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.

Written QeA to EU Commission – Indication of the production site on labels

In the following answer to the written question of the Italian MEP Nicola Caputo, Commissioner Andriukaitis seems to close definitely the doors to the option of a EU level introduction of the mandatory indication of the production site or packaging center on the food labels. This kind of indication was mandatory in Italy under the former EU regime (Directive 2000/13/EC) and the subsequent national implementing act (Legislative Decree 109/1992) in addition to the business name and the address of the FBO responsible.

If Italy wants to reintroduce this indication, should notify the Commission the legislative proposal, also if the road seems paved of difficulties. In light of the Union’s concept of “origin” (expressed in the Custom Code), it is not easy to sustain the request, as well as on the ground of safety and traceability. The traceability is guaranteed by other means and also under the old national regime the factories with a health mark (Reg. UE 853/2004 and 854/2004) were exempted by this mandatory indication, as well as the prepacked foods coming from other EU countries and sold in Italy as such. It was therefore clear the intent to pursue public health with other means and to not hinder the trade of goods on the common market.

The Italian competent Ministries intention is to notify a measure to the EU Commission, with the aim to reintroduce the additional mandatory indication, but the legal and political conundrum seems challenging.

Question for written answer to the Commission – Nicola Caputo (S&D) – 11 March 2015

Subject:  Indication of the production site on labels

Regulation (EU) No 1169/2011, in force since December 2014, does not establish, in a European context, an obligation to show the production site on food labels.

This fact is another ‘lost opportunity’ in the defence of ‘made in’ labels on food, with obvious negative impacts on the role of European — and, in particular, Italian — food transformation and production outside national borders, raising serious questions about traceability from the moment of production.

Not even a re-introduction of this obligation only within national borders can be conclusive, further fragmenting the internal market.

On the other hand, products of animal origin (meat and meat products) have always shown the production site on the label, in compliance with EU rules on food hygiene.

Therefore, it is desirable to apply this requirement to all Member States, in order to provide full information to the consumer and promote Italian production.

That said, can the Commission say how it intends to include a measure and harmonise rules so as to defend the ‘made in’ labels on food products?

Answer given by Mr Andriukaitis on behalf of the Commission – 6 May 2015

Directive 2000/13/EC(1), which was repealed and replaced by Regulation (EU) No 1169/2011(2) as of 13 December 2014, allowed Member States to retain national provisions which require indication of the factory or packaging centre, in respect of home production, on the labelling of foods.(3)

During the negotiations that led to the adoption of Regulation (EU) No 1169/2011, one Member State proposed the introduction of a similar requirement at Union level. Although supported by the Commission, this suggestion was not endorsed by the other Member States. Eventually, the co-legislators decided to make compulsory on the package or on a label attached thereto only the name or business name and address of the food business 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.(4)

Regulation (EU) No 1169/2011 further clarified that the name, business name or address of the food business operator on the label does not constitute an indication of origin within the meaning of the regulation.(5) Furthermore, it set out specific requirements concerning the origin of foods. However, it does not empower the Commission to proceed to a harmonised measure as requested by the Honourable Member.

(1) Directive 2000/13/EC of the European Parliament and of the Council of 20.3.2000 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs (OJ L 109, 6.5.2000, p. 29).
(2) Regulation (EU) No 1169/2011 of the European Parliament and of the Council of 25.10.2011 on the provision of food information to consumers (OJ L 304, 22.11.2011, p. 18).
(3) Article 3(2) of Directive 2000/13/EC.
(4) Article 9(1)(h) read in conjunction with Article 8(1) of Regulation (EU) No 1169/2011.
(5) Article 2(2)(g) of Regulation (EU) No 1169/2011.

(Source: EU Parliament)