Sales, Advertising and Labelling: General Food Labelling

1 Introduction

The law concerning food labelling is now almost exclusively to be found in Regulation (EU) 1169/2011 on the provision of food information to consumers which came into effect on 13 December 2014. The Regulation is more often referred to as ‘FIC’ (food information to consumers) and is defined as such by law,¹ but occasionally the ‘FIR’ (food information regulation).

The stated aim of the FIC Regulation is to “pursue a high level of protection of consumers’ health and interests by providing a basis for final consumers to make informed choices and to make safe use of food, with particular regard to health, economic, environmental, social and ethical considerations.”²

In so doing, food information law must aim to achieve the free movement of legally produced and marketed food throughout the EU, taking into account the need to protect the legitimate interests of producers and promote the production of quality products.³

Open and transparent public consultation must, except in cases of urgency, precede the introduction of any new information requirements or the revision of existing ones.⁴

There must also be a transitional period, except where justified, following the entry into force of any new requirements during which foods bearing non-compliant labels placed on the market before the end of the transitional period may continue to be sold until exhausted.⁵

The FIC Regulation is implemented in England by The Food Information Regulations 2014⁶ and similar provision is made in regulations concerning Wales,⁷ Scotland⁸ and Northern Ireland.⁹ The 2014 Regulations repeal almost entirely The Food Labelling Regulations 1996¹⁰ preserving only the reserved uses of the word ‘wine’, the maximum permitted percentage of water in certain cheeses and reserved descriptions for cream.¹¹

The European Commission published Questions and Answers on the application of the Regulation (EU) N° 1169/2011 on the provision of food information to consumers¹² which, to date, remains the Commission’s only published guidance on the FIC Regulation. 

 

2 Definition and Format of Labelling

Food intended for supply to the final consumer or a restaurant, canteen, school, hospital or catering enterprise (including those operated from a vehicle or a fixed or mobile stall) in which food is prepared for consumption by the final consumer, must be accompanied by food information in accordance with the FIC Regulation¹³ and is subject to fair information practices¹⁴ which also apply to advertising and the presentation of food.

Notwithstanding all the attention which the FIC Regulation received prior to implementation the basic labelling requirements remain largely unchanged.

‘Label’ and ‘labelling’ are defined in Article 2 of the FIC Regulation:

(i) ‘label’ means any tag, brand, mark, pictorial or other descriptive matter, written, printed, stencilled, marked, embossed or impressed on, or attached to the packaging or container of food;

(j) ‘labelling’ means any words, particulars, trade marks, brand name, pictorial matter or symbol relating to a food and placed on any packaging, document, notice, label, ring or collar accompanying or referring to such food.

While the wording of these definitions is widely drawn, labelling “must be construed as words, particulars and other information relating to a foodstuff which are specifically intended to inform the consumer as to the characteristics of the product in question.”¹⁵

Mandatory food information must be marked in a conspicuous place so to be easily visible, clearly legible and, where appropriate, indelible. It must not in any way be hidden, obscured, detracted from or interrupted by any other written or pictorial matter or other material.¹⁶

The mandatory particulars are:

1. The name of the food.

2. The list of ingredients.

3. Any ingredient or processing aid in the list of 14 substances or products¹⁷ or derived from such a substance or product causing allergies or intolerances used in the manufacture or preparation of a food and still present in the finished product, even if in an altered form.

4. The quantity of certain ingredients or categories of ingredients.

5. The net quantity of the food.

6. The date of minimum durability or the ‘use by’ date.

7. Any special storage conditions and/or conditions of use.

8. The name or business name and address of the food business operator under whose name or business name the food is marketed or, if not established in the EU, the importer into the EU market.¹⁸

9. The country of origin or place of provenance where failure to indicate this might mislead the consumer as to the true country of origin or place of provenance of the food and for meat.¹⁹

10. Instructions for use where it would be difficult to make appropriate use of the food in the absence of such instructions.

