The Swedish National Food Agency (the "NFA") has issued a legislative proposal regarding the labelling and disclosure of information on non-prepacked food (the "Proposal"). The Proposal is part of a legislative package proposed by the NFA in the wake of Regulation 1169/2011 (the "Food Information Regulation") which is applicable in December 2014. The Proposal applies to all non-prepacked foods intended for consumers, including foods provided by mass caterers and foods which are intended for mass caterers and is to be published in the NFA's own Code of Statutes, LIVSFS (previously SLVFS).
EU vs national rules
The Food Information Regulation, which in most parts will become effective in December 2014, provides for a comprehensive set of rules regarding food information for consumers. According to the Food Information Regulation it will be compulsory to indicate ingredients, processing aids or ingredients derived from a substance or product causing allergies or intolerances used in the production or preparation of food. The Food Information Regulation contains a list of 14 substances and products causing allergies or intolerances such as eggs, fish, peanuts, milk, soybeans etc.
The provision of further information referred to in the Food Information Regulation, such as the net quantity of the food or the date of minimum durability or the ‘use by’ date, is not compulsory for the sale of non-prepacked food unless a Member State adopts national measures requiring the provision of some or all of those particulars or elements of those particulars. The Food Information Regulation, furthermore, defers to the Member State to adopt measures concerning the means through which the information of the particulars or elements of those particulars are to be made available and, where appropriate, their form of expression and presentation.
Particulars of the Proposal
The Proposal requires that Swedish businesses who offer non-prepacked foods to consumers shall provide the consumers with more particulars than are compulsory to provide under the Food Information Regulation. According to the Proposal the legal name of the food shall be provided, upon request, for non-prepacked foods offered for sale to consumers and the information shall be provided under the same circumstances as is required for pre-packed foods.
In addition, the Proposal provides that certain information, which is compulsory to provide on pre-packaged foods, shall also be provided upon request for foods which are offered for sale and are packed in the sales premises at the consumer's request or packed for direct sale (i.e., non-prepacked food).
Under the Proposal the consumer would have the right, upon request, to receive the following information:
- a list of the ingredients;
- the net quantity of the food;
- the date of minimum durability or the ‘use by’ date;
- any special storage conditions and/or conditions of use;
- the name or business name and address of the food business operator responsible for the food information, which shall be the operator under whose name or business name the food is marketed or, if that operator is not established in the EU, the importer into the EU;
- the country of origin or place of provenance under the same circumstances when it is required in the Food Information Regulation for pre-packed food (e.g., where failure to indicate this might mislead the consumer as to the true country of origin or place of provenance of the food);
- instructions for use where it would be difficult to make appropriate use of the food in the absence of such instructions; and
- with respect to beverages containing more than 1.2 % by volume of alcohol, the actual alcoholic strength by volume.
The Proposal also provides rules regarding how, e.g., information about substances and products causing allergies or intolerances shall be communicated to the consumer. The relevant information may be provided by means of:
- a written notice or similar in the immediate proximity of the food;
- written material which is presented or accompanies the food;
- oral communication;
- the legal name of the food (provided that it is clear from the name that the substance or product constitutes an ingredient or processing aid); or
- through other methods provided that the information, if necessary, can be provided orally.
If the food business operator chooses to provide the information only after a request from the consumer, the operator would need to ensure that it was clear how the consumer can access to the information. Particular information on how to access the information may be given in writing e.g., through a notice or in a menu or orally. Such particular information does not have to be provided in cases where the consumer's allergies and hypersensitivities have been documented in advance and thereby ascertained. This may be the case e.g., when a person is hospitalised since allergies and hypersensitivities are recorded in the patient chart and the food is provided based on this information. This means that in such case the provider of the food does not need to put up signs on how information on allergens can be given. However, all other rules are applicable in such cases, meaning that the consumer who orders the food or gets provided with the food in e.g., a hospital has the right to get information on whether the food contains any of the 14 allergens, listed in the Food Information Regulation and the further information which shall be provided upon request in accordance with the Proposal.
Status of the Proposal
The NFA sent the Proposal out for remittance in May 2014 and it appeared that the legislation proposed raised significant interest from interested parties. Remittances and comments were submitted to the NFA from trade industry organisations and trade interest organisations as well as individuals. Several parties argued that the new rules are not sufficient and state that they would have liked to see a greater responsibility for restaurant owners to disclose all ingredients in their food. Meanwhile many caterers expressed the view that the new rules go too far, as they require too much of individual restaurants placing a too great a burden on these operators, which might create difficulties in implementation.
The Proposal has now been communicated to the European Commission and will enter into force in Sweden on 13 December 2014.