Despite the fact that the time for FIC compliance will soon be upon us, a number of questions surrounding these changes remain unanswered. Perhaps even more perturbing given the slow speed at which clarification has been provided by Brussels and Whitehall on current provisions, there are a lot more rules still to come. Dominic Watkins, partner and head of the food group and Anne Marie Taylor, Solicitor answer some Frequently Asked Questions to help navigate this complex area.
1.Do allergens need to be emphasised for single food ingredients such as milk?
It is not necessary to emphasise allergens in the ingredients list where the name of the food clearly refers to the allergen concerned, such as in the case of milk. Where the name of the product does not reflect the name of the allergen and there is no list of ingredients, the allergen should be declared by using the word ‘contains’ followed by the name of the allergen.
2. Allergen boxes won't be allowed under FIC, but what about ‘may contains’ declarations where there is a risk of contamination?
There is no legislative control over labelling of low levels of allergens that may be present due to cross-contamination, so such advisory declarations will not be prohibited under FIC, however, there is FSA voluntary best practice guidance on cross-contamination controls. The FSA’s guidance aims to prevent valid warnings being undermined by excessive use of “may contain” type warnings and avoid people's choice being unnecessarily restricted. The Guidance recommends that “advisory labelling should only be used when, following a thorough risk assessment, there is a demonstrable and significant risk of allergen cross-contamination”.
3. Allergen declarations are now required for non-prepacked foods, so this creates obligations for caterers. As FIC also covers transport undertakings, will this apply to airline or train caterers and what are they required to do?
Yes, FIC will apply to airline and train caterers when the departure takes place from a member state. They will need to provide information to consumers about any allergens contained in the foods they prepare and supply, although this does not stretch as far as allergens that may be present as a result of cross-contamination.
DEFRA Guidance provides examples as to how allergen information can be supplied, including on the menu, chalk boards, tickets or even verbally by an appropriate member of staff where it is made clear, for example, on a notice, menu, ticket or label, that allergen information can be obtained by asking a member of staff. Whatever means is used to provide the information, it must be clear and conspicuous, easily visible, and legible. Caterers must not refuse to provide allergen information and it is not enough for a caterer to say that they do not know whether a food contains an allergen or say that all their foods 'may contain allergens'. Allergen information must be specific to the food, complete and accurate, whether provided on a menu or through verbal communication.
This new requirement may cause particular problems for airlines who serve a varied menu to their business and first class passengers, which can often change at the last minute due to the unpredictability of air travel - weather, mechanical issues and passengers can all lead to delays and diversions. As allergen labelling for non-prepacked foods has been left to member states to regulate, it remains to be seen how differences in approach to allergen declarations between member states will affect this sector.
4. What information must appear front of pack?
The only information that FIC suggests should appear front of pack is the voluntary repetition of nutrition information (energy value or energy value, fat, saturates, sugars and salt), which is commonly referred to in the UK as ‘front of pack nutrition labelling’.
This voluntary declaration must be placed in the ‘principal field of vision’, which means ‘the field of vision of a package which is most likely to be seen at first glance by the consumer at the time of purchase and that enables the consumer to immediately identify a product in terms of its character or nature and, if applicable, its brand name’. This is most likely to be the front of pack (as this is where branding is most likely to appear for commercial reasons), but FIC does allow food business operators to choose the principal field of vision if a package has more than one.
‘Field of vision’ means ‘all the surfaces of a package that can be read from a single viewing point’. The product name, net quantity and alcoholic strength (where relevant) must appear in the same ‘field of vision’, but contrary to the view of some member states, in the UK this does not have to be on front of pack.
5. If we don’t already have a nutrition declaration, do we need to add one by 13 December 2014?
No, the mandatory nutrition declaration for pre-packed foods only comes into force from 16 December 2016. If, however:
- a voluntary nutrition declaration is provided on pack prior to this date;
- a nutrition or health claim is made; and/or
- vitamins/minerals are added to the product;
a FIC compliant nutrition declaration must be provided by 13 December 2014.
6. When can we use FIC compliant labels?
You can change your labels now. Until 12 December 2014, you can choose whether you comply with the Food Labelling Regulations 1996 or FIC, as long as until then, any FIC compliant labels do not conflict with existing labelling requirements. The most likely conflict will be the change to field of vision requirements, whereby until 12 December, the durability date will still need to be in the same field of vision as the product name and net quantity.
We are seeing more and more FIC compliant labels on the shelf, however, with clarity still required on many provisions, it is uncertain whether these early birds will be penalised by having to repeat the expensive relabelling process.
It will still be possible to sell off any stock that is labelled in compliance with the Food Labelling Regulations 1996 after the December deadline until it is exhausted, so while preparation of labels is essential now, given the extent of the changes required under FIC, the timing of the print run is even more important. This is particularly so as the pressure on printer capacity and resources are expected to be at unprecedented levels in the run up to December.
The implications of this may be felt more by small to medium size manufacturers, who may experience more challenges when it comes to the practical action of getting the labels printed. While the requirements of FIC are exactly the same for every size of business, smaller businesses do not have the same access to industry groups as larger businesses, so may have been late to join the party, putting them to the back of the queue.
7. Will the existing rules governing misleading descriptions remain after FIC, for example, the requirements for use of ‘Flavour’ or ‘Flavoured’ or the requirement that depictions of ingredients should only be used on pack if the flavour of the food is ‘derived wholly or mainly’ from that depicted ingredient?
Currently in the UK, there are specific rules that apply in relation to misleading descriptions. These UK rules will be repealed when FIC comes into force. However, it is an overarching principle under EU law that food labelling does not mislead the consumer. FIC also contains provisions prohibiting misleading information. For example, information shall not mislead 'by suggesting, by means of the appearance, the description or pictorial representations, the presence of a particular food or an ingredient, while in reality a component naturally present or an ingredient normally used in that food has been substituted with a different component or a different ingredient'.So even under FIC, there is a risk that a product could be challenged as misleading, say on the basis of the depiction of an ingredient, where there is none in the product.
8. What future changes do we need to prepare for under FIC?
The EU still has to publish a number of reports and sets of implementing rules. In particular, the European Parliament believes that there is a need to explore the possibility of extending mandatory origin labels to more foods, so it has instructed the Commission to prepare reports looking into the viability of origin labelling for seven further categories of food by 13 December 2014, (although we expect some may be delayed):
- meat, other than beef, swine, sheep, goat and poultry;
- milk used as an ingredient in dairy products;
- meat used as an ingredient (this report was issued on 17 December 2013);
- unprocessed foods;
- single-ingredient products;
- ingredients that represent more than 50 per cent of a food.
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.