Legislation Update: Food Claims on Labels – the European Perspective

Food law in the European Union (EU) has undergone considerable change in recent months. Food legislation expert, Dominic Watkins, senior associate in the Food Sector group at business law firm DWF explores these changes and what they mean for the frozen food industry.

It has been seven months since the official Register of Nutrition and Health Claims came into force in the EU, which stipulates that a claim about food health benefits may only be made by manufacturers if it appears on the register. It remains possible to make general, non-specific claims, such as ’good for you‘, but only if it is followed by one that is more specific and included on the register as an explanation of the first claim. Despite the system’s apparent simplicity, it is rife with issues, many of which remain unresolved, such as the exact language to be used to describe claims. The EU has made clear that it is not necessary to use the precise wording of the claims found in the official register as long as what is used has the same meaning for the consumer. This generally means that, provided the word used is synonymous and does not strengthen the claim, it should be compliant. However, this flexibility can be challenging for manufacturers as it leaves space for subjectivity, meaning that the acceptability of the proposed language is not always clear.

The register is also problematic in that it has been interpreted as applying not only to written claims, but also those in the form of graphics or pictorial representations and those that merely suggest or imply. When one also considers the broad way that the general claim provision can be interpreted, there is cause for concern as almost anything could be construed as a claim and certainly anything containing the word ‘healthy’ is likely to be. As only 222 of the 1500 claims formally assessed by the European Food Safety Authority (EFSA) have been approved, it would be easy to be pessimistic about the scope for claiming health benefits in the future. But by being creative and taking advantage of the ingredients already in the product, or by fortifying it with additional vitamins or minerals, a huge range of compliant claims are possible. There are nine different nutrients that, if present at a level of more than 15 per cent recommended daily allowance (RDA), would allow manufacturers to make an energy claim. Similarly, the addition of a common vitamin, such as vitamin C, would allow up to 15 different claims to be made. Not all would be relevant to the product’s brand proposition, but for those that do, there are cost-effective ways to make them applicable to the product.

Food Information Regulation

Over the next three years, the Food Information Regulation (FIR) will come into effect across the EU, replacing the Food Labelling Regulation. While many of the provisions of the FIR will be familiar to much of the food industry, there have been significant updates, including the replacement of detailed UK-specific obligations with more general EU-style requirements:

On-pack information

The FIR now requires manufacturers to print a wider range of information on food packaging and labelling. This includes the food name, ingredient list, allergenic ingredients or processing aids used in the product’s manufacture, the quantity of certain ingredients and a nutrition declaration. Packaging should also display the product’s net quantity, its ‘use by’ date, the food’s required storage conditions, as well as the name and address of the manufacturer. The packaging is now required to state the product’s country of origin. The FIR also stipulates that labelling should include instructions for use where it would be difficult to make appropriate use of the product without such recommendations. In the case of beverages, alcohol content by volume greater than 1.2 per cent should also be stated.

Frozen food

Frozen food manufacturers will also need to state the ‘physical condition’ of the food, including whether it has been ‘refrozen’, ‘freeze-dried’ or ‘quick-frozen’. If foods have been frozen then defrosted prior to sale, manufacturers should provide a clear description of ‘defrosted’ on the packaging. Labelling must now state the date when the product was frozen, in the format: ‘Frozen on day/month/year’. As with use by dates, it is acceptable to ‘signpost’ where this information can be found elsewhere on the packaging.

Nutrition declarations

The nutritional information required by the FIR to be shown on the pack has also been amended. Not only is the list of nutrients now different, with fibre declarations no longer obligatory, sodium content must now be referred to as salt content. Other nutritional information that must appear on labelling includes energy, fat, saturates, carbohydrates, sugars and protein. Under the regulation, this information must appear together on the pack and must now be laid out in a tabular form. However, if there is not enough space for this, then the FIR allows information to be laid out in a linear format.

Provenance

The country of origin has long been a contentious issue in the food sector, especially for meat. The FIR states that the country of origin must now be clearly stated on all pork, lamb, goat or poultry products, regardless of whether they are fresh, chilled or frozen.

