EU DG Sante changes in policymaking strategy? The alcoholic beverages report case

The DG Sante of the EU Commission on 13th March 2017 published a report – due by 13th December 2014 – responding to the obligation set by Article 16(4) of Regulation (EU) No 1169/20111 on the provision of food information to consumers.

This provision exempted alcoholic beverages containing more than 1,2 % by volume of alcohol from the mandatory list of ingredients and the nutrition declaration and stated that the Commission shall produce a report addressing whether alcoholic beverages should be covered, in particular, by the requirement to provide the information on the energy value, and the reasons justifying possible exemptions, taking into account the need to ensure coherence with other relevant Union policies and considering in this context the need to propose a definition of ‘alcopops’.

Here below the Commission’s conclusions of the report and a brief comment about the solution proposed by the DG Sante:

“Under the current rules, unlike for other foods, the indication of the list of ingredients and the nutrition declaration is not obligatory for alcoholic beverages. With the nutrition declaration having become mandatory for the vast majority of pre-packed food as of 13 December 2016, the particular situation of alcoholic beverages is now even more salient.

European consumers have therefore reduced access to the nutrition declaration and to the list of ingredients with the exception of ingredients which may have an allergenic effect. The European Parliament, but also the World Health Organisation, consumer and public health organisations are now asking for new labelling rules for alcoholic beverages, especially concerning the labelling of the energy value.

Member States’ experts indicated some expectations, especially regarding the nutrition declaration, and more particularly for the mandatory labelling of the energy value.

In the past, the economic sectors concerned have voiced their opposition to a mandatory labelling regime. Today, the sector acknowledges the right of consumers to know what they are drinking. On that basis, an increasing number of voluntary initiatives have emerged providing consumers with information on the ingredients, the energy value or the full nutrition declaration of alcoholic beverages and addressing consumers’ expectations for more information on the drinks they consume. Originally, such voluntary information was mainly accessible through new information and communication technologies. However, according to information from the sector, it should now increasingly be found on the labels themselves.

In view of the lack of legal action in this area, some Member States have adopted national rules requesting partial indication of ingredients for certain alcoholic drinks. Even if the provisions for the nutrition declaration are fully harmonised, some Member States are also notifying national measures addressing the nutrition declaration for alcoholic beverages. Such national initiatives contribute to an increased risk of market fragmentation.

The list of ingredients and the nutrition declaration are key information particulars that help consumers to make more informed and healthier choices. The exemptions from the list of ingredients and from the nutrition declaration for certain foods cover, mainly, single ingredient products, whose name suffice to inform the consumers about their content, like salt, fruits and vegetables. However, in the case of alcoholic beverages, it cannot be assumed that consumers are necessarily aware of the generally various ingredients used in the production process and of their nutritional value.

On the basis of the information reviewed, the Commission has not identified objective grounds that would justify the absence of information on ingredients and nutrition information on alcoholic beverages or a differentiated treatment for some alcoholic beverages, such as ‘alcopops’. At this stage, the Commission therefore sees no need or clear added value for a specific definition of ‘alcopops’ for labelling purposes.

This report shows that the sector is increasingly prepared to provide responses to consumers’ expectations to know what they are drinking. This is demonstrated by the expansion of concerted or independent voluntary initiatives developed and implemented by the sector to provide consumers with information on the list of ingredients, the energy value and/or the full nutrition declaration on or off label. It has to be particularly noted that a rising number of alcoholic beverages present on the EU market already bear the full nutrition declaration. Taking into account these recent developments, the Commission considers that as a first step, current voluntary initiatives should be allowed to develop further so as to provide list of ingredients and nutrition declaration. It therefore invites the industry to respond to consumers’ expectations and present within a year of adoption of this report a self-regulatory proposal that would cover the entire sector of alcoholic beverages.

The Commission will assess the industry’s proposal. Should the Commission consider the self-regulatory approach proposed by the industry as unsatisfactory, it would then launch an impact assessment to review further available options: in line with Better Regulation principles this impact assessment would consider regulatory as well as non-regulatory options, in particular, regarding, the provision of information on the energy value of alcoholic beverages; such assessment should carefully consider the impact of options on the internal market, on the economic sectors concerned, on consumers’ needs and the actual use of this information, as well as on international trade.”

Commission’s recent conclusions are quite peculiar, at least in the food sector panorama. Since today, DG Sante never delegated similar tasks to industry: it has to be held in account that from one side the information discussed constitute – fundamentally – labeling obligation, but on the other side the choice to intervene or not could greatly impact on sensitive public health issues and on Member States expenses for prevention of NCDs and alcohol related diseases.

Politically speaking, this could be read as a signal of political weakness of the Commission? Maybe, but on my view it is more probably a way to “put the hot potato” in the hands of the industry, that in case of inaction will be most probably the target of the blame of the public opinion next year.

The efforts made by the industry in the recent years, in terms of consumer information and promotion of responsible consumption of alcohol, are undubitable: but now the sector has to show its full maturity and present a balanced proposal. Otherwise, it could face some difficult times on the road ahead.

EU Preliminary Impact Assessment on Trans Fats policy options

The EU Commission just published an inception impact assessment about a potential upcoming Regulation about limitation of trans fats in foods (3rd quarter 2017).

Although different actions were taken in different Member States of the EU and intakes of trans fats have overall decreased over the past years, other Member States have not taken action.

Industrial trans fats are still present at levels of concern in certain foods in the EU and intakes are still excessive in certain cases (especially having in mind EFSA’s recommendation that trans fats intakes should be as low as is possible within the context of a nutritionally adequate diet). The issue is of particular relevance in certain Member States and for particular population groups. This lack of homogeneity in the EU hampers the effective functioning of the Internal Market, negatively affects the protection of consumers’ health and contributes to the perpetuation of health inequalities.

