In less than one month, we will enter a new era in food labeling law. The long awaited EU Regulation on the provision of food information to consumers (FIC) comes into force on 13 December 2014, meaning that for the first time, the same mandatory food labeling rules will apply across the EU. If you haven’t started already, Anne Marie Taylor, senior solicitor and Dominic Watkins, partner with DWF and head of the Food Group help you to prepare for what lies ahead.
FIC will affect food businesses across the entire supply chain, including manufacturers, retailers, wholesalers and food service establishments. It brings with it many changes and challenges, as well as unanswered questions (many of which relate to frozen food products).
If you haven’t started already, Anne Marie Taylor, Senior Solicitor and Dominic Watkins, Partner and head of the Food Group help you to prepare for what lies ahead.
To do list
If you think you’re behind the curve when it comes to FIC, don’t panic. We have compiled a list of the key FIC actions that you will need to consider before the 13th December:
Speak to your suppliers
Confirm with your suppliers that they are ready for the changes and will be delivering a compliant product and sufficient food information. FIC sets out tiered levels of responsibility for food businesses depending on their position in the supply chain. This means you’ll struggle to meet your FIC responsibilities if your suppliers don’t meet theirs first. For example:
• Food Business Operators (FBOs) that supply food products to other FBOs that are not intended for the final consumer (e.g. manufacturers selling ingredients to other manufacturers) have the least in terms of FIC duties. They need only provide enough information to enable the recipient FBO to meet their FIC obligations – e.g. providing details about an ingredient’s country of origin, allergens etc., so that the recipient manufacturer takes this into account when providing food information about the composite product to the next FBO in the supply chain; whereas
• Brand owners/EU importers have the highest level of obligation as they are responsible for the presence and accuracy of the food information on the final product.
• There are also shades in between depending on the FBOs position in the supply chain (wholesaler, retailer, and caterer) and whether the food is pre-packed or not.
Check your contracts
While most agreements will just require suppliers to comply with all relevant laws and regulation, some are more specific or contain defined lists of which legislation applies. We are seeing an increase in FBOs inserting specific FIC requirements into their agreements or sign additional documentation about FIC compliance, so check your contracts – they may contain FIC provisions that you are bound to meet – or indeed, you may wish to insert FIC provisions that bind your suppliers.
Book the printer
If you are the manufacturer or brand owner, you are responsible for the presence and accuracy of the food information. Check that your existing food labels and your templates for future products reflect the new requirements under FIC. If your labels need to be revised, call the printer now. They’ll no doubt be very busy this month.
Consider your brands
Even if you only sell third party products, you must not supply food that you ‘know or presume’ to be non-compliant and you must be able to ‘verify’ that this requirement is met. Know your brands – little, if indeed any, verification will need to be carried out in relation to products made by large food manufacturers, but you may decide that spot checks on a sample of products from your smaller producers are required.
Consider your allergens
There are a number of changes in relation to allergens. For repacked foods, the allergen box currently favored by many manufacturers will be prohibited; instead allergens must be emphasized in the ingredients list only using a distinctive font. Non-repacked food must also carry allergen information for the first time. This applies to loose foods sold in a retail setting as well as food supplied in a catering context , so check whether this could affect any sections of your business – even at head office. Getting allergens right is vital as the implementing national legislation in the UK specifically makes it an offence not to comply with the allergen requirements of FIC.
Distance sales
Mandatory information must be provided to the customer before the purchase is concluded. Update your website and catalogues so that the requisite mandatory particulars are provided for distance sales.
Key changes that may affect frozen food products
• Individual portions of ice-cream will no longer be exempt from having a minimum date of durability;
• Country of origin labelling for meat and products where the origin of the food indicated is not the same as that of its primary ingredient (in which case, the provenance of the primary ingredient must also be declared);
• Addition of ‘refrozen’ and ‘defrosted’ to physical conditions or specific treatments that must accompany the product name;
• Frozen product labels must contain two dates: the durability date and the ‘frozen on’ date – details have yet to be confirmed by DEFRA;
• Proteins added to a meat product that are of a different animal origin must be declared;
• Added water declarations must be made for meat products with more than 5% water;
• Meat and fish products that are made with different pieces and combined with other ingredients, but which give the impression of whole meat or fish must be labeled as ‘formed meat’ or ‘formed fish’;
• Additional rules relating to mincemeat labeling; and
• Mandatory nutrition declarations will be required from 2016, but any nutrition declarations provided on a voluntary basis as of 13th December must comply with the new prescribed format, which includes replacing the sodium declaration with a salt declaration.
It is important to remember that products that are already on the market before December can be sold through and do not need to be withdrawn.
To help businesses prepare, DWF has produced interactive labels showing some of the key changes and how the new laws may impact the industry. As always the devil is in the detail of the Regulations, they need to be reviewed fully to determine how the changes actually impact your product.
Just when we thought we had it nailed…
A number of questions surrounding the changes under FIC remain unanswered and there are more rules still to come. In particular, the European Parliament believes that there is a need to explore the possibility of extending mandatory origin labels to more foods, so it has instructed the Commission to prepare reports looking into the viability of origin labeling for seven further categories of food by 13 December 2014, (although we expect some may be delayed):
• Meat, other than beef, swine, sheep, goat and poultry;
• Milk
• Milk used as an ingredient in dairy products
• Meat used as an ingredient (this report was issued on 17 December 2013)
• Unprocessed foods
• Single ingredient products;
• Ingredients that represent more than 50 per cent of a food
FIC also changes the approach to enforcement of food labeling breaches; for example, giving trading standards the power to use improvement notices to deal with food labeling breaches that are not safety related for the first time. This power is extended to breaches of almost every provision in FIC and failure to comply with an improvement notice will be an offence in itself. We anticipate that this enforcement tool will be widely used by Trading Standards for non-safety related labeling offences, while safety breaches could be dealt with under other existing legislation (for example, selling food after the use by date could be prosecuted as an unsafe food under the Food Safety Act and/or domestic Regulations that create offences under Regulation 178/2002).
On paper, this change in approach to enforcement should streamline the regulatory regime, avoiding disproportionate and unnecessary prosecutions from clogging up the courts. If this is the case, this is a change that should surely be welcomed.
One thing is certain, while its commencement is almost upon us, FIC will remain to be one to watch for some time.