The EU recognises as Geographical Indications many individual products that go to make up the Mediterranean Diet. Or, to reflect the first Recital of the Union’s GI law which provides for the protection of GIs, the EU law is aimed at recognising and protecting the living cultural and gastronomic heritage of Union food producers.
UNESCO goes further. UNESCO recognises the much wider concept of the Mediterranean Diet as part of the Intangible Cultural Heritage of Humanity. The group of countries promoting this initiative include 6 EU Member States (Cyprus, Croatia, Spain, Greece, Italy and Portugal) as well as Morocco.
Why does the EU and UNESCO give attention to the Mediterranean diet? The answer lies in understanding the term Diet. Today we often associate the word diet with sacrifice and the means to lose or control weight. This diminishes the original sense of the word. Thus it needs to be rescued from this diminished interpretation and given its full meaning.
Diet comes from the Greek diaita or ‘way of life’. As the UNESCO listing says:
The Mediterranean diet is characterized by a nutritional model that has remained constant over time and space, consisting mainly of olive oil, cereals, fresh or dried fruit and vegetables, a moderate amount of fish, dairy and meat, and many condiments and spices, all accompanied by wine or infusions, always respecting beliefs of each community.
It promotes social interaction, since communal meals are the cornerstone of social customs and festive events. It has given rise to a considerable body of knowledge, songs, maxims, tales and legends.
What has the Mediterranean Diet have to do with the law? And why should lawyers think about this wider cultural aspect of the Mediterranean diet when thinking about giving information to consumers? It comes down to thinking about what the law can and cannot do. And where the law fits into our common Mediterranean or European culture.
The law needs to recognise where it stands in the order of our civilisation. The law has a key role to play. But the law can never capture the complexities of the Mediterranean Diet. Why? Why because the law is only one part of our European or Mediterranean cultural heritage. And because it is only a part, it can never capture the whole.
But the law can do harm. And it can do most harm when it introduces new norms that do not respect the object and purpose of the law itself and the culture in which that law operates. The Traffic Light Labelling debate must be seen in this wider context.
There is general agreement that consumers must be informed so that they can make informed choices. But this general agreement becomes more nuanced or might even be said to break up when we consider how the consumer should be informed: on the label of a product or through education. Should the law merely inform the consumer in a passive manner or should the law be used to gently push or nudge the consumer in a certain direction or, going even further, should the law dictate certain actions and/or even prohibit certain foods.
The question becomes more difficult again when one considers what the consumer should be informed about. Do we just need to know about the quantities of calories and fats and proteins or do we need to know about the impacts of foods on our physical and mental well-being?
The basic EU law on the provision of information to consumers is Regulation 1169/2011. It provides that that all foods must be presented to the consumer with nutritional information. And that this nutritional information must be presented in a prescribed and neutral manner.
The question today is whether the law should abandon that neutrality and colour code the nutritional label such that those foods with high values for fats or salts or calories should have a red tagged beside them and those with low values a green colour tagged beside them and those in the middle a yellow colour This is the essence of traffic light labelling. Red for stop, green for go, and yellow/amber for take care.
The idea of traffic light labelling is that the consumer would be gently nudged into not purchasing products with lots of reds and to go for the products with lots of greens. If the EU were to introduce traffic light labelling rules it would be moving away from the neutrality of nutritional labelling which has been the basis of the law to date.
The problem is that many of the products that are part of the Mediterranean Diet would end up red. This would include olive oils to cheeses to pastas. And yet the Mediterranean Diet is known for the health and well being it brings us. It is ‘good’ nutrition in the widest sense of the meaning of the word diet.
Does traffic light labelling have the effect of nudging the consumer? Yes, it does. An online survey carries out by a Statale students, Valentina Cerrigone, mainly in Ireland and the UK showed that when confronted with a traffic light label showing Red for Fats, 59% said it was unhealthy. On this basis, the assumption is that they would tend not to purchase this product. So, if the purpose of the traffic light labelling is to nudge the consumer to make a particular choice, it works.
However, when these same consumers where shown that the product in question was extra virgin Olive Oil, 51% said they would change their minds. So, consumer who have time to look around and evaluate the nature of the ‘red’, they can overcome the ‘nudge’ and make different choices. But how much time do consumers have. The survey showed that the vast majority of consumers spend very short times looking. Colours make it easier to see. And this is the essence of nudging.
Clearly the introduction of traffic light labelling might do harm to the Mediterranean diet. Should the law be used to let this happen when it is known that the diet and the products that make it up contribute to one of the most healthy and long lived life styles. This is particularly so when it can be strongly argued that traffic light labelling is not in line with the law. The law prohibits health claims if they are not tested and true and approved by the appropriate competent authority. The use of health claims in relation to foods is severely restricted. The very idea of traffic light labelling is that Green is healthy and Red unhealthy. So in that sense the system is a health claim.
Care must be taken in how the law is used. And the law must not be used to diminish the law itself and the culture in which that law must operate. Ways other than the traffic light labelling must be found to answer the how and the what of food labelling law.