The Commission is currently considering an EU-based initiative to limit trans fats intakes, which would have the added value of coherent and simultaneous application in the entire EU. This initiative would focus on industrial trans fats, given that ruminant trans fats sources generally contribute in a limited way to the total daily energy intake and ruminant trans fats are naturally present in foods that are important in the EU diet and cannot therefore totally be avoided.

The Commission presented its first analysis on trans fats in its report to the European Parliament and the Council of 3 December 2015 regarding trans fats in foods and in the overall diet of the Union population. The report was requested by Article 30(7) of Regulation (EU) No 1169/2011 of the European Parliament and the Council on the provision of food information to consumers which stated: “By 13 December 2014, the Commission, taking into account scientific evidence and experience acquired in Member States, shall submit a report on the presence of trans fats in foods and in the overall diet of the Union population. The aim of the report shall be to assess the impact of appropriate means that could enable consumers to make healthier food and overall dietary choices or that could promote the provision of healthier food options to consumers, including, among others, the provision of information on trans fats to consumers or restrictions on their use. The Commission shall accompany this report with a legislative proposal, if appropriate”.

The report concluded that a legal limit for industrial trans fats would be the most effective measure in terms of public health, consumer protection and compatibility with the Internal Market but that further investigation is required. In accordance with Better Regulation principles, the Commission communicated its intention to carry out an impact assessment, including a public consultation on the matter, in order to take an informed policy decision in the near future.

This Inception Impact Assessment (IIA) marks the beginning of the announced work of the European Commission.

All the stakeholders that intervened in the debate on trans fats so far have welcomed the Commission’s report and/or supported an EU initiative to set legal limits to industrial trans fats in foods, both on the consumers’ side and on the industry’s side. The issue would therefore appear not controversial and the added value of an EU initiative in the field would seem undisputed.

In several platforms, EU action on industrial trans fats has been defined by consumers’ organisations and food business operators as a “low hanging fruit” that would improve consumers’ health at very limited costs. In this context, of particular note are the number of reformulation commitments to lower the content of industrial trans fats in foods made in the past years by food manufacturers in the EU Platform for Diet, Physical Activity and Health.

The positions of industry stakeholders (well summarised in a statement by Food Drink Europe of 19 November 2015) 17 indicate that the industrial trans fats content of foods can effectively be lowered without disproportionate costs (this was confirmed in Denmark, the first Member State introducing a legal limit for industrial trans fats in foods), that an EU initiative would benefit not only to consumers but also to the industry by setting a level playing field in the Internal Market, and that particular support might be needed for SMEs.

In the EU, it is of particular note that legislative measures limiting the content of industrial trans fats to 2% of the total fat content of the food were adopted in Denmark (2003), Austria (2009), Hungary (2013) and Latvia (2015). In Belgium, Germany, the Netherlands, Poland, the UK and Greece, voluntary self-regulation measures have been agreed with the food industry. Legal measures limiting the content of industrial trans fats in foods exist also outside the EU (e.g. in Switzerland, Iceland, Norway as well as in the US, where the Food and Drug Administration concluded in 2015 that partially hydrogenated oils, the primary dietary source of industrial trans fats, are no longer to be considered as “generally recognized as safe” (GRAS) for use in food).

EU legislation sets legal limits for trans fats in infant formula and follow-on formula (3% of the total fat content of the food, to allow for the use of milk, which naturally contains ruminant trans fats, as a source of fat). Regulation (EU) No 1169/2011 requires since 13 December 2014 to specify in the ingredients list of all prepacked foods (non pre-packed foods are not covered by this provision) whether refined fats/oils are partly hydrogenated. The Regulation however does not require the indication of the exact trans fats content of foods in the nutrition declaration and they cannot even declared in the table on voluntary basis.

The options examined in this IIA, are the following:

  • Option 0 – No EU policy change (baseline scenario)
  • Option 1 – Establishment of a limit for the industrial trans fats content in foods

In this option, the EU would establish a limit for the presence of industrial trans fats in foods (both pre-packed and non-pre-packed), through voluntary agreement with relevant stakeholders or with legally binding measures.

  • Option 2 – Introduction of the obligation to indicate the trans fats content of foods in the nutrition declaration
  • Option 3 – Prohibition of the use of partly hydrogenated oils (PHO) in foods

In this option, the EU would follow the same approach as adopted in the US and would prohibit the use of PHOs in foods, on the basis of the consideration that these are the primary dietary source of industrial trans fats. As in the case of Option 1, this could be achieved through a voluntary agreement with the relevant food business operators, or a legally-binding measure

The following future consultations are planned in order to obtain further feedback in preparation for the Impact Assessment:

  • Open Public consultation (12 weeks): this consultation will be open to everyone and will be carried out on the basis of a consultation document that will take into account the comments submitted on the IIA. It will be aimed at obtaining feedback on the different policy options and the expected impacts.
  • Targeted consultation to be carried out by the contractor in the context of its study: this consultation will cover stakeholders with a specific interest in the initiative (consumers’ and health NGOs, food business operators and national authorities) and will be aimed at collecting feedback to triangulate (verify) the contractor’s findings on the expected impacts that the options finally retained for the Impact Assessment will have in a number of different areas (e.g. protection of consumers’ health, costs and regulatory burden, offer of products to consumers, functioning of the Internal Market, competitiveness, external trade, enforcement). The Commission will be particularly interested in collecting feedback at local level, from SMEs and manufacturers of non-pre-packed foods.

The last part of the IIA offers an interesting first evaluation of all the policy options impact on environment, economy, internal market, public health, SMEs, international trade and all the main stakeholders involved.