Position/Statement: Food Federation Germany comments on the European Commission’s Inception Impact Assessment on a proposal for a revision of Regulation (EU) No 1169/2011 on the provision of food information to consumers: Food Federation

Feb 16th 2021 - Food Federation Germany (Lebensmittelverband Deutschland e.V.) represents the German food sector “from farm to fork” in some 70 associations, 250 companies, and more than 150 personal and corporative members. It welcomes the opportunity to comment on the Commission’s plans for an Impact Assessment (IA) with regard to the “labelling elements” of the Farm to Fork Strategy as presented in the Inception Impact Assessment (IIA) and wishes to highlight the following.

We fully support FoodDrinkEurope’s comments on the IIA that we have in part integrated into our comments. The same applies to all our members’ specific comments that introduced in the feedback mechanism and wish to highlight the following:

The scope of the IA needs to be extended beyond the issues of FOPNL, origin labelling and date marking to make sure the full potential of labelling for more sustainable food systems is properly assessed. To name but a few examples here: digital consumer information (Art. 12.3 FIC Regulation), precautionary allergen labelling ((Art. 36 (3) a) FIC Regulation, information on foods suitable for vegans/vegetarians (Art. 36 (3) b) FIC Regulation. Taking the example of precautionary allergen labelling: whereas the understanding that very small amounts of allergens do not cause severe reactions is growing amongst scientists, the “zero-tolerance-approach” applied now unnecessarily limits consumer choice and causes enormous and unnecessary economic damage - and that is why EU-wide agreed “threshold levels” have to be established.
All measures need to be science- and evidence based, and in that context full account needs to be taken of all scientific and other assessment already done, for example of the EFSA opinion on nutrient profiles from 2008 or the various impact assessments on origin labelling that have been completed under the FIC Regulation in 2014/2015. In addition, all research now needs to additionally focus on the new issue of sustainability that has not been assessed before.
The IA needs to specifically assess the effects of the plethora of member state legislative initiatives that have in the last years filled the “void” caused by the lack of harmonised European legislation and initiatives. Many of those have not even been notified to the Commission and without a complete picture of all member states regulations and recommendations that “contain” origin labelling, nutrition labelling or any other labelling obligations, the Commission’s IA will not be complete and possibly disregarding the negative effects of such member state legislation co-existing with EU-legislation in the future.
The IA should positively assess the potential of voluntary measures for achieving the sustainability goals pursued and not merely discredit them as “Option 0” and “business as usual” as has now been done in the IIA. Harmonised criteria for voluntary consumer information may well prove to be the best option not only for achieving support and agreement, but also for achieving the sustainability goals pursued and to overcome otherwise unsurmountable obstacles for agreement for example on FOPNL. And the Commission must also assess what effect measures may have on existing voluntary business models that have been established in response to consumer demand.
The IA should especially focus on the effects measures may have with regard to the principle of the free circulation of goods in the single market that has been established for a reason and on the basis of the understanding that prima facie a re-nationalisation of markets is against the interests of consumers and businesses and can therefore not be “sustainable”. And in that context the mere notion that harmonised legislation is “better” than member state legislation will in itself not suffice to justify for example replacing member state legislation on origin labelling that has virtually all been declared invalid by the European Court of Justice.
Taking the example of origin labelling further, such re-nationalisation of markets may well be the counter-productive effect of any additional origin labelling - especially when origin labelling is misunderstood by consumers as being a reference to better quality or sustainability which it is neither necessarily or normally. And whereas political pressure may be high, the mere fact that existing member state legislation has virtually all been declared invalid due to the lack of the necessary link between certain qualities of the food and its origin or provenance, the IA must not only ascertain whether or not consumers understand origin equalling quality and/or sustainability – and whether or not such consumer understanding can or cannot be justified. And if quality and sustainability are relevant for consumers, the labelling obligations pursued must deliver on those expectations – and where they cannot, they cannot be justified.