11. In the case of beverages containing more than 1.2% by volume of alcohol, the actual alcoholic strength by volume.

12. A nutrition declaration.²⁰

There are additional particulars which must be included²¹ in relation to certain types or categories of food:

1. Foods packaged in certain gases.

2. Foods containing sweeteners.

3. Foods containing glycyrrhizinic acid or its ammonium salt or liquorice plant above a specified concentration.

4. Beverages with high caffeine content or foods with added caffeine.

5. Foods with added phytosterols, phytosterol esters, phytostanols or phytostanol esters.

6. Frozen meat, frozen meat preparations and frozen unprocessed fishery products must bear the date of freezing or the date of first freezing in cases where the product has been frozen more than once.²²

The mandatory particulars must be printed on the package or on the label in such a way as to ensure clear legibility, in characters using a font size with an x-height²³ equal to or greater than 1.2 mm.²⁴ The x-height is that numbered 6 in the figure below.

Where the largest surface of a container or packaging is less than 80 cm², the x-height must be equal to or greater than 0.9 mm.²⁵

The name of the food, net quantity and, where required, alcoholic strength by volume must appear in the same field of vision,²⁶ except in the case of glass bottles intended for reuse which are indelibly marked and bear no label, ring or collar. In the case of such glass bottles only the name of the food, presence of a substance causing allergies, net quantity, date of minimum durability and, when in force, nutrition declaration are mandatory.²⁷ The requirements do not apply to milk or milk products presented in a glass bottle where the glass bottle is intended for reuse.²⁸

Where the largest surface of a container or packaging is less than 10 cm² only the name of the food, presence of a substance causing allergies, net quantity and date of minimum durability are mandatory, although nutrition information must be provided at the request of the consumer.²⁹

Mandatory food information must appear in a language easily understood by the consumers of the Member State(s) where a food is marketed. A Member State may stipulate that the particulars for food marketed within their territory must be given in one or more official EU languages.³⁰

 

3 Name of the Food

The name of a food must be its legal name or, where there is none, the customary name must be used. If there is no customary name or it is not used, a descriptive name of the food must be provided.³¹

‘Legal name’ means the name of a food prescribed in relevant EU provisions or, in the absence of such provisions, provided for in domestic measures applicable where food is sold to the final consumer or to mass caterers.³² There are a wide range of names so specified which set out specific requirements for the labelling and composition of food including:

• Bottled water

• Bread and flour

• Cocoa and chocolate products

• Fats and oils

• Fish

• Fruit juices and nectars

• Honey

• Jams and preserves

• Meat and meat products

• Milk and milk products

• Soluble coffee

• Sugar

The Fish Labelling Regulations 2013,³³ for example, make provision for the publication of the list known as the Commercial Designation of Fish: United Kingdom³⁴ which is now maintained online and can be updated without the need for further secondary legislation. Defra have provided further guidance in relation to these foods: Food standards: labelling, durability and composition.

‘Customary name’ means a name which is accepted as the name of the food by consumers in the territory in which the food is sold without needing further explanation.³⁵

In the case of customary names, one which is customary in a particular area, may not be understood outside that area and so, if sold outside that area, may require additional information describing the food. It is a question of fact whether or not a name amounts to a customary name. ‘Manx Kipper’, ‘Morecambe Bay Shrimps’ and ‘Peasemeal’ may be considered customary names, and local examples could include ‘Cornish Saffron Cake’, ‘Goosnargh Cake’ and ‘Huntingdon Fidget Pie’.

‘Descriptive name’ means a name providing a description of the food which is sufficiently clear to enable consumers to know its true nature and distinguish it from other products with which it might be confused.³⁶ It should involve a clear and accurate description of the food using specific not generic terms and which avoids meaningless adjectives.

The use of a name in marketing a food in one Member State under which it is lawfully manufactured and marketed in the Member State of production is allowed. However, where the application of the FIC Regulation³⁷ would not enable consumers to know the true nature of the food and distinguish it from other foods with which it could be confused, the name of the food must be accompanied by other descriptive information which appears in proximity to the name of the food.³⁸

In exceptional cases, the name of the food in the Member State of production cannot be used in the Member State of marketing when the food is so different, in composition or manufacture, from food known under that name in the Member State of marketing that other descriptive information is not sufficient to ensure correct information for consumers.³⁹

Trade marks, brand or fancy names must not be used for the name of a food.⁴⁰ Food names registered on the EU protected food name register cannot be used unless the food meets the specification for the name.

