EU Study on Food Waste and Date Marking published

The EU Commission is publishing a study which estimates that up to 10% of the 88 million tons of food waste generated annually in the EU are linked to date marking.

The study was commissioned with a view to map how date marking is used in the market by food business operators and control authorities. The study found wide variation in date marking practices which, along with poor legibility of date marks (for 11% of products sampled), do not facilitate consumer understanding. Conclusions of the study stress that strengthened cooperation and innovation amongst actors in the food supply chain can play an important role in preventing food waste and that additional guidance by control authorities may be needed in certain areas, for instance to facilitate food redistribution past the “best before” date.

Date marking is specifically tackled by the Commission as part the Circular Economy Action Plan to prevent food waste generation in the EU.  In order to discuss with all key players the report’s findings and their possible implications for food waste prevention, the Commission will create a dedicated sub-group on date marking under the EU Platform on Food Losses and Food Waste. Objectives will be to discuss possible options (legislative and non-legislative) and help guide coordinated action by all actors concerned:  public authorities in EU Member States, food business operators, consumer – and other NGOs.

The Commission’s study is available here

In general, is interesting to note that the market research found variation in date marking practices within product types and among Member States. Of the ten product types sampled for this study, only sauce, sliced bread, and fresh juice had predominantly the same type of date mark in all eight Member States surveyed. (Along with hard cheese, these were the product types for which more than 80% of products sampled displayed a “best before” date mark.)

The other product types tend to display a “use by” date mark in some Member States but a “best before” date mark in others. Examples were even found of otherwise identical products manufactured by international brands displaying a “use by” date in one Member State and a “best before” date in another. In general, “use by” date marks were less commonly found on products purchased in Sweden and Germany than on the same products purchased in other Member States.

The stakeholder interviews provided insights into the causes of the differences among FBOs and among Member States in what type of date mark is regarded as appropriate for which type of product and why:

  • a product type carrying “use by” in some markets will carry a “best before” date mark in others
  • “use by” date marks are being used on some products where there is no apparent food safety reason for doing so and thus where a ‘”best before” date would be more appropriate; and
  • there are examples of products listed in Annex X of the FIC Regulation (Reg. EU n. 1169/2011) having a date mark where none is required.

Some producers are taking account of factors beyond the product characteristics when determining how to apply the terms of the FIC Regulation. These include their perceptions of consumer knowledge of date labels. Some producers apply “use by” date marks to products (for which a “best before” date mark would be more appropriate) as a precautionary measure given the uncertainties about consumer
handling food safely.

This is also linked to:

  • different perceptions as to which foods are ‘highly perishable’ in each market;
  • retailer preferences for date marking practices, including examples of:
  • a preference for using “use by” dates for particular categories of product, such as all chilled products or all fresh produce; and
  • a preference to use “use by” dates to indicate freshness to the consumer

Retailers tend to favour a consistent approach to date marking for each product type in each national market but are used to accommodating variation in labeling practice between national markets. The determination of the preferred type of label in each
country is influenced by factors that include perceived expectations of consumers and, in some cases, guidance provided by a trade association or the relevant National Competent Authorities (NCAs).

The market survey found also that:

  • A wide range of storage advice was available for the sampled products, particularly in relation to the appropriate storage temperature for chilled products (which was expressed either as a maximum temperature or a temperature range).
  • The storage temperatures quoted on products tended to be lower than the standard maximum retail temperatures mentioned by interviewees as the norm for the relevant market. The storage advice in the same product group was often found to vary or even be contradictory across different markets, potentially leading to consumer confusion.
  • There was variation across the product types in the prevalence of advice on open life. Such advice was provided on the majority of fresh juice and pre-prepared chilled pasta products. It was least commonly found on yoghurt, tomato sauce, hard cheese and sliced bread.

Interviewees acknowledged the lack of consistency in storage advice and open life advice. There was no consensus on what constituted good quality, non-mandatory advice on open life for consumers.

The discussions suggested that FBOs’ concern to avoid customer complaints and adjustments for factors such as consumer knowledge, and uncertainty about the  conditions in which the product might be stored, led them to use formulations such as ‘consume immediately’ as a precautionary measure.

Romania Suspends Unclear Food Waste Law

Today I receive and publish an interesting contribution about the recent “food waste” law recently entered into force in Romania, coming from Oana Constantinescu and Toma Barbărasă (respectively partner and attorney at law at Schoenherr si Asociatii SCA).

