On 21 February 2011, the EU Council of Agriculture Ministers adopted a common position on the draft Regulation on food information to consumers . This proposal, presented by the European Commission more than two years ago, aims to lay down EU-wide harmonised rules on food labelling. The EU decision-making process provides that the European Commission proposal is examined and subsequently adopted, often with amendments to the original proposal, by both the European Parliament and the EU Council.
The European Parliament adopted its so-called "first-reading" opinion in June last year (see our Update of 18 June 2010 here. The EU Council's common position is the next step in the legislative process of redesigning food labelling rules in the EU.
Why is this an important development?
The proposal on food information to consumers has proven to be a controversial proposal into which many stakeholders have provided input. A number of key EU Member States (e.g., the United Kingdom, Sweden), in the absence of clear rules at EU level, have proceeded to adopt rules at national level on issues such as, for example, front-of-pack labelling which may now need to be re-evaluated in light of the European Commission's proposal. The EU Council's common position therefore provides a valuable insight into the position of EU Member States on key issues in this controversial proposal, and therefore, it provides useful guidance on the likely direction of future EU labelling policy. Future changes in EU labelling rules impact on all food companies involved in the marketing of foodstuffs in the EU. Those responsible within food companies for compliance with labelling requirements and design/marketing will benefit from understanding and anticipating the likely direction of EU labelling.
Purpose of the Regulation
The Regulation aims to merge, simplify and amend the provisions of two existing EU Directives that deal with the labelling, presentation and advertising of foodstuffs (Directive 2000/13/EC), as well as with nutrition labelling (Directive 90/496/EEC). The new act will have the status of a "Regulation" which implies that the measure, upon adoption, is directly applicable in all Member States throughout the EU. It would not require transposition into national laws, prior to becoming effective. Furthermore, adoption as a "Regulation" should help guarantee its uniform application throughout the European Union.
The position of the EU institutions on the essential parts of the proposal
- Nutrition labelling for key nutrients
All three institutions agree that labelling of nutrition information should, in principle, be mandatory. This is the key change in comparison with current EU food labelling rules where provision of such information is voluntary, unless nutrient content claims are made. However, the EU institutions differ over the scope of the mandatory and optional nutrition declarations, particularly with regard to proteins, starch, fibres and natural and artificial trans-fats. The table below provides an overview of the respective positions.
Please click here to view table.
- Expression per "100 g" / "100 ml" or "portion"
Under current EU food labelling rules, nutrition information may be expressed per 100g/ml and in addition per "serving" or "portion" if quantified on the labelling. The European Commission proposal, however, envisaged the possibility to indicate nutrition information either per 100 g or per 100 ml or per portion.
The European Parliament considered, however, that such flexibility would not provide the consumer with the correct grounds for comparison of different types of products. In addition, expression per 100g/ml may mislead consumers as they do not usually eat servings of 100 g/ml. Therefore, the European Parliament amendment required the indication of the quantity of nutrients in both 100 g/ml, as well as per portion.
The EU Council, however, rejected this position and proposed coming back to currently applicable rules, although nuanced. The expression per 100 g or per 100 ml should be mandatory and the expression per portion may be indicated in addition. It is only with respect to nutrients whose indication in the nutrition declaration is voluntary that the quantity may be expressed per portion instead of 100 g/ml.
- Recommended Daily Allowances (RDAs) and reference daily intakes
Under currently applicable rules, vitamins and minerals have established Recommended Daily Allowances (RDAs) - values that indicate the recommended daily consumption of these nutrients. In its draft Regulation, the European Commission proposes the introduction of reference intakes for other nutrients, namely energy, total fat, saturates, carbohydrate, sugars and salt.
The European Parliament supports the idea of reference daily intakes for nutrients other than vitamins and minerals, but makes the establishment of final values subject to an opinion from the European Food Safety Authority (EFSA).
The EU Council supports the European Commission position and does not consider it is necessary for EFSA to review these nutrient values. The EU Council, in addition, proposes a modification of current rules on what constitutes a significant amount of vitamins and minerals. The "significant amount" criterion constitutes an important reference for the possibility to make nutrition and health claims on vitamins and minerals. The EU Council proposes that a "significant amount" shall constitute at least 15% of the specified RDA per 100g, 7,5% of the RDA per 100 ml and 15% of the RDA per portion.
- Presentation and Legibility
The three EU institutions have diverging views as regards rules on presentation and legibility of labelling particulars.
The European Commission proposed to put all nutrition labelling particulars, both mandatory and voluntary, in the "principal field of vision". "Principal field of vision", not defined in current legislation, is defined in the proposed legislation as the field of vision that is most likely to be displayed or visible under normal or customary conditions of sale or use. It also opted for a minimum font size of 3 mm and required a significant contrast between the text and the background.
The European Parliament rejected the idea of a minimum font size focusing instead on a "clear legibility" taking into account factors such as font size/type, contrast, line and character pitch. According to the European Parliament, only mandatory labelling particulars should be placed front-of-pack. Specific provisions were included for the indication of energy value which should be highlighted in the bottom-right hand corner of the pack, surrounded by a border and printed in characters of at least 3 mm.
The EU Council, however, comes back to the idea of a minimum font size which is to take the shape of a so-called "x"-height (the height of the letter "x") of 1,2mm (or 0.9 mm for packaging whose surface is less than 60 cm2). It also supports the requirement of significant contrast introduced by the European Commission. As regards presentation of nutrition information, all particulars should be placed in the same field of vision, either front-of-pack or back-of-pack. The Parliament's idea to highlight one element of a nutrition declaration, namely energy value, to the detriment of other was rejected.