Finally, specific provisions on the name of a food and particulars that must accompany it are set out⁴¹ and include:

1. The name of the food must include or be accompanied by particulars of the physical condition of the food or specific treatment which it has undergone (for example, powdered, refrozen, freeze-dried, quick-frozen, concentrated, smoked) where omission of this information could mislead the purchaser.

2. Where food was frozen before sale but sold defrosted, the name of the food must be accompanied by the designation ‘defrosted’, although this does not apply to ingredients present in the final product, food for which freezing is a technologically necessary step in the production process or food for which defrosting has no negative impact on safety or quality.

3. Food treated with ionising radiation must bear the indications either ‘irradiated’ or ‘treated with ionising radiation’.⁴²

4. Where a food possesses a component or ingredient which consumers would normally expect to be used or naturally present but which has been substituted, the label must bear a clear indication of the component or the ingredient that has been used in partial or whole substitution in close proximity to the name of the product and use a font size with an x-height at least 75% of that of the name of the product and no smaller than 1.2 mm.

5. Where meat products, meat preparations and fishery products contain added proteins, including hydrolysed proteins (including albumin, collagen, casein, milk protein, egg protein), of a different animal origin, the name of the food must indicate the presence of those proteins and of their origin.

6. Where meat products and meat preparations have the appearance of a cut, joint, slice, portion or carcase of meat, the name of the food must include an indication of the presence of added water if it makes up more than 5% of the weight of the finished product. The same applies to fishery products and prepared fishery products which have the appearance of a cut, joint, slice, portion, fillet or whole fishery product.

7. Meat products, meat preparations and fishery products which may give the impression they are made of a whole piece of meat or fish, but actually consist of different pieces combined together by other ingredients, including food additives and food enzymes or by other means, must bear the indication ‘formed meat’ and ‘formed fish’.

8. The designation ‘minced meat’ is subject to specific composition criteria checked on the basis of a daily average as set out in the table below:

The following expressions must appear on the labelling:

— ‘percentage of fat content under …’,

— ‘collagen/meat protein ratio under …’,

Member States may allow the marketing of minced meat on their national market which does not comply with the above criteria under a national mark. Regulation 4 of The Food Information Regulations 2014⁴³ gives effect to this derogation in England under the following national mark:

9. Where a sausage casing is not edible, this must be indicated.

 

4 List of Ingredients

An ‘ingredient’ means any substance or product, including flavourings, food additives and food enzymes, and any constituent of a compound ingredient, used in the manufacture or preparation of a food and present in the finished product, even if in an altered form. Residues are not considered ingredients.⁴⁴

The list of ingredients must be headed or preceded by a heading which consists of or includes the word ‘ingredients’. The must include all ingredients of the food, in descending order of weight, as recorded at the time of their use in the manufacture of the food, and designated by their specific name.⁴⁵

Ingredients present in the form of engineered nanomaterials⁴⁶ must be clearly indicated and the name of the ingredients must be followed by ‘nano’ in brackets.

There are a number of specific provisions concerning the indication and designation of ingredients.⁴⁷ In summary these concern:

• Added water and volatile products.

• Concentrated or dehydrated ingredients reconstituted at the time of manufacture or to be reconstituted with the addition of water.

• Fruit, vegetables and mushrooms used in a mixture likely to vary in which none predominate.

• Mixtures of herbs or spices where none predominate.

• Ingredients constituting less than 2% of the finished product.

• Refined oils and fats of vegetable origin.

Certain ingredients may be designated by the category⁴⁸ to which they belong as follows:

• ‘Oil’ accompanied by the appropriate designation for refined oils of animal origin.

• ‘Fat’ accompanied by the appropriate designation for refined fats of animal origin.

• ‘Flour’ followed by a list of cereals for mixtures of flour from two or more cereal species.

