This article was originally printed in EU Food Law.

The current provisions of the Food Information to Consumers Regulation No. 1169/2011 exempt alcoholic beverages containing more than 1,2 % by volume of alcohol from the mandatory labelling requirement to provide an ingredients list and a nutrition declaration, writes Katia Merten-Lentz of international law firm Keller and Heckman.

Food operators can include such information on alcoholic beverages containing more than 1,2 % by volume of alcohol on a voluntary basis.

Article 30 (4) of the Food Information to Consumers (FIC) Regulation allows a limit on the nutrition declaration to just the energy value on alcoholic beverages if it is provided voluntarily.

This represents another example of preferential treatment for alcoholic beverages under the FIC Regulation, taking into account that the nutrition declaration should generally be fully provided, even if the nutritional declaration is provided voluntarily.

For instance, if the nutrition declaration is given voluntarily on foods that are exempted from the requirement of the mandatory nutrition declaration under the FIC Regulation, like for example chewing gums, the nutrition declaration must provide the energy value, but also the amounts of fat, saturates, carbohydrate, sugars, protein, and salt.

Furthermore, Article 34 (4) of the FIC Regulation exempts alcoholic beverages from the general requirement to provide the nutrition declaration in a tabular format. Based on this provision, alcoholic beverages can provide the nutrition declaration in a different format other than the tabular format.

Although the FIC Regulation exempts alcoholic beverages from the requirement to provide an ingredients list on the label, it explicitly allows Member States to maintain national measures with regard to the provision of an ingredients list on alcoholic beverages.

In several Member States, these national measures exist in order to regulate the labelling of ingredients for alcoholic beverages, like in Germany, where pre-packaged beer must be labeled with a list of ingredients.

The Commission Report Despite the specific exemptions for alcoholic beverages incorporated in the FIC Regulation, the Commission had the obligation to produce a report on whether alcoholic beverages should be covered in the future by the mandatorylabelling requirement to provide the ingredients list and nutrition declaration. The report must also include reasons justifying possible exemptions.

On 13 March 2017, the Commission published the report. The Report states that: “On the basis of the information reviewed, the Commission has not identified objective grounds that would justify the absence of information on ingredients and nutrition information on alcoholic beverages or a differentiated treatment for some alcoholic beverages, such as 'alcopops'.”

In other words, the Commission essentially concluded that alcoholic beverages should comply with the same labelling requirements as other food products and, therefore, they should indicate on their labels an ingredients list and a nutrition declaration.

"If the Commission considers the (industry) proposal to be insufficient or unsatisfactory, it will launch an impact assessment on possible regulatory and non-regulatory options regarding the labeling of alcoholic beverages"

The Commission then requested the alcohol industry to present a self-regulatory proposal covering the entire sector of alcoholic beverages in view of consumer expectations.

One year later, on 12 March 2018, the requested self-regulatory proposal was submitted by the alcohol industry to the Commission. The presented proposal consists of a common part applicable to the whole alcoholic beverages industry, complemented by four annexes detailing how the general commitments are implemented for each respective industry sector, i.e., beer, spirits, wine and aromatized wine, cider and fruit wine.

In general, the industry commits that “[t]he nutrition information and the list of ingredients of our products will be provided to consumers off-label and/or on label where information provided off-label will be easily accessible from the label itself, either by a web-link, a QR code, a barcode or through other direct means using smart technologies.”

On this basis, the alcohol industry envisages a dual, flexible approach based on which the nutritional information and the ingredients lists may either be provided on the label or online, depending on the discretion of the individual business operator.

The proposal also specifies that the nutrition declaration can be limited to the energy value with reference to Article 30 (4) of the FIC Regulation and may be presented in a format other than the tabular format based on Article 34 (4) of the FIC Regulation. In this context, certain sectors – such as the wine and aromatized wine sector – intend to use symbols, like ‘E’ for energy, for the nutrition declaration.