- Additional Forms of Expression / National schemes
There are currently several national schemes in force at EU Member State level that allow or require special forms of expression of nutrient values on food labels. The most known is probably the UK Traffic Lights System where the level of nutrients contained in the product and its health relation is depicted by red, amber or green indications. Other examples include the front-of-pack labelling initiative launched and promoted by CIAA (the European food and drink industry association) or the Swedish "key-hole" approach which allows consumer to identify healthier food products within a product group.
The European Commission proposal aims to preserve the right for EU Member States to adopt such schemes. Therefore, the proposal allows for additional forms of expression of nutrient values within national schemes. Such forms of expression would, however, need to be notified to the European Commission.
The European Parliament, however, perceived this option as being contrary to the idea of harmonisation of food labelling rules and the creation of one internal market. The Parliament deleted the option with respect to national schemes from the draft Regulation and allowed only for minimal additional requirements for forms of expression of nutrition information.
The EU Council supports, in principle, the amendments introduced by the Parliament.
- Origin labelling
Origin labelling is another issue on which the three institutions find it difficult to reach a compromise.
The European Commission proposal aims to maintain existing rules on origin labelling which require the indication of food origin or provenance only when a failure to do so is likely to mislead the consumer to a material degree. In all other instances, the indication of origin would remain voluntary. However, the European Commission did propose to clarify the rules where the country of origin of the product is not the same as the country of origin of its primary ingredients. In such cases, the origin of the product's primary ingredients (i.e., the significant and/or characterising ingredients of a food) would also need to be indicated. In addition, with regard to meat other than beef and veal (and products thereof), the European Commission proposes that the indication of a single place of origin would only be possible if the animals are born, reared and slaughtered in the same country or place. In all other situations, each of the different locations would need to be indicated. The European Commission also proposed to introduce harmonised criteria for the voluntary indication of EU origin ("made in the EU") or of that of a particular country or place whether in the EU or outside.
The European Parliament, on the other hand, proposes mandatory origin labelling for meat, poultry, dairy products, fresh fruit and vegetables, other single-ingredient products as well as for meat, poultry and fish when used as an ingredient in processed foods. It agrees with the European Commission on the possibility to indicate single place of origin for meat and poultry only if animals were born, reared and slaughtered in the same country or place. It allows, however, for the indication that food is "of unspecified origin" if it is not practical to label the origin. For all other foods the origin should be indicated according to current rules, in other words where failure to do so might mislead the consumer.
The EU Council proposes mandatory indication of country of origin where it may otherwise mislead the consumer, as well as for beef, swine, sheep, goat and poultry meat. It would also welcome harmonised criteria for a voluntary indication of origin. The EU Council also supports the European Commission's proposal that the country of origin of the primary ingredients should be indicated where it is not the same as that of the country of origin of the product. Alternatively, an indication that the origin of the product is not the same as that of the product's main ingredients should be provided. Contrary to the view of the European Parliament, mandatory declaration of origin for types of meat other than beef, swine, sheep, goat and poultry meat, milk, milk used as an ingredient in dairy products, meat used as an ingredient, unprocessed foods, single-ingredient products and ingredients that represent more than 50 % of a food should only be considered following a report from the European Commission.
The EU Council's common position does not yet constitute a definitive Regulation. It will be forwarded to the European Parliament for a "second reading". A report on the EU Council common position, to be drafted by Renate Sommer (MEP - Member of the European Parliament) is planned to be voted on 12 April 2011 within the European Parliament's Environment, Public Health and Food Safety Committee. A vote in the European Parliament's plenary session is foreseen for 5 July 2011. If agreement by the European Parliament and the EU Council is reached at this stage, the Regulation could be published at the earliest sometime in the Autumn of 2011.
However, it is more likely that the European Parliament does not agree with the amendments proposed last week by the EU Council. In this scenario, the European Parliament opinion will be forwarded with the European Parliament's comments to the EU Council for a second reading. The EU Council would need to respond within a three month period, probably sometime towards the end of 2011, possibly even the beginning of 2012.
If again no compromise between the EU Council and the European Parliament is reached the so called "conciliation procedure" would be launched. This procedure provides for a set of formal negotiations with fixed time-lines during which the three institutions would need to reach a satisfactory compromise. A conciliation procedure would likely postpone adoption of any measure by another 3-4 months and we would likely not expect formal publication of any Regulation before mid-2012.
The Regulation would enter into force 20 days following its publication in the Official Journal of the European Union. In respect of certain provisions, transition periods would apply. For example, the European Commission and the European Parliament propose that the provisions on presentation of labelling particulars and on mandatory nutrition declaration should benefit from a 3 year transition period. For SMEs, this period would be extended to 5 years. The EU Council does foresee a date - yet to be specified - as from which the provisions will apply with the possibility to continue to market foods labelled, and legally on the market, prior to this date. The EU Council does not foresee a special transition period for SMEs.
Given the differing positions of the European Commission, the European Parliament and the EU Council on this dossier, it is difficult to predict, at this stage, any final outcome of the process. What is clear though, is that this dossier merits close monitoring over the next couple of months. Any interested party still wishing to influence the process should be aware that time is running out.