Additional key obervations are that

provision of food information to consumers is one of the key tools to allow consumers to make informed choices that fit their individual diets and lifestyles;
over the last decade, many new food labelling requirements have been introduced in the EU, as part of the FIC Regulation and beyond and any additional measures should only be introduced, if they can be justified by a strong science- and evidence base, not cause barriers to the free movement of goods, and do not create disproportionate additional burdens on companies, especially SMEs, which make up 99% of the European food and drink sector;
any measure in the context of the green deal and the farm-to-fork-strategy must deliver a clear added value as part of a holistic EU approach to food information provision;
any measure must take full account of and be assessed against the options that are existing with regard to digital information;
the increase in national rules and uncoordinated, individualistic approaches on food labelling across the EU over the past years is of specific concern,
and most of all, that a coherent and co-ordinated, science-based and harmonised framework will be essential if food information is to contribute to more sustainable food choices.

With regard to to broadening the scope of the IA we wish to highlight the following (again):

Responsibilities for providing accurate food information - Article 8: Article 8 of Reg. (EU) No 1169/2011 covers responsibilities to provide accurate food information for consumers. Given the increased availability of applications working on mobile devices that consumers can consult prior to purchasing products, Article 8 should be revised to adequately cover the responsibilities of third-party food information providers, who should be held responsible that information they provide adheres to the provisions of Article 7. In this context, the European Commission should develop guidance for national competent authorities and interested parties to ensure that consumer information delivered through digital means, including from third parties, abide by harmonized principles including accuracy, transparency, reliability and fairness, in order to better inform consumers and build trust among consumers and businesses.
Salt replacers - Annex VII, Part B: More consumer-friendly labelling of salt replacers (e.g. ‘potassium salt’ and ‘magnesium salt’ instead of ‘potassium chloride’ and ‘magnesium chloride’, respectively) may facilitate the gradual reduction of sodium content of food products (‘food product reformulation’) while maintaining consumer acceptance. This would require a technical change in Annex VII, Part B.
Iodised salt – Annex VII, Part E: similarly, consumer-friendly, informative labelling of “iodized salt” can contribute to improving the diet of European consumers in consonance with the objectives of the Farm to Fork Strategy. Under the FIC Regulation, compound ingredients – when used in processed foods – need to identify all their ingredients. Iodized salt is a compound ingredient consisting of salt and an iodine source. The latter has a chemical name, and these are always alienating consumers. Many food producers therefore choose plain, non-iodized salt. This situation can be addressed by allowing for a simplified labelling term “iodized salt” in Annex VII part E of the FIC Regulation.
Food information provided by means other than on the package or on the label - Art. 12(3): the European Commission should explore new ways to provide information to consumers through other means, including digital, to improve the accessibility of food information. Digital provision of information has the potential to communicate information to consumers more efficiently. Moreover, it reduces packaging waste and shipping costs and help the free movement of goods in the EU Single Market.
Conversion factors for the vitamins and minerals referred to in point 1 of Part A of Annex XIII - Art. 31(2): over the past few years, EFSA published scientific opinions on dietary reference values (DRVs) for vitamins and minerals and identified the basis of conversion factors. Harmonisation of vitamin conversion factors at EU level would provide greater consistency across the EU market.
Portions and unit of consumption - Art. 33(5): development of rules on the expression per portion or per consumption unit for specific categories of foods (e.g. foods which are already sold in pre-packed portions) would help consumers to understand the nutritional value of the amount of food/drink they actually consume.
Precautionary allergen labelling - Art. 36(3)(a): the absence of generally agreed quantitative benchmarks for the application of precautionary allergen labelling and the consequent lack of consistent harmonised standards among Member States and across industry led to lack of transparency, and confusion among allergic consumers. The development of a harmonised framework for the application of precautionary allergen labelling which meets the requirements of Article 36(2) of the FIC Regulation should be a priority.
Information related to suitability of a food for vegetarians or vegans – Art. 36(3)(b): the absence of EU harmonised criteria defining foods suitable for vegetarians or vegans can lead to obstructions of the free movement of goods and to contradictions in food labelling. In order to achieve certainty to the benefit of the industry and to avoid confusion on the part of the consumers, appropriate legal measures should be taken. Iin this regard we refer to the joint proposal of FoodDrinkEurope with the European Vegetarian Union (EVU) for an EU-wide definition which meets the needs of consumers interested in vegan and vegetarian products as well as those of manufacturers of such foods. Developing these criteria is also relevant in the context of precautionary allergen labelling, in cases where traces of allergens and/or ingredients derived from non-vegan or vegetarian sources may be present in foods which have been produced without the use of all or certain substances of animal origin.
Indication of reference intakes for specific population groups – Art. 36(3)(c): rules on (voluntary) reference intakes for specific population groups could ensure appropriate consideration of specific population groups, such as older infants and young children, by enabling them to determine the relative contribution of a food product to an overall-health promoting diet.

