29 June 2018
Food Labelling Q&As Published with a View to Assisting Business Operators of Foodstuffs
On 8 June 2018, a European Commission guidance on the EU law related to food labelling was published in the Official Journal. The name of the publication is the “Commission notice on questions and answers on the application of Regulation 1169/2011 of the European Parliament and of the Council on the provision of food information to consumers”.
Hong Kong’s foodstuff sellers may recall that Regulation 1169/2011 on the provision of food information to consumers has been applicable throughout the European Union since 13 December 2014, with the exception of the provisions concerning the nutrition declaration which are applicable since 13 December 2016. The Regulation had been published on 22 November 2011 in the Official Journal, allowing a more than two years’ grace period, for food suppliers, including importers, to adapt to the new provisions. Regulation 1169/2011 modified the hitherto-existing food labelling regime so as to allow consumers to make informed choices and to ensure the safety of food, while at the same time ensuring a smoother functioning of the internal market by precluding Member States’ own national food labelling schemes which might have been in conflict.
The Regulation is said to represent the biggest overhaul of food labelling rules in a generation (i.e. since 1990). It currently applies to food business operators at all stages of the food chain, where their activities concern the provision of food information to consumers. Thus, the obligations apply in respect of all foods (including beverages) that are intended for the final consumer. Specific requirements include improved legibility of information (minimum font size for mandatory information); clearer and harmonised presentation of allergens for pre-packed foods; requirement of certain nutrition information for a majority of pre-packed processed foods; and a listing of engineered nanomaterials, if any, in the ingredients.
A key provision, entitled “Fair information practices”, notes that food information shall not be misleading, particularly as to the characteristics of the food and, in particular, as to its nature, identity, properties, composition, quantity, durability, country of origin or place of provenance, method of manufacture or production. It must also not attribute, to the food, effects or properties which it does not possess, nor suggest that the food possesses special characteristics when, in fact, all similar foods possess such characteristics.
The Q&As published on 8 June 2018 provide examples of a situation where the average consumer would expect that a particular food is normally produced with a certain ingredient, but such ingredient has been substituted with a different component or a different ingredient. Examples include a pizza for which the presence of cheese is expected given a picture on the label while cheese has been substituted with another product; or food in which a component that is naturally present has been substituted with a different component or a different ingredient like cheese where the fat of milk origin has been replaced by fat of vegetable origin. In such cases, the new guidance states that the name of the product must be followed in close proximity by the name of the substitution ingredient(s), printed on the package or on the label in such a way as to ensure clear legibility and using a font size which has an x-height of at least 75% of the x-height of the name of the product and which is not smaller than 1.2 mm.
Next, the Regulation requires that in the case of prepacked food, mandatory food information must appear either on the package or on the label attached thereto. As for what kind of labels may be used for the purpose of a label attached thereto, the Q&As state that labels must not be easily removable so as to jeopardise the availability or the accessibility of the mandatory food information to the consumer. In the case of peel-off labels attached on the package, a case-by-case assessment must be carried out to assess whether the general requirements on the availability, accessibility and placement of the mandatory information are fulfilled.
As for the list of ingredients, it is stated that in the case of engineered nanomaterials, they must all be clearly indicated in the list of ingredients. On the other hand, the Regulation lays down exemptions for food additives and food enzymes and carriers and substances from being included in the list of ingredients. It is clarified that the same exemptions also apply when these are in the form of engineered nanomaterials.
As far as the ‘instructions for use’ are concerned, a question that is raised is whether a food business operator may use the symbol of a pan or an oven without the words ‘pan’ or ‘oven’. The answer given is that this is not possible. Unless expressly allowed in the future by an EU act, mandatory particulars such as the instructions for use must be indicated with words and numbers. The use of pictograms or symbols is only an additional means to express such particulars.
As regards the mandatory nutrition declaration and what exactly has to be declared, it is stated that such information must include all the following particulars: energy value and the amounts of fat, saturates, carbohydrate, sugars, protein and salt. The energy value must be given both in kJ (kilojoules) and in kcal (kilocalories). The value in kilojoules must be given first, followed by the value in kilocalories. The abbreviation kJ/kcal can be used. If space permits, the declaration must be presented in the form of a table, with numbers aligned. A linear format may be used if space does not allow for the provision of the information in a tabular format. There is also an order of presentation of the information which must be followed, as shown on page 6 of the Q&As.
To conclude, the guidance sets out several questions and answers which clarify important aspects of EU Regulation 1169/2011. Hong Kong’s foodstuffs exporters should also keep in mind that the food business operator responsible for the food information shall be the operator under whose name or business name the food is marketed, or, if that operator is not established in the EU, then the responsible party will be the importer placing the foodstuffs on the EU market.