The Food Information to Consumers Regulation

By Neil Griffiths Bsc (Hons).,MChemA.,CChem.,CSci.,FRSC.,FIFST.,FSOFHT
Director for Neil Griffiths Advisory Ltd

We have now all had just over 14 years examining and implementing the detail of the Food Information to Consumers Regulation 1169/2011 (FIC). It is however, in my view, sometimes important to step back from the detail and consider why this Regulation was introduced.

In order to achieve a high level of health protection for consumers and to guarantee their right to information, European labelling regulations are required to ensure that consumers are appropriately informed as regards to the food they consume. Consumers’ choices can be influenced by health, economics, environmental, social and ethical considerations. While the original objectives and the core components of the previous labelling legislation were still valid, it was necessary to streamline it in order to ensure easier compliance and greater clarity for stakeholders and to modernise it in order to take account of new developments in the field of food information. In other words, those little words that now bring fear to the food industry when they hear or see them. Consolidation, Simplification and Updating!!! A sure sign that this will bring with it substantive change and cost. This proved to be the case.

Whilst it is important to realise that this Regulation removed from the statute book regulations covering the detailed requirements of food labelling and nutrition labelling (i.e. Directive 2000/13/EC and Directive 90/496/EEC) those that establish the overarching requirements of food labelling remained untouched. Regulation (EC) No 178/2002 on the general principles of food law provide a basis for consumers to make informed choices in relation to food they consume, and to prevent any practices that may mislead the consumer. In the UK this is reinforced by our own Food Safety Act 1990 which makes it an offence to falsely describe a food or mislead as to its nature, substance or quality.

For those who bury themselves in the detail of food labelling it is sometimes good practice to step back and put yourself in the position of the man on the Clapham omnibus (a hypothetical reasonable person, used by the courts in English law where it is necessary to decide whether a party has acted in the way that a reasonable person should). This man could have made a fortune as a consultant if he had existed. In other words, would a normal consumer be misled by the label? You will be pleased to hear the “Clapham omnibus” expression has inspired the Australian New South Wales and Victorian equivalents, “the man on the Bondi tram”.

This FIC made changes to all pre-packed food labels and introduced requirements for non-prepacked foods. It represented the most major changes in general Food Labelling and Nutrition Labelling for over 20 years. It was published in the Official Journal on the 22 November 2011 and came into force 20 days after publication on the 13 December 2011.

I have attempted to summarise 46 Pages of the FIC below and I have only concentrated on the main changes from previous labelling law. Please consult the main regulation for more detail and bedtime reading:

• It applies to all foods intended for the final consumer, including foods delivered by mass caterers, and foods intended for supply to mass caterers.
• Definitions are given for: food information; food information law; mandatory food information; mass caterer; prepacked food; ingredient; place of provenance; compound ingredient; label; labelling; field of vision; principal field of vision; legibility; legal name; customary name; descriptive name; primary ingredient; date of minimum durability of a food; nutrient and engineered nanomaterial.
• The food business operator responsible for the food information is the operator under whose name or business name the food is marketed or, if that operator is not established in the Union, the importer into the Union market.
• This regulation shifted some familiar aspects of the due diligence defence to more specific requirements for example, accurate and signed food specifications, pack copy and label approval systems, and a review process to maintain accuracy and validity.
• Food business operators which do not affect food information are required not to supply food which they know or presume, on the basis of the information in their possession as professionals, to be non-compliant with the applicable food information law and requirements of relevant national provisions.
• The mandatory particulars listed are required to be printed on the package or on the label in such a way as to ensure clear legibility, in characters using a font size where the x-height is equal to or greater than 1.2 mm. In case of packaging or containers the largest surface of which has an area of less than 80 cm2, the minimum x-height of the font size referred to in paragraph 2 shall be equal to or greater than 0.9 mm.
• Date of first freezing for meat and fish is required.
• Country of Origin labelling is extended
• Allergens required to be highlighted in ingredients lists. Contains…. in Non-Prepacked foods. Voluntary allergen boxes and allergen statements are not allowed.
• Name of Food to include Processes (including defrosted), Formed (whole muscle), Added water greater than 5% (subject to exemption), Minced meat with labelling requirement for fat and collagen in meat protein (compositional requirements unless national mark) and requirements on imitation foods.
• Voluntary food information is required not to be displayed to the detriment of the space available for mandatory food information.
• Mandatory nutrition labelling for prepacked foods. Voluntary front of pack nutrition labelling. Voluntary nutrition labelling for non prepacked foods.
• Information required on energy, fat, saturates carbohydrates, sugars, protein and salt.
• Re-ordering to emphasise the nutrients important to public health. Sodium no longer permitted, although statement can be added explaining salt is due to naturally occurring sodium.
• Voluntary FOP information permitted on either:
– energy only, or
– energy plus fat, saturates, sugars & salt
• The implementation of the FIC in the UK was via the Food Information Regulation 2014 (1855). This enables enforcement authorities to enforce the FIC and also revoked national regulations on compositional standards for cream and cheeses. The regulations took up certain derogations and national flexibilities permitted by the FIC namely:
• Derogation from the need to give mandatory information for milk and milk products in glass bottles intended for reuse. Taking up this derogation maintained the current exemption.
• Derogation from minced meat composition standards on fat and collagen to meat protein ratios in the FIC. Taking up this derogation allowed businesses to continue to supply the UK market with traditional minced meat provided it is sold under a national mark.
• Retained the requirement for the name of the food to be given for foods sold non-prepacked.
• Retained the requirement for a quantitative indication of the meat content for meat products sold non-prepacked.
• Introduced the specific means by which allergen information provided on a mandatory basis for non-prepacked and prepacked for direct sale food has to be given (recently updated for prepacked for direct sale).
• Updated other food labelling and standards legislation to reflect the FIC Regulation and the introduction of the Food Information Regulations 2014.
• Separate but similar regulations are made for Wales, Northern Ireland and Scotland.

Under this national regulation, a change to the existing enforcement regime was taken forward with a move away from the across-the-board use of frontline criminal offences to a more proportionate and targeted regime using improvement notices. A backstop criminal offence is now in place where there is failure to comply with an improvement notice, with an offender being liable, on summary conviction, to a fine not exceeding level 5. Criminal offences continued for the contravention of certain provisions, namely mislabelling of foods containing allergens because a failure to comply with the allergen provisions may result in a risk to consumer health and safety. Food labelling continues to evolve both nationally and at the EU level. Recent changes to Origin Labelling concerning Principal Ingredients and Natasha’s Law on allergen labelling for Non-prepacked products provides examples of these. Life therefore continues to be interesting for those who have to implement and enforce Labelling Law. Brexit will of cause also present us with change. Continued gameful employment for labelling experts, I think!