With regard to front-of-pack nutrition labelling and nutrient profiles

Whereas we welcome the European Commission’s intention to work towards a single, harmonised FOPNL system in the EU, the IA should especially also focus on the value that a voluntary scheme can have. It is for a reason that member states could not even agree on the elements of a harmonised approach when they discussed the matter last year under there German presidency – and did not even try to agree on the issue of obligatory labelling. It is even more relevant that all assessments are done separately for nutrient profiles as well that have proven even more difficult to agree upon in the last 20 years.

Accordingly, the IA should:

Provide complete and consistent legal certainty and clarity in relation to all FOPNL approaches on the EU market, in the short term. This should, inter alia, take into account the interactions between the FIC Regulation and Regulation (EC) No. 1924/2006 on nutrition and health claims made on foods since some FOPNL schemes fall under both Regulations, as well as mutual recognition of schemes in the interim period towards an EU harmonised approach.
Assess legally sound solutions for a consistent and unequivocal EU harmonised voluntary approach in the longer run. Whereas Article 35(1) of the FIC Regulation is generally adequate for voluntary FOPNL in the EU, provisions allowing the freedom for Member States to adopt national FOPNL schemes should ultimately be repealed.
Investigate both mandatory and voluntary options for every FOPNL scheme included in the IIA separately. Again, the assessment on FOPNL should not be confined to mandatory approaches but should – separately – also look at voluntary approaches for every option. This is deemed particularly relevant in view of potential differences in business impact between the two approaches (e.g. in terms of additional costs and burdens, especially for SMEs) as well as to avoid unintentional consequences for existing/alternative nutrition-related schemes which are currently on the market, such as the Nordic Keyhole scheme, the Danish Wholegrain Logo, the Finnish Heart Logo, etc. Overall, members support voluntary FOPNL within a defined EU harmonized framework. In this regard, impacts/compatibility of any policy decision on FOPNL on/with the longer-term vision of a sustainable food labelling framework should be carefully assessed.
Include and assess an additional FOPNL option, which combines numerical information on the energy value and on the content of specific nutrients with synthetic appreciation of the products’ overall nutritional value (e.g. the Health Star Rating labelling system).
Investigate the role of portion and category-specific approaches. Portion-based approaches must be considered for each FOPNL option, which is especially relevant for foods which are already sold in pre-packed portions. Category-specific FOPNL may also be considered for assessment under options no. 2, 3 and 4.
Assess exclusion and exemption (criteria) from FOPNL, for instance for foods for specific groups (FSG) as covered by Regulation (EU) 609/2013; meal replacements for weight control (MRs); young child formulae; foods intended for sports people; and other categories for which exclusions and exemptions from nutrition declaration are foreseen (e.g. as per Codex Alimentarius Standards). Those and other exclusions may well prove key for acceptance of any system.
As certain that FOPNL and nutrient profiles are based on sound scientific knowledge and evidence. We support the continued involvement of EFSA to inform the European Commission’s work on FOPNL as well as on nutrient profiles, respectively. Furthermore, (additional) scientifically validated consumer research may be required to establish an EU-wide FOPNL scheme. This should help to ensure scientific credibility and a holistic approach which recognizes the positive role that all foods can play in a balanced diet. It is regrettable in this respect that the Roadmap refers to non-scientific terminology/dichotomy, i.e. “healthy” vs. “unhealthy” food, which must be avoided as it gives a false and misleading message to citizens. Finally, with reference to the statements made in the Roadmap about food product reformulation, we would be keen to contribute with the industry’s experience to provide a more comprehensive picture in terms of possibilities and challenges for food companies.
Evaluate the appropriateness/suitability of using nutrient profiles aimed to govern nutrition and health claims for those aimed at FOPNL – not least, because nutrient profiles with their effect of prohibiting all nutrition and health communication and FOPNL with its extended consumer information approach serve very different purposes. At current, only Regulation (EC) 1924/2006 provides for a legal basis for the setting of nutrient profiles, in the specific context of restricting the use of nutrition and/or health claims on certain foods. In EFSA’s 2008 Scientific Opinion on the setting of nutrient profiles for foods bearing nutrition and health claims, EFSA concludes that “nutrient profiling is the classification of foods for specific purposes”; as the purpose and regulatory framework underpinning FOPNL differ from the rationale and regulatory framework of nutrition and health claims, there are therefore doubts about the appropriateness of applying the same nutrient profiles for different purposes.
Take into consideration the impact of Brexit. The proximity of the UK in particular to Ireland, and taking also into consideration the use of different FOP schemes in the EU market (including the UK ‘traffic light’ labelling scheme), Brexit will place an additional burden on producers who operate in the shared market, with a consequent impact on consumer choice and the availability of goods.