After France and Italy to my knowledge that is the most concrete attempt in EU to mitigate the problem by law: the path seems nonetheless paved of difficulties. Compared to the Italian legislation (already covered on this blog) a point of merit is the provision of sanctions; but the negligible amounts of the fines could foster the lack of application of the law.

It will be extremely useful to follow the developments of these bills and try to measure the impact of them in the mid-term, since doubts on their real effectiveness seems to remain.

A new law meant to fight food waste in Romania came into force in late May but is now inapplicable, as its provisions are unclear and application norms have yet to be published.

On 21 May 2017, Law 217/2016 on Food Waste Reduction entered into force (the “Law“). The Law aims to reduce food waste by imposing measures on all operators in the food industry.

The issues

In its current form, the Law has already raised concerns about its scope as well as the practical measures that operators need to take in order to comply with it.

For instance, it is not clear which entities must comply with the Law, as the Law stipulates that it applies to operators in the agri-food sector without defining who these are. This may raise more difficulties, since the Law only refers to enterprises (in terms of applicable sanctions), but does not define them.

In addition, the Law does not provide a definition for products that are close to expiry. This is important, since a clear distinction needs to be made between highly perishable products that can only stay a few days before becoming unsafe and products with a longer validity.

Another cause for concern is the lack of clear procedures, as food operators are given no guidelines or instructions on how to implement the measures in practice. Of course, each operator must assess its activity on a case-by-case basis and proceed depending on the products and its specific activity.

All of these issues are meant to be resolved through the application norms, which were supposed to be drafted by 21 May 2017, but have now been pushed back pending analysis.

In the beginning of June, the Ministry of Agriculture issued a statement saying that the legal mechanisms included in the normative act cannot be applied and that the enforcement of the law is postponed until further notice.

Outline of the measures imposed

Under the Law food operators must take the following effective measures:

  1. Accountability measures for the reduction of food waste in the entire agri-food chain, from the manufacturing stage to the marketing stage, and to the final consumer;
  2. Low-priced sale measures for products close to expiry;
  3. Transfer measures by donation or sponsorship for products close to expiry; such transfers shall be made to entities specifically registered in this respect;
  4. Measures for the direction of by-products not intended for human consumption under Regulation (EC) 1774/2002, under certain conditions, for the disposal of animal by-products;
  5. Measures for the direction of agri-food products unfit for human or animal consumption by transformation into compost;
  6. Measures for the direction of agri-food products unfit for human or animal consumption for their transformation into biogas;
  7. Measures for the direction of by-products left after going through the above stages to an authorised neutralising unit.

The Law gives food operators the opportunity to offer nearly expired products to associations, foundations and social enterprises. It also sets maximum amounts in this respect, namely 3 % + VAT of the purchase price (for food marketers) or of the production price (for food manufacturers or processors). In their turn, associations and foundations may market the offered products at maximum 25 % + VAT of the purchase price (in case they receive the products from food marketers) and at maximum 25 % + VAT of the production price (in case they receive the products from food manufacturers or processors).

Sanctions

Operators who fail to observe the above measures will face fines ranging from RON 1,000 to RON 10,000 (approx. EUR 220 to EUR 2,200). The fines depend on the size of the entity, i.e. big enterprises will face higher fines.

Conclusions

Although the Law officially came into force on 21 May 2017, its provisions are not clear enough to be applicable in practice. Moreover, the Ministry of Agriculture and Rural Development had the legal obligation to enact application norms for the Law before 21 May 2017. Although the norms were initially published on the Ministry’s website for public debate, they are now no longer available.

A serious issue that the Law may trigger is so-called parallel trade caused by the obligations imposed on operators. On the one hand, operators must donate or sell products close to expiry at a low price. On the other hand, associations and foundations that purchase these products at a low price may then market them at maximum 25 % + VAT of the purchase/production price. Since the Law sets a maximum value for the latter, there is a risk that the price may raise competition issues by becoming fixed, thus affecting operators on a free market.

Obviously the Law will have a major impact on all players in the agri-food sector. A deeper analysis of the impacts will be required before the issues (or at least some of them) can be resolved.

Oana Constantinescu and Toma Barbărasă (respectively partner and attorney at law at Schoenherr si Asociatii SCA)