Starting 13 December 2014, businesses will be required to comply with the great majority of the rules set forth in the EU’s Food Information Regulation (1169/2011). The Regulation went into force on 12 December 2011 but provided for a long, 3-year grace period, to allow food companies and EU member states to prepare for the new rules concerning labelling of food products. Among other things, the Regulation expands the list of information that must be provided on food labels and also imposes new duties concerning presentation of the information. Businesses face fines if they fail to comply with these obligations.

The Regulation exhaustively lists the information which it will be mandatory to provide on food labels, including such items as:

  • any ingredient or processing aid listed in Annex II to the Regulation or derived from a substance or product listed in Annex II 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
  • with respect to beverages containing more than 1.2% by volume of alcohol, the actual alcoholic strength by volume
  • a nutrition declaration.

This information must be provided in words and numbers, or using pictograms or symbols if they meet certain requirements, for example, if they enable the consumer to understand the importance of the food for its energy content and nutritional ingredients in the diet and are objective, based on reliable and scientifically sound consumer studies, and are not misleading to consumers.

Apart from the information referred to in the Regulation applicable to all food products, Annex III indicates additional information required to be included on the labels of certain types of foods, such as beverages with caffeine content and foods with added caffeine or containing sweeteners.

How information is presented

The mandatory information must be marked in a way that is clearly visible and legible. In addition to these general standards, the Regulation provides for minimum font sizes on the package or attached label: the letters must be at least 1.2 mm tall using the method for determining the font size specified in Annex IV to the Regulation. There is an exception for smaller packages or containers, “the largest surface of which has an area of less than 80 cm2,” in which case the minimum height of the letters is 0.9 mm.

An understanding of the phrase “largest surface … area” is vital for businesses’ compliance with their obligations under the Regulation, which makes it particularly surprising that this phrase is not defined in the Regulation. While it is clear in the case of packaging in rectangular box shapes that the largest surface area should mean the area of one of the largest sides, the question is more complicated in the case of packaging that is cylindrical or irregular. Poland’s Agricultural and Food Quality Inspection (IJHAR-S) proposes that for shapes other than rectangular box shapes, the largest surface area should be assumed to be equal to 1/3 of the total lateral area of the packaging, excluding the lid, the bottom, the collar around the lid etc. Without negating such proposals, it should be borne in mind that the packaging will be subject to evaluation under the applicable rules on a case-by-case basis.

When to begin compliance? Sell-off periods

The Regulation applies from 13 December 2014. Two years later, i.e. 13 December 2016, businesses will be required to begin providing nutritional declarations as a mandatory element of labelling (currently applied voluntarily). It should be pointed out, however, that if between 13 December 2014 and 13 December 2016 a business decides to provide or continue providing voluntary nutritional information, it must do so in compliance with the conditions set forth in the Regulation.

Foods which do not comply with the Regulation but were placed on the market or labelled prior to 13 December 2014 (or prior to 13 December 2016 in the case of nutritional declarations) may be marketed until the stocks of the foods are exhausted.

Notably, the provisions of the Regulation concerning nutritional declarations do not apply to food supplements or mineral waters—other regulations governing these types of products will continue to apply. In the case of foodstuffs intended for particular nutritional uses, the Regulation will apply only in matters not already governed by current law.

Changes in existing national laws

Because it is an act of EU law that is directly applicable in the member states, the Food Information Regulation does not require implementation into national law. Nonetheless, the member states must adapt current national laws by 13 December 2014 to insure that the regulations operate consistently. In Poland, the Sejm passed an Act Amending the Act on Commercial Quality of Agricultural and Food Products and the Food Safety and Nutrition Act on 26 September 2014 (Sejm document no. 2683). Work on this bill will continue in the Senate, but the wording of the bill is not expected to change very much. This means that food businesses can now review the probable wording of the new Polish regulations, which, if the legislative process goes smoothly, should be in force from 13 December 2014.

When the Food Information Regulation begins to apply, the Food Safety and Nutrition Act of 25 August 2006 will need to be amended. When the amending act referred to above enters into force, the existing national regulations governing food labelling will be repealed and from then on it will be governed exclusively in the Food Information Regulation. If products are not labelled in compliance with the Regulation, just as now under national law, businesses will be exposed to a fine of up to 30 times the average monthly wage (or up to five times the gross value of the disputed quantities of food).

The bill for the amendment also provides for repeal of the Regulation of the Minister of Agriculture and Rural Development of 10 July 2007 on Labelling of Foods. Those provisions would cease to be in force as of issuance of a new regulation by the minister pursuant to the Act on Commercial Quality of Agricultural and Food Products, but no later than 4 months after entry into force of the amending act. The new regulation will cover information provided in labelling of such items as foods sold without packaging or packaged at the point of sale.