• ‘Starch’ for starches and starches modified by physical means or by enzymes.

• ‘Fish’ for all species of fish where it constitutes an ingredient of a food, provided that the name and presentation of the food does not refer to a specific species of fish.

• ‘Cheese’ for all types of cheese where it constitutes an ingredient of a food, provided that the name and presentation of the food does not refer to a specific type of cheese.

• ‘Spices’ or ‘mixed spices’ for all spices not exceeding 2 % by weight of the food.

• ‘Herbs’ or ‘mixed herbs’ for all herbs or parts of herbs not exceeding 2 % by weight of the food.

• ‘Gum base’ for all types of gum preparations used in the manufacture of gum base for chewing gum.

• ‘Crumbs’ or ‘rusks’ for all types of crumbed baked cereal products.

• ‘Sugar’ for all types of sucrose.

• ‘Dextrose’ for all types of anhydrous dextrose or dextrose monohydrate.

• ‘Glucose syrup’ for glucose syrup and anhydrous glucose syrup.

• ‘Milk proteins’ for all types of milk protein (caseins, caseinates and whey proteins) and mixtures.

• ‘Cocoa butter’ for press, expeller or refined cocoa butter.

• ‘Wine’ for all types of wine covered in Annex XIb to Regulation (EC) 1234/2007.

• ‘X meat’, where ‘X’ is the name of the species, for skeletal muscles of mammalian and bird species recognised as fit for human consumption where the fat and connective tissue content are within prescribed limits and where the meat constitutes an ingredient of another food. In English, this designation may be replaced by the generic name of the ingredient for the animal species concerned.

• ‘Mechanically separated meat’ and species name for all types of products covered by the definition of ‘mechanically separated meat’.

Food additives and food enzymes, not including those not required to be included in the list of ingredients (for which see below) must be designated⁴⁹ by the name of one of the categories below followed by their specific name or, if appropriate, E number.

Acid Acidity regulator Anti-caking agent Anti-foaming agent Antioxidant Bulking agent Colour Emulsifier Emulsifying salts Firming agent Flavour enhancer Flour treatment agent

Foaming agent Gelling agent Glazing agent Humectant Modified starch Preservative Propellent gas Raising agent Sequestrant Stabiliser Sweetener Thickener

If an ingredient belongs to more than one of the categories, the category appropriate to the principal function in the case of the food in question shall be indicated.

Flavourings must be designated either ‘flavouring(s)’ or by a more specific name or description where the flavouring contains certain defined flavourings,⁵⁰ ‘smoke flavouring(s)’ or ‘smoke flavouring(s) produced from food(s) or food category or source(s)’ where the flavouring component contains defined flavourings⁵¹ and imparts a smoky flavour.

The term ‘natural’ for the description of a flavouring may only be used if the flavouring component comprises only flavouring preparations and/or natural flavouring substances in which the flavouring component contains exclusively natural flavouring substances.

The term ‘natural’ may only be used in combination with a reference to a food, food category or a vegetable or animal flavouring source if the flavouring component has been obtained exclusively or by at least 95% by w/w from the source material. The description must read ‘natural “food(s) or food category or source(s)” flavouring’.

The term ‘natural “food(s) or food category or source(s)” flavouring with other natural flavourings’ may only be used if the flavouring component is partially derived from the source material referred to, the flavour of which can easily be recognised.

The term ‘natural flavouring’ may only be used if the flavouring component is derived from different source materials and where a reference to the source materials would not reflect their flavour or taste.⁵²

Quinine and/or caffeine used as a flavouring in the production or preparation of a food must be mentioned by name in the list of ingredients immediately after the term ‘flavouring(s)’.⁵³

Generally, a compound ingredient may be included in the list of ingredients under its own designation where this is established by law or custom, in terms of weight and followed by a list of ingredients.⁵⁴

There are a number of exceptions to the requirement⁵⁵ that food must bear a list of ingredients:

1. Fresh fruit and vegetables, including potatoes, which have not been peeled, cut or similarly treated.

2. Carbonated water, where the description indicates it has been carbonated.

3. Fermentation vinegars derived exclusively from a single basic product, provided no other ingredient has been added.

4. Cheese, butter, fermented milk and cream, to which no ingredient has been added other than lactic products, food enzymes and micro-organism cultures essential to manufacture, or in the case of cheese other than fresh cheese and processed cheese the salt needed for manufacture.