A specific position is taken by the Spirits Industry in the corresponding sectorial annex to the common proposal in relation to the expression of the nutritional values, like the energy value, per 100 ml as required under the FIC Regulation.

In detail, the Spirits Industry considers that the indication per 100 ml would be misleading for consumers as spirits are never served in 100 ml portions and would go against messages on responsible drinking. The Spirits Sector argues, therefore, that nutritional values for spirits should be rather given per serving size.

The Commission is currently assessing the proposal received from the alcohol industry. If the Commission considers the proposal to be insufficient or unsatisfactory, it will launch an impact assessment on possible regulatory and non-regulatory options regarding the labeling of alcoholic beverages.

Industry proposal criticised Indeed, certain aspects of the proposal must be questioned with regard to their compliance with the standards established by the FIC Regulation. Principally, the approach to provide the ingredients list and the nutritional information off-pack, i.e., online, is not covered by provisions of the FIC Regulation.

These rules determine that mandatory labelling particulars, including the ingredients list and the nutrition declaration, must be easily accessible for the consumer and must, therefore, directly appear on the package. Certainly, the suggestion of the spirits sector to provide nutritional values per portion size for spirits is not in line with the general obligation under the FIC Regulation to provide such values per 100 g or 100 ml.

At the same time, many other foods that are also not consumed in portions of 100 g or 100 ml are compelled to comply with the general requirement to express nutritional values per 100 g or 100 ml.

Against this background and in view of the conclusion by the European Commission in its report that the absence of the ingredients list and the nutrition declaration on alcoholic beverages cannot be justified by any means, it is doubtful that the Commission would accept the presented self-regulatory proposal by the alcohol industry that essentially prolongs the current exemption of alcoholic beverages from providing the ingredients list and the nutrition declaration on the packaging.

Labeling of Alcoholic Beverages in the EU: The Existing Regulatory Framework under Regulation 1169/2011 and the Self-Regulatory Proposal Presented by Industry

The current provisions of the EU Labeling Regulation No. 1169/2011 exempt alcoholic beverages containing more than 1,2 % by volume of alcohol from the mandatory labeling requirement to provide an ingredients list and a nutrition declaration. Food operators may include such information on alcoholic beverages containing more than 1,2 % by volume of alcohol on a voluntary basis.

More specifically, the EU Labeling Regulation attempts to encourage business operators to provide on a voluntary basis the information contained in the nutrition declaration for of foods, for example alcoholic beverages. In this respect, Article 30 (4) of the EU Labeling Regulation allows to limit the nutrition declaration to only the indication of the energy value on alcoholic beverages, if it is provided voluntarily. This represents another example of preferential treatment for alcoholic beverages under the EU Labeling Regulation, taking into account that the nutrition declaration should generally be fully provided, even if the nutritional declaration is provided voluntarily. For instance, if the nutrition declaration is given voluntarily on foods that are exempted from the requirement of the mandatory nutrition declaration under the EU Labeling Regulation, like for example chewing gums, the nutrition declaration must provide the energy value, but also the amounts of fat, saturates, carbohydrate, sugars, protein and salt. Furthermore, Article 34 (4) of the EU Labeling Regulation grants for a specific exemption to alcoholic beverages from the general requirement to provide the nutrition declaration in a tabular format. Based on this provision, alcoholic beverages can provide the nutrition declaration in a different format than the tabular format.

Although the EU Labeling Regulation exempts alcoholic beverages from the requirement to provide an ingredients list on the label, it explicitly allows Member States to maintain national measures with regard to the provision of an ingredients list on alcoholic beverages. In several Member States such national measures exist regulating the labeling of ingredients for alcoholic beverages, like in Germany, where pre-packaged beer must be labelled with a list of ingredients[1].

Despite the specific exemptions for alcoholic beverages incorporated in the EU Labeling Regulation, the Commission has the obligation to produce a report on whether alcoholic beverages should be covered in the future by the mandatory labeling requirement to provide the ingredients list and nutrition declaration. The report must also include reasons justifying possible exemptions, suggested that the exemptions may be only be of tentative nature.

