2013 will see food law in the midst of its biggest shift in many years. It will herald the enforcement of the permitted list of on-pack and advertising health claims, and will be the first full year of transition towards the change in labeling law created by the Food Information for Consumers Regulation. Dominic Watkins, Senior Associate in the food sector group at business law firm DWF, looks at the impact of the changes in packaging on the frozen food sector.
While there had been some degree of harmonization of food law across the European Union (EU) for many years, this was achieved using directives. As directives must be implemented across each member state, a ‘Chinese whispers’ situation can occur, where the message from the original directive is repeated verbatim in some member states but in others is very much diluted. This happened in this case, resulting in little consistency in food law across Europe. This had frustrated business trading throughout a number of countries, where different interpretations of the same laws had applied. Therefore, the EU set about creating a regulation that would set a standard across every member state. The EU realized that in the years since the previous directive, technology and food practices had developed significantly and the law needed to catch up. In particular, the new regulation observes the need to address new freezing technologies that did not exist when earlier laws were created.
Simplification and clarification have been key themes in the EU in recent years. In the interests of consistency, it has removed many directives covering many issues, each of which needed a corresponding law in a member state to be implemented. It replaced them with new overarching food law regulations, which do not require a separate law in a member state to be implemented. The Food Information for Consumers Regulation (FIR) is the latest in that lineage, and includes new regulations on food contact materials, additives and a regime regulating the use of nutrition and health claims.
Why should I think about this now?
The food industry is not required to comply with many of the requirements of the FIR until the end of 2014 and therefore it may seem early to start considering its implications. The FIR has, however, created a transition provision which allows the industry to select the regime it wishes to comply with. As packaging and labeling amendments are considered over the coming months, it is worth considering whether there might be an advantage to moving from the Food Labeling Regulations to the different requirements of the FIR regime and achieving future proofed compliance sooner rather than later.
So what has changed?
The food industry will be familiar with most of the concepts in the FIR due to their similarity to the existing regime. However, there have been many tweaks and in some cases detailed obligations from the UK have been lost and replaced with more general EU-style obligations. In most cases, changes are subtle, though there are a number of significant new requirements. A few of the more interesting changes are explained below:
Packaging and labeling requirements
One of the more significant changes is the obligation for food manufacturers to print a wider range of information on the packaging and labeling of food products. These requirements are a significant extension from the current regime. As discussed below, both providing information about the country of origin and declaring nutrition values are made mandatory.
Frozen food
Under the FIR, frozen food manufacturers will also need to state the ‘physical condition’ of the food, or what treatment it has undergone, for example, ‘refrozen’, ‘freeze-dried’ or ‘quick-frozen’. If foods have been frozen but were then defrosted prior to sale, there also needs to be a clear description of ‘defrosted’ on the packaging. There is also a new requirement to include the date that the product was frozen on the packaging. This must be laid out as: ‘Frozen on day/month/year’. As is the case with use by dates, it is acceptable to signpost where this information can be found. Typical signposting is found in the format ‘Frozen on: see base of pack’.
Nutritionally better for consumers?
The nutritional information that must be included on-pack has changed. Not only is the list of nutrients to be included in the declaration slightly different – for example fiber declarations are not obligatory – there has also been a move from ‘sodium’ to ‘salt’ in the declaration. Under the regulation, this information must appear in the same area of the label or packaging and must be laid out in a tabular form, which differs slightly to what would be done under the current regime. However, if there is not enough space for this, then the information can be laid out in a linear format.
A new terminology
We are familiar with ‘recommended daily allowances’ and ‘guideline daily allowances’ – more commonly known as RDA and GDA – that represent the amount of a vitamin or mineral that you are expected to consume. Rather than continuing to use these terms, the EU has decided to utilize an entirely new term, ‘daily reference intakes’ (DRI). In a world where manufacturers and consumers already have a seemingly unending range of intake guideline terminology, this new wording is of questionable benefit.
True roots
Country of origin has long been a contentious issue in the food sector, especially in terms of meat. The new FIR requirements state that the country of origin has to be clearly stated on all pork, sheep, and goat or poultry products, regardless of whether it is fresh, chilled or frozen. Under the new guidelines, a timeline has been set out to extend this obligation to other products in the future, so I would advise food manufacturers and producers to keep an eye on legislation updates.
Stand out from the crowd
With regards to allergens, the FIR requires that the information on the label or packaging 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, for example, by means of the font, style or background color’. The exact meaning of this is open to some interpretation. While on first reading it may appear straightforward enough, in the UK for example, regulators have already informally indicated that the widely used ‘allergen box’ – a separate box with a different background color and bold text – will no longer be sufficient to meet the criteria. Arguably though, if food manufacturers change nothing in response to this clause, they would still be complying with the spirit of the legislation as they would be making the information more noticeable to the consumer in the suggested manner.
Less room for marketing?
It has always been a requirement of the Food Labeling Regulations that the information on the packaging is ‘legible’. What exactly this means has not been defined until now. The FIR requires on-pack fonts to be a minimum size of 1.2mm where the packaging’s largest surface area is greater than 80cm². For packaging that is smaller than this, the minimum font size required is reduced to 0.9mm, while there is another reduced font requirement for packaging that is less than 10cm². By setting a minimum font size, the mandatory on-pack wording will increase significantly in size, particularly for those products with a surface area a little bigger than the 80cm² threshold. This will have an impact on space available to carry the marketing or branding messages that are key to selling the product in the first place. The move will also perhaps mean more of a disjoint between regulatory advisors and marketing teams, as mandatory information becomes more prominent.
Don’t mislead
In keeping with the Unfair Commercial Practices Directive, the FIR moves from specific prohibitions to more general ones. Such banned practices include ‘attributing to the food effects or properties which it does not possess’ or suggesting that the food possesses a special characteristic by specifically emphasizing the presence of an ingredient, when all products of that type have the same characteristic. This could apply, for instance, if it had been suggested that a particular dairy product is a source of protein when that would be true of all dairy products. There are a range of specific requirements found in the Food Labeling Regulations designed to stop claims being misleading that are not present in the FIR. One often used example is the ‘wholly or mainly’ rule, which requires the named flavor of a food to be derived ‘wholly or mainly’ from the ingredient named or illustrated on-pack. Despite it being the intention that the EU creates an overarching regime covering all member states, the FIR establishes a regime where a number of subordinate pieces of regulation may be created to achieve certain more specific objectives. This means that rather than there being a ‘one stop shop’ source of information, there will in fact be, or at least there is the potential for, further legislation allowing things like the use of symbols or pictograms rather than words.
What’s next?
Neither the EU nor the UK regulator has provided any substantive guidance on the FIR yet, but it is anticipated that such advice will be released later this year. Given the way the latest version of the Department of Health’s guidance on nutrition and health claims changed the UK Government’s position on a variety of key issues, it will be worth the food industry inspecting the FIR guidelines very closely, in order to ensure there are no nasty surprises when the regulation comes into force. The information in this article was researched by DWF LLP, one of the fastest growing law firms in the UK. It offers a full range of services to both businesses and private clients with teams specializing on all aspects of law, as well as providing specialist advice across a range of sectors including education, energy and infrastructure, financial services, food, health, insurance, public sector, real estate, retail, outsourcing and technology, and transport. With its offices based in Birmingham, Coventry, Edinburgh, Glasgow, Leeds, Liverpool, London, Manchester, Newcastle, Preston and Teesside, the company has an international reach through its relationships with law firms around the globe.