5. Foods consisting of a single ingredient, where the name of the food is identical to the ingredient name, or the name enables the nature of the ingredient to be clearly identified.

Finally, to complete the picture, there are ingredients which are not required to be included⁵⁶ in the list of ingredients:

1. The constituents of an ingredient temporarily separated during manufacturing and later reintroduced but not in excess of their original proportions.

2. Food additives and food enzymes whose presence is due solely to the fact they were contained in one or more ingredients, in accordance with the carry-over principle,⁵⁷ provided they serve no technological function in the finished product or which are used as processing aids.

3. Carriers and substances which are not food additives but are used in the same way and with the same purpose as carriers, and used in quantities strictly necessary.

4. Substances which are not food additives but are used in the same way and with the same purpose as processing aids and are still present in the finished product, even if in an altered form.

5. Water where used during the manufacturing process solely for the reconstitution of an ingredient used in concentrated or dehydrated form or in the case of a liquid medium not normally consumed.

 

5 Net Quantity

The net quantity of a food must be expressed, as appropriate, in litres, centilitres, millilitres, kilograms or grams using units of volume in the case of liquid products and of mass in the case of other products.⁵⁸ The Commission may establish for certain specified foods⁵⁹ an alternative manner for expressing net quantity.⁶⁰

The net quantity declaration is not mandatory in the case of foods:

1. Subject to considerable losses in their volume or mass and which are sold by number or weighed in the presence of the purchaser.

2. Where the net quantity is less than 5g or 5 ml with the exception of spices and herbs.

3. Normally sold by number, provided the number of items can clearly be seen and easily counted or, if not, is indicated on the labelling.

Where a solid food is presented in a liquid medium, the drained net weight of the food must be indicated and where glazed, the net weight is exclusive of the glaze. In this context ‘liquid medium’ means water, aqueous solutions of salts, brine, aqueous solutions of food acids, vinegar, aqueous solutions of sugars, aqueous solutions of other sweetening substances, fruit or vegetable juices in the case of fruit or vegetables, provided the liquid is merely an adjunct to the essential elements of the preparation and is not a decisive factor for the purchase.⁶¹

 

6 Storage and Instructions for Use

Where a food requires special storage conditions and/or conditions of use, those conditions must be indicated.⁶²

The instructions for use of a food must be indicated in such a way as to enable appropriate use to be made of the food.⁶³

 

7 Non-prepacked Foods

Where food is offered for sale to the final consumer or mass caterers without prepackaging, or is packed on the sales premises at the consumer’s request or prepacked for direct sale, the list of mandatory particulars⁶⁴ does not apply except in relation to any ingredient or processing aid in the list of 14 substances or products or derived from such a substance or product⁶⁵ causing allergies or intolerances used in the manufacture or preparation of a food and still present in the finished product, even if in an altered form.

A Member State may adopt national measures requiring the provision of some or all of those particulars or elements of those particulars and specifying the means by which they are to be made available.⁶⁶

 

8 Distance Selling

In the case of prepacked foods offered for sale by means of distance communication, including online over the internet, the mandatory food information, except the date of minimum durability or the ‘use by’ date, must be available before the purchase is concluded. It must appear on the material supporting the distance selling or be provided through other appropriate means clearly identified by the food business operator.

Where other means are used, the mandatory food information must be provided without the food business operator charging consumers supplementary costs.

All mandatory particulars must be available at the moment of delivery.⁶⁷

In the case of non-prepacked foods the particulars required are those for non-prepacked foods⁶⁸ provided in like manner to that for prepacked foods.

The requirement to provide mandatory particulars before a purchase is concluded does not apply to food offered for sale by means of an automatic vending machine or automated commercial premises.⁶⁹