Stand out from the crowd

For allergens, the FIR requires that labelling should draw the consumer’s attention to each ingredient and processing aid that could cause a reaction. This should be done “through a typeset that clearly distinguishes it from the rest of the list of ingredients, by means of the font, style or background colour”. The exact meaning of this is open to interpretation. In the UK, for example, regulators have already informally indicated that the widely used ‘allergen box’ – a separate box with a different background colour and bold text – would not be sufficient to meet the new criteria.

Less room for marketing?

Font size for labelling now comes under the remit of the FIR, which now requires the information to be at least 1.2mm in size where the packaging’s largest surface area is greater than 80cm². For packaging that is smaller than this, the stipulated font size is 0.9mm, while there is a reduced requirement for packaging smaller than 10cm² to bear information. Nevertheless, by setting a minimum font size, the FIR will significantly increase the size of some of the mandatory wording on product packaging. This will impact the ability to carry key marketing and branding messages for some products, such as those whose surface area only slightly exceeds the 80cm² threshold, creating new challenges for product marketing. Despite the intention of the EU to create an over-arching regime for the region, the FIR allows scope for the development of subordinate legislation by member states to achieve more specific objectives. This means that there is the potential for further legislation allowing, for instance, the use of symbols or pictograms rather than words to convey information. Neither the EU nor UK authorities have provided any substantive guidance on the FIR yet, but comprehensive advice is expected to be released later this year.

Problematic pricing

For some time, pricing has been a key battle ground for retailers and for food manufacturers too. While pricing is primarily a retailer issue, the resurgence of on-pack flash pricing messages means that manufacturers can have liability. Superficially, price promotions are simple, as is the law governing them – if an offer is misleading and the consumer cannot understand it, it is likely to be unlawful. Unfortunately, this is too simplistic an analysis, and despite the recent Office of Fair Trading (OFT) Promotional Pricing Principles, the situation is likely to become more complicated:

What do the latest principles cover?

The changes to the OFT principles are concerned primarily with pre-printed on-pack value claims and reference pricing, such as ‘was-now’ pricing, where a previous selling price is used to highlight the potential savings offered by the current selling price. With regards to on-pack pricing, it is now considered misleading for a product to carry a message stating that it is the ‘best value’ if there is another way of buying the same volume of product in the same store at a lesser price. The main inconsistency between the new principles and existing guidance is the exemption that allows the retailer to overlook the guidance, providing that the basis of the price comparison is made explicitly clear. Although this is consistent with criminal law in this area, the OFT does not comment on whether this practice is acceptable, leaving significant ambiguity for the industry. While the ambiguity regarding the use of explanatory text for price comparisons still exists, the OFT has made explicit updates to its principles. Changes to the principles regarding price reduction have been made, with the OFT now suggesting that comparisons between peak season pricing with off-season for products, such as soft fruit is misleading, something that manufacturers and retailers may question. OFT expectations regarding reference pricing have shifted as well. Comparisons can now only be made against prices charged fewer than two months ago, whereas previous recommendations allowed six months. Products can only be available at the ‘now’ price for less time than they were at the higher price. Actively establishing a higher price to advertise a later discount is not acceptable under the new principles.

Are these guidelines really necessary?

In law, a consumer is defined as one that is ‘reasonably well informed’, ‘reasonably observant’ and ‘circumspect’. If consumers are happy to pay a price and decide whether or not something is a good deal, there is debate whether retailers can really be accused of misleading them. It is highly questionable whether abiding by these principles will make any real difference to retailers, as ultimately, all transactions are reliant on the consumer’s decision to buy.

A changing time

There have been a number of developments in food regulations in recent years, a trend that looks set to continue in the future. It is crucial that manufacturers and retailers in the industry stay up-to-date to ensure they comply and continue to be able to operate in their chosen markets. While there are challenges, manufacturers should take advantages of the advice available to help them grow their business.