December 2014 sees the official start of the new regime for food labelling. It comes as the latest in a long line of very significant changes in food regulation.
The EU Regulation on the provision of food information to consumers (FIC) which replaces the existing EU Directive and domestic legislation such as our Food Labelling Regulations, is the start of a brave new world.
There are many changes and challenges with compliance with FIC and many tricky obligations hidden in plain sight in the text of the regulation, Hilary Ross, head of the retail, food and hospitality sector group and Dominic Watkins, partner and head of the food group discuss some of the key changes:
- Introduction of mandatory labelling obligations;
- A minimum height size for mandatohowry particulars – creating less room for other claims and compliance with other standards, e.g. organic labelling requirements, on those smaller products that are too large for the small packaging exemption;
- A formatting change on allergen labels – prohibiting the use of allergen boxes currently favoured by many manufacturers;
- Mandatory nutrition declarations – including declaring sodium as salt;
- Allergen requirements for non-pre packed foods – creating additional obligations for caterers and their staff;
- Allergen requirements for catering services provided by transport undertakings, such as airline or train caterers – this has been left to member states to regulate so it is uncertain how differences in approach to allergen declarations between member states will affect this sector;
- Voluntary front-of-pack labelling will have to follow a set format – a common practice in the UK but fiercely resisted by other member states raising questions about free movement;
- Requirement to list kilojoules as well as kcals;
- Country of origin labelling for meat and products where the origin of the food indicated is not the same as that of its primary ingredient (in which case, the provenance of the primary ingredient must also be declared);
- Addition of ‘refrozen’ and ‘defrosted’ to physical conditions or specific treatments that must accompany the product name;
- Frozen product labels must contain two dates: the durability date and the ‘frozen on’ date – details have not yet been confirmed by DEFRA;
- Individual portions of ice-cream and beverages in containers of more than 5 litres for supply to mass caterers will no longer be exempt from having a minimum date of durability;
- The durability date will no longer need to be in the same field of vision as the product name and net weight;
- Proteins added to a meat product that are of a different animal origin must be declared;
- Added water declarations for meat products with more than 5% water;
- Meat and fish products that are made with different pieces and combined with other ingredients, but which give the impression of whole meat or fish must be labelled as ‘formed meat’ or ‘formed fish’;
- Mandatory information must appear on websites for distance sales;
- Rules relating to mincemeat labelling.
How will FIC be enforced in the UK?
While FIC has direct effect in all member states, the offences and penalties for breaching FIC will be contained in national legislation. In the UK, this will take the form of the Food Information Regulations 2013 (‘FIR’). Draft FIRs have been published, but the final version, which was expected last month, is being held up in Whitehall.
It is entirely possible that changes will be made before FIR finally comes into force, but as it is now drafted, it completely change the current enforcement regime under the Food Labelling Regulations 1996.
For example, under the Food Labelling Regulations it is an offence to sell food after its use by date, however, FIR does not contain an equivalent provision. Instead, it is envisaged that this will be an offence that is prosecuted under existing food safety legislation on the basis that its use by date should only be applied to food that becomes microbiologically unsafe after its expiry.
The only offences currently in the draft FIR are:
- failure to comply with the allergen requirements under FIC; and
- failure to comply with an Improvement Notice issued under FIR - FIR provides competent authorities with the power to use improvement notices to deal with food labelling breaches that are not safety related for the first time.
We anticipate that any other offences that were formerly found in the Food Labelling Regulations will be dealt with under other legislation – for example, unless the position changes the much debated offence of selling a food after its use by date would need to be prosecuted as an unsafe food prosecution.
A person found guilty of an offence under FIR will, according to the draft regulations, be liable to a fine not exceeding level 5 on the standard scale, which is currently £5,000.This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.