EU – Upcoming exemptions for traditional generic descriptors (which could imply an effect on health) from nutrition and health claims Regulation

The objective of the draft Commission Regulation EU providing derogations from Article 1(3) of Regulation (EC) No 1924/2006 of the European Parliament and of the Council on nutrition and health claims made on food for the use of certain generic descriptors – which originally should have been adopted in the third quarter of 2018 – is to provide for a derogation from the provisions of Regulation (EC) No 1924/2006 on nutrition and health claims for certain generic descriptors traditionally used to designate specific class of foods, which could imply an effect on health but which have traditionally not been used to indicate a health effect and which are not understood by consumers in such manner.

In particular, and for generic descriptors listed in the Annex to the Regulation itself, the Regulation would provide for an exemption from the application of Article 1(3) of Regulation (EC) No 1924/2006 in accordance to which “A trade mark, brand name or fancy name appearing in the labelling, presentation or advertising of a food which may be construed as a nutrition or health claim may be used without undergoing the authorisation procedures provided for in this Regulation, provided that it is accompanied by a related nutrition or health claim in that labelling, presentation or advertising which complies with the provisions of this Regulation.”. These specific generic descriptors would be then exempted from the duty of being accompanied – for their legality – by a related nutrition or health claim compliant with Regulation (EC) No 1924/2006.

In particular and to give an example, as regards specifically Italy and rusk-type bakery products category, the generic descriptor “Biscotto salute” (in EN “Healthy Biscuit”) would be then exempted from the application of the above Article 1(3) of Regulation (EC) No 1924/2006. What said follows the application – submitted by Monviso S.P.A. pursuant to Article 1(4) of Regulation (EC) No 1924/2006 for the term “biscotto salute” to be used as generic descriptor in Italy and in Malta – provided on April 23rd 2015 by the Italian competent authority to the Commission.

As regard, instead, non-alcoholic carbonated beverage containing the bittering agent quinine in the form of the flavourings FL 14.011, FL 14.152 or 14.155 as referred to in the Union list of flavourings as laid down in Annex I to Regulation (EC) No 1334/2008, the wording “tonica” (used as part of the descriptive name of the beverage) will be exempted from the application of Article 1(3) of Regulation (EC) No 1924/2006. As a matter of fact on April 2nd 2015, the UK competent authority provided the Commission with an application from the British Soft Drinks Association for the term ‘tonic’ (in English) used as part of the descriptive name of a beverage in the form of ‘tonic water’, ‘Indian tonic water’ or ‘quinine tonic water’ and also substituting the word ‘tonic’ (in English) with ‘tonique’ (in French), ‘tónico’ or ‘tonica’ (in Italian, Spanish, and Portuguese), ‘tονωτικό’ or ‘tonotikó’ (in Greek), ‘tonik’ (in Croatian, Czech, Hungarian, Polish, Slovak and Slovenian), ‘тоник’ (in Bulgarian), to be used as generic descriptor in all Member States except in Romania.

The same for hard and soft sweets based on sugars as well as sugar-free and calorie-reduced variants based on sweeteners (polyols and/or intense sweeteners) containing extracts of herbs, fruit or other plant substances, honey or malt: on November 18th 2015, the German competent authority provided the Commission with three applications from SOLDAN Holding + Bonbonspezialitäten GmbH, Josef Mack GmbH & Co. KG and the Association of the German Confectionery Industry for the terms ‘Hustenbonbon’, ‘Hoestbonbon’, ‘rebucados para a tosse’, and ‘cough drops’, to be used as generic descriptors in Germany and in Austria (‘Hustenbonbon’), in the Netherlands (‘Hoestbonbon’), in Portugal (‘Rebucados para a tosse‘) and in the United Kingdom (‘Cough drops‘).

After a public consultation and the notification to the TRIS system of the EU Commission and to the WTO, the draft received a favorable opinion by the Standing Committee on Plants, Animals, Food and Feed – Section: General food law – on 22nd October 2018.

We are not certain about the date of publication yet, but the Regulation will enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

Top ten 2018 articles and Foodlawlatest.com achievements

Dear readers,

At the end of 2018, foodlawlatest.com ranked 2nd in the category Niche and Specialty niche_and_specialty_-_2nd_place_badgeLaw Blog in the blog contest launched by the Expert Institute.

Thank you for all your support and for your votes.

After 5 years of activity is time to give you some numbers.

This year we proudly served more than 100 clients, on 3 continents (EU, North America, Asia) and we gathered readers from more than 160 countries.

Our LinkedIn group, with much more info and updates, is now including more than 4.000 food professionals and we launched with success our first massive online webinar (on FDA labeling).

Just as we speak we are gathering subscriptions for the next webinar’s wave and soon there will be much more: guest speakers from around the world will introduce you to food law in the major markets (a hint: the 1st one will be on the upcoming new Chinese labeling legislation…). From fall 2018 I am as well guest instructor for online courses of the Michigan State University Institute for Food Laws and Regulations.

Now we are a team of 5 here in Torino’s office and we cover more than 60 markets through local partners and contractors. In 2019 we would like to scale up, refresh the website and publish more frequently, launch a YouTube channel and bring to the surface the huge network and the different skills that we might put on the plate when it comes to offer you a strategic advice in marketing food. Two major publications on food labeling (in English) are as well in the pipeline.

Between our major partners, I’d like already to quote (and thank for the great support and exchange of knowledge):

  • MoniQa: MoniQA is an international and interdisciplinary network of professionals from institutions working in food research, regulatory bodies and trade, providing solutions to promote a safer and secure food supply worldwide. The main focus of the association is on food allergen management and food fraud prevention and I sit in the Scientific Advisory Committee;
  • Arcadia International: Arcadia is a multi-disciplinary consultancy dedicated to the food and feed value chain and is also recognized as expert by several European Commission Directorate-Generals for agriculture and food related activities. In particular a mention goes to my great friend Francesco Montanari, food lawyer in Lisbon/Paris;
  • ShantallaJohn G. Keogh: Shantalla provides retainer-based advisory services and project-based research for clients in the public and private sectors globally, on topics like:
    • Strategy & Policy Advisory
    • Supply Chain Integrity incl. Traceability and Brand Protection
    • Product and Consumer Safety incl. Recall
    • Supply Chain Transparency & Consumer Trust
    • Sustainability, Compliance & Governance
    • Industry Standards (GS1)
    • Technology Advisory incl. IoT & Blockchain Use Cases

Coming back to our blog, the most read articles in 2018 – in case you missed them – were the following:

  1. EFSA – Consumer perceptions of emerging risks in the food chain
  2. Food fraud update at EU level and Interpol/Europol Opson VII operation preliminary findings
  3. Vietnam – New Criminal Code provides stricter sanctions for food safety violations
  4. QeA EU Parliament – EU Commission to EU Parliament on Meat Sounding
  5. QeA EU Commission to EU Parliament – Allergens declaration on non pre-packed food
  6. EU Audit in Belgium on organic production and labeling – Are we still surprised of “organic frauds”?
  7. EU Study on Food Waste and Date Marking published
  8. FDA finalizes the extension of the compliance dates for new Nutrition Facts
  9. Food Law in Asia and Food Law in US Conference (Rome 16-17th April 2018)
  10. Hard times for industrial trans fats: EU upcoming legal limit and FDA moves

Please let us know what we can do more or better and thank you for your continuous support!

Cesare