On 13 March 2017, the Commission published this report as required under the EU Labeling Regulation regarding to the mandatory labeling of the list of ingredients and the nutrition declaration of alcoholic beverages[2]. The Report states that: “On the basis of the information reviewed, the Commission has not identified objective grounds that would justify the absence of information on ingredients and nutrition information on alcoholic beverages or a differentiated treatment for some alcoholic beverages, such as 'alcopops'.” In other terms, the Commission essentially concluded that alcoholic beverages should comply to the same labeling requirements as other food products and, therefore, they should indicate on their labels an ingredients list and a nutrition declaration.

As a result of/Following its findings, the Commission requested the alcohol industry to present a self-regulatory proposal covering the entire sector of alcoholic beverages in view of consumer expectations.

One year later, on 12 March 2018, the requested self-regulatory proposal was submitted by the alcohol industry to the Commission. The presented proposal[3] consists of a common part applicable to the whole industry of alcoholic beverages, complemented by four annexes detailing how the general commitments are implemented for each respective industry sector, i.e., beer, spirits, wine and aromatized wine, cider and fruit wine. In general, the industry commits that “[t]he nutrition information and the list of ingredients of our products will be provided to consumers off-label and/or on label where information provided off-label will be easily accessible from the label itself, either by a web-link, a QR code, a bar code or through other direct means using smart technologies.”

On this basis, the alcohol industry envisages a dual, flexible approach based on which the nutritional information and the ingredients lists may either be provided on the label or online, depending on the discretion of the individual business operator. The proposal also specifies that the nutrition declaration can be limited to the energy value with reference to Article 30 (4) of the EU Labeling Regulation and may be presented in a format other than the tabular format based on Article 34 (4) of the EU Labeling Regulation. In this context, certain sectors – such as the wine and aromatized wine sector – intend to use symbols, like ‘E’ for energy, for the nutrition declaration.

A specific position is taken by the Spirits Industry in the corresponding sectorial annex to the common proposal in relation to the expression of the nutritional values, like the energy value, per 100 ml as required under the EU Labeling Regulation. In detail, the Spirits Industry considers that the indication per 100 ml would be misleading for consumers as spirits are never served in 100 ml portions and would go against messages on responsible drinking. The Spirits Sector argues, therefore, that nutritional values for spirits should be rather given per serving size.

The Commission is currently assessing the proposal received from the alcohol industry. If the Commission considers the proposal to be not sufficient or unsatisfactory, it will launch an impact assessment on possible regulatory and non-regulatory options regarding the labeling of alcoholic beverages. In the meantime, Member States seem to have taken a clear position on the industry proposal. Following the meeting of the Standing Committee on Plants, Animals, Food and Feed on 16 April, which discussed the self-regulatory proposal of the alcohol industry, several Member States criticized that the proposal is not in conformity with the EU Labeling Regulation.

Indeed, certain aspects of the proposal must be questioned with regard to their compliance with the standards established by the EU Labeling Regulation. Principally, the approach to provide the ingredients list and the nutritional information off-pack, i.e., online, is not covered by provisions of the EU Labeling Regulation. These rules determine that mandatory labeling particulars, including the ingredients list and the nutrition declaration, must be easily accessible for the consumer and must, therefore, directly appear on the package. Certainly, the suggestion of the spirits sector to provide nutritional values per portion size for spirits is not in line with the general obligation under the EU Labeling Regulation to provide such values per 100 g or 100 ml. At the same time, many other foods that are also not consumed in portions of 100 g or 100 ml are compelled to comply with the general requirement to express nutritional values per 100 g or 100 ml.

Against this background and in view of the conclusion by the Commission in its report that the absence of the ingredients list and the nutrition declaration on alcoholic beverages cannot be justified by any means, it is doubtful that the Commission would accept the presented self-regulatory proposal by the alcohol industry that essentially prolongs the current exemption of alcoholic beverages from providing the ingredients list and the nutrition declaration on the packaging.