Law firm says act now to avoid any 'Trojan horses' in EC food labelling proposal

Whilst much of the text merely consolidates existing provisions, there are a number of significant proposed new rules. At this stage the Commission has published a preliminary draft text. This is only the first stage in what will no doubt be a long debate about the future of European food labelling requirements. Those attending the Eversheds' workshop were urged to flag any concerns about the legislation to the FSA during the consultation period which closes on the 2 May 2008. Furthermore interested UK parties should not just be lobbying the FSA, but also seek to lobby the appropriate bodies across Europe.

Some of the key issues addressed at the workshop are laid out below.

Single 'Regulation'

The first significant change is that a single 'Regulation' will replace a set of 'Directives'. This should reduce the amount of variation from one member state to another which results from the fact that each member state adopts its own laws to implement a Directive.

Owen Warnock, partner at international law firm Eversheds, comments "Once the new law is finalised, it will come into force on a single date across the whole of the EU. Therefore it should be easier for food businesses to understand what rules apply to them and differences from one country to another will be reduced - although they will not unfortunately be eliminated."

Front-of-pack nutrition labelling

The most controversial proposal is the introduction of front-of-pack labelling of key nutrients. The proposal adopts the 'guideline daily amounts' approach rather than traffic lights approach favoured by the UK's Food Standards Agency. Fat, saturated fat, carbohydrates, sugar, salt and energy content would need to be given per 100g or 100ml and also by reference to guideline daily amounts (GDAs). In addition there would be an option to provide per portion information. The rules would also permit quantities to be given for a long list of further nutrients including, for the first time, trans fats. The proposal to use GDAs will be popular with most of the food industry, however the European Consumers' Organisation, BEUC, is lobbying hard for traffic lights.

"In a startling proposal, the draft legislation would give each member state the option to devise or approve its own alternative front-of-pack nutrition labelling schemes. Whilst manufacturers or retailers could always use the EU's main nutrition labelling system, these other schemes might offer food businesses an alternative way of discharging the obligation to provide front-of-pack labelling. Exactly how the standard EU scheme and a national scheme would interact is currently far from clear - it could lead to some very complicated labels. The food industry has expressed deep concern because of the potential anti-competitive effect of letting member state give approval for voluntary alternatives: the potential indirect barriers to trade are all too obvious in a case where a particular alternative scheme finds favour in a particular country or with a certain major retailer." The end of unwrapped products?

Food that is not pre-packed or that is sold in restaurants and catering establishments, would also need to be accompanied by a declaration of any allergenic ingredient - thus plugging a gap in the current rules on allergens which only apply to the labelling of pre-packed food. Concerns at the workshop centred around fears that the legislation may not be understood by smaller suppliers.

Minimum print size

Under the proposal, for the first time a minimum print size would be specified for food labels: 3mm in height. A "significant contrast" between the print and the background would also be compulsory.

However, concerns raised at the workshop among the food industry focused on the ambiguity of the proposal: how significant must contrast be. Also, 3mm is a large print - the pressure on space on labels will be a real problem and could lead to the "ungreen" unintended consequence of increased packaging.

Origin or provenance of a food

A further significant proposal involves much more precision in the rules forbidding misleading indications of the origin or provenance of a food - including the situation where a principal ingredient of a food comes from a different country than the country of manufacture. Not all the details of this proposal have yet been finalised, but it will be an important one for many food businesses.

For some businesses it will help to protect them from unfair competition from products which are less clearly 'from' a particular place than one might expect, for others these rules may have an impact on the location chosen for factories and the suppliers use to provide key ingredients. Concerns raised at the workshop focused around the cost implications of having to change labels in accordance with a change of suppliers.