Law and order
In a sector built around fast moving consumer goods, it is not surprising that food and drink law itself can be equally fast moving. Food business operators (FBOs) must keep pace both with evolving consumer trends and EU and national legislation.
Frequent changes to the legislative landscape range from the debate surrounding sugar to allergen labelling, a more selective and discerning consumer base and changes in shared common wisdom around food.
FBOs are increasingly under pressure to ensure legal regulatory compliance, but also to defray the consequent costs, for example, reflected in updating labels and packaging away from the end price. The UK’s decision on June 23 to exit the EU only adds to this complexity, with what is likely to be a prolonged period of uncertainty around which rules will stay the same and which will diverge.
Sugar and labelling
Since the government’s surprise announcement of a sugar tax in March 2016, the debate around acceptable amounts of sugar in food and drink products has displaced concerns around salt and fat and dominated the argument. Although concerns relating to the perceived adverse effects of sugar on health are nothing new, the tax has amplified the concerns, resulting in a variety of proposals to undermine or compliment the tax through reformulation, improving consumer awareness or outright challenge.
Some key proposals relate to how the amount of sugar in food and drink products is communicated. The announcement of the sugar tax was preceded by the tabling of the Sugar in Food and Drinks (Targets, Labelling and Advertising) Bill in October 2015. The bill included a proposal to display sugar content on food and drink labelling in terms of the number of teaspoons of sugar, to help consumers better understand the real amount of sugar in, for example, fizzy drinks. The fact that the bill did not pass before the end of the 2015/16 parliamentary session, and that it now remains uncertain whether it will be reintroduced or whether it has been usurped by the proposed sugar tax, illustrates the speed of change.
While the bill was still on the books, Public Health England rolled out a sugar app, which gave a visual reading of sugar content in terms of sugar cubes. In contrast, the Royal Society for Public Health (perhaps accepting that there is inevitably consumer demand) has proposed that food packaging should display symbols of ‘activity equivalent’ information: three stick figures shown running, cycling and swimming, with the number of minutes it would take the average person to burn off the product’s calories by carrying out each activity (pictured). No decisions on competing imagery have been made, but any new requirements will increase the burden on FBO’s to fit such imagery onto already crowded packaging.
Is sugar definitely the problem?
The alarms around sugar are illustrated at EU level by the Dextro Energy case (Energy & Co KG v Commission – Case T-100/15). The European Court of Justice supported the scientific evidence for health claims, such as ‘glucose supports normal physical activity’, made in relation to glucose tablets. However, it decided that because any approved claim would inevitably condone the consumption of sugar, this was contrary to ‘generally accepted principles of nutrition and health’, and therefore such claims could not be made despite the European Food Safety Authority (EFSA) confirming the claims were scientifically accurate.
The rationale for the refusal was that the claims would, in the commission’s view, convey a conflicting and confusing message to consumers. Interestingly, the decision is currently under appeal.
Nevertheless, this apparent readiness to qualify scientific claims may be a worrying precedent seen within the context of the UK High Court’s recent rejection of a last minute judicial review action by some of the world’s biggest tobacco manufacturers, arising from the introduction of the Standardised Packaging of Tobacco Products Regulations 2015. The regulations require all cigarette packets to be a standard colour, with brand names shown in a standard font and size and no other branding on the packet. Some see this as reflecting an increasingly interventionist approach to health protection and the regulation of what are legal products.
The current political focus on obesity, especially in children, is understandable, but FBOs may be cautious about the general principle that regulations are used to curtail what others consider to be socially undesirable products.
Allergen labelling
Although being introduced in the shadow of the sugar debate, allergen labelling is also creating printing and labelling challenges. Since the enactment of Regulation (EU) No 1169/2011 on the provision of food information to consumers (FIC), allergen ingredients must be easily identifiable in the ingredients list in bold, italics, highlighted or underlined.
Gluten, in particular, has seen increased legislative focus with gluten labelling now mandatory under Regulation (EC) No 41/2009. The regulation also sets levels of gluten for foods claiming to be either ‘gluten-free’ or ‘very low gluten’. FBOs should also be mindful of Regulation (EU) 828/2014, which came into force on 20 July 2016, which lays down specific requirements for the provision of information to consumers on the absence, or reduced levels of gluten in food, and will require the use of on pack statements such as ‘suitable for coeliacs’ or ‘specifically formulated for coeliacs’.
Food for special purposes legislation
Also in force as of 20 July 2016 is Regulation (EU) No 609/2013 on foods for specific groups (FSG regulation), which replaces the PARNUTS Directive 2009/39/EC and seeks to ensure a consistent approach to foods for specific groups across Europe.
One result of the changes implemented by the new directive is that labels for FSG products may no longer be able to indicate special characteristics of the product, such as ‘contains fibre’ or ‘low sodium’. Similar to the Dextro case above, such claims may be approved by EFSA but still considered ‘non beneficial for the general population from the healthy policy point of view’.
The FSG regulation is intended to focus on foods for certain vulnerable groups of consumers, but the EC report published on 15 June 2016 has concluded that sports foods, currently covered by the PARNUTS Directive, will not be categorised as FSG because sports people are not in a vulnerable group. Sports foods will be governed by general food law as of 20 July 2016. This will have a significant impact on sports food labelling, advertising and health claims that can be used with respect to such foods.
For example, consumer information on sports food, such as allergen labelling, information on designation and instructions for use, will have to be provided in accordance with FIC. In addition, information falling under the definition of nutrition and health claims provided for such products on a voluntary basis will have to comply with Regulation (EC) No 1924/2006. Consequently, only nutrition and health claims authorised pursuant to that regulation will be allowed for use on sports food.
Critically, the actual categorisation of foodstuff may change and be considered either as a food supplement, where it falls under the definition of Directive 2002/46/EC, or in accordance with Regulation (EC) No 1925/2006, as a fortified food. To be classified as a fortified food Regulation (EC) No 1925/2006 requires that vitamins and minerals added to the food should be present in at least a ‘significant amount’. However, vitamins and minerals are sometimes added to sports foods at lower level than the ‘significant amount’, to ensure that the composition of the product best addresses the requirements of the body when carrying out a particular sports activity. The regulation does, however, provide for the possibility of granting derogation to the requirement of the ‘significant amount’ in justified cases for certain categories of food, which could provide a solution to sports products currently classified as a fortified food.
Evolving landscape
FBOs must, when designing and printing labels and packaging, conform with multiple regulations and at the same time adapt to consumer trends.
To remain competitive it is imperative that manufacturers have clear processes and guidelines in place to stay abreast of the evolving legislative landscape and ensure compliance.
Authors:
Fiona Carter, consultant, CMS London, and Mark Webster, trainee solicitor, CMS London.
