foods become mandatory.
In contrast, gluten labelling has been mandatory for some time. Regulation (EC) No 41/2009 set defined levels of gluten for foods said to be either ‘gluten-free’ or ‘very low gluten’. In July 2016 Regulation (EU) 828/2014 stipulated the composition of ‘gluten free’ or ‘reduced’ levels of gluten.
Although legislation in relation to allergens has had the positive effect of providing greater clarity and certainty to consumers, especially those suffering from allergies, FBOs must be alert to the financial and reputational repercussions of falling foul of these regulations. This may explain a rise in the use of ‘may contain’ and similar advisory warning statements. As a result the Food Standards Agency (“FSA”) has expressed concern that ‘may contain’ labelling is used too frequently and often unnecessarily by FBOs to the extent that it may be misleading.
The ‘health halo’
As FBOs seek to cater for familiar groups such as vegans and newly coined groups such as flexitarians, a plethora of claims, signs and colours are now appearing on packaging. Some feel that rather than improving clarity, much of this labelling is confusing and even misleading. For example, products which contain more than 3% of fat (and therefore do not qualify to claim ‘low fat’) are being branded as ‘light’. An investigation by the Consumers’ Association recently found some foods branded as ‘light’ have up to seven times more fat than those described as ‘low fat’.
Ambiguous or over-used claims can have the effect of undermining valid health warnings on products and may be seen as unnecessarily restricting consumer choice. Article 36 of FIC states that food information provided on a voluntary basis must not mislead consumers or be ambiguous or confusing. We may well see increasing challenges in the rest of the year over whether certain claims such as ‘light’ or ‘may contain’ are misleading and/or unfairly restrict consumer choice.
Flexitarian & Eco-labelling
Another trend for 2017 within the food industry aimed at providing trusted information is the practice by FBOs of partnering with organisations in order to offer allergen or eco-labelling schemes. This affords credibility to products and, where the partnering organisation is of a charitable or environmental persuasion, can also have positive reputational consequences.
However, many FBOs report that they have struggled with the investment required to obtain the benefits of certification. Consequently, a variety of schemes are being introduced in order to avoid the costly and burdensome procedures of existing schemes. This inevitably leads to a lack of consistency and again creates confusion amongst consumers.
Clearly a balance needs to be struck between providing consumers with the information they require to make an informed choice and giving too much or too little information resulting in ambiguous or misleading claims. FBOs are well advised to keep regulatory developments, FSA and local guidance, plus consumer trends under regular review throughout the year.