Origin labelling of primary ingredients: EU rules eventually adopted!
On 28 May, the European Commission adopted the long-awaited Implementing Regulation 2018/775 (‘Implementing Regulation’) laying down rules for the application of Article 26.3 of Regulation 1169/2011 on the provision of information to consumers (‘FIC Regulation’), as regards the rules for indicating the country of origin or place of provenance of the primary ingredient of a food.
The Implementing Regulation applies in the cases where the country of origin or the place of provenance of a food is given, voluntarily or mandatorily, by any means such as statements, pictorial presentation, symbols or terms, and where the country of origin or place of provenance is not the same as that of its primary ingredient, for example Belgian chocolate while cocoa beans do not originate in Belgium.
Origin labelling is, a.o. mandatory when its omission could mislead the consumers regarding the true country of origin or place of provenance of the food and for meat which falls within the Combined Nomenclature codes and relevant implementing acts of the European Commission (Art. 26.2 of the FIC Regulation).
Are excluded from the scope:
- Customary and generic names which include geographic terms that literally indicate origin but whose understanding is not an indication of origin or place of provenance of the food, such as Bolognese sauce or Burgundy snails. This exemption is justified by the fact that customary and generic names are indeed not considered as referring to origin.
- Protected geographical indications and registered trademarks.
Various options to label the origin of primary ingredients
Different options of indicating the country of origin or the place of provenance of a primary ingredient which is not the same as the given country of origin or the given place of provenance of the food are set out in the Implementing Regulation. They include:
- A reference to a geographical area: ‘EU’, ‘non-EU’ or ‘EU and non-EU’;
- Regions or any other geographical area either within several Member States or third countries;
- FAO fishing areas, sea or freshwater body;
- Member State(s) or third country(ies);
- The country of origin or place of provenance in accordance with specific Union provisions applicable for the primary ingredient(s) as such.
Food business operators (FBOs) may also use the following or similar statement to inform the consumers: ‘(name of the primary ingredient) do/does not originate from (the country of origin or the place of provenance of the food)’.
Presentation in the same field of vision
FBOs should be particularly aware that the Implementing Regulation requires that the origin of primary ingredients must appear in the same field of vision as the indication of origin of the food, whether provided with words or in non-scriptural form. The font size cannot be smaller than the minimum font size required by the FIC Regulation, i.e. 1.2 mm x-height or 0.9 mm x-height for packages with the largest surface area of less than 80cm2. It must be of at least 75% of the x-height for the indications provided with words.
- The Implementing Regulation raised a lot of concerns in its drafting stage. Various stakeholders and third countries, such as Canada and the United States, expressed their views during the public consultation which was launched at the beginning of this year. The final text of the Implementing Regulation did not undergo any substantial modifications except for a more elaborated scope and a later date of application. Consequently, certain interpretation issues remain unsolved:
- The Implementing Regulation does not further clarify the notion of the ‘primary ingredient’. It therefore remains unclear whether, according to the definition given by the FIC Regulation, the notion of “primary ingredient” refers to one or several ingredients, or what happens in cases where the quantitative ingredient declaration (QUID) is not required;
- Also, one may wonder if the Implementing Regulation excludes any possibility to mislead the consumer when it comes to the available options to indicate the origin of the primary ingredient.
During the public hearing in the European Parliament on 4 June, several stakeholders called for a Commission’s guidance.
Application as of 1 April 2020 and exhaustion of stocks
Following the requests of various stakeholders expressed in the public consultation on the draft Implementing Regulation, the European Commission changed the date of application of the final Implementing Regulation to 1 April 2020 (instead of 1 April 2019 as initially proposed). Furthermore, transitional measures apply to food placed on the market or labelled before 1 April 2020. They can be marketed until exhaustion of stocks.
AudeMahyAttorney at law Counsel
Aude Mahy is counsel to our Brussels office. She is a member of the Loyens & Loeff Litigation & Risk Management Practice Group in Belgium and heads the Benelux Food & Beverages Team.T: +32 2 743 43 25 E: email@example.com