Country of origin labelling

It has been highlighted already that more-and-more obligatory origin labelling obligations in the internal market are, even though political pressure from member is at its highest, something that the Commission should be vary of, not least to preserve the internal market that is the biggest success in the history of European politics. And it is that for the very reason that a priori it consumers and businesses are profiting equally from open borders and products that have been produced and sourced throughout the EU. Now, wherever local or regional or whatever production is more sustainable that needs to be taken account of. And whereas information on origin and transparency in and of food information are important as such, the IA must establish on a sound evidence base that indeed origin labelling obligations referring to member states borders can or cannot help sustainable food choices – or are on the contrary discouraging those.

In 2015, the European Commission commissioned various reports that clearly identified a major negative impact for food business operators if origin indication, particularly at country-level, were to be required on a mandatory basis. There is little to no reason to believe that these effects have changed; in fact, negative business impacts may have aggravated due to fragmented national initiatives. We call on the European Commission to support the functioning of the Single Market by putting an end to the existing national mandatory origin labelling initiatives. And with reference to our introductory remarks thereon again: The IA should especially focus on the effects origin labelling may have on the free circulation of goods in the single market that has been established for a reason and on the basis of the understanding that prima facie a re-nationalisation of markets is against the interests of consumers and businesses and can therefore not be “sustainable”. If origin labelling results in re-nationalisation of markets it would be counter-productive - especially when origin labelling is misunderstood by consumers as being a reference to better quality or sustainability which it is neither necessarily or normally. And as existing member state legislation has virtually all been declared invalid due to the lack of the necessary link between certain qualities of the food and its origin or provenance, the IA must not only ascertain whether or not consumers understand origin equalling quality and/or sustainability – and whether or not such consumer understanding can or cannot be justified. And if quality and sustainability are relevant for consumers, the labelling obligations pursued must deliver on those expectations – and where they cannot, they cannot be justified.

Comments on impacts envisaged in the Commission’s Roadmap:

Economic impact: stringent economic impact assessment will be key and the Roadmap’s assertion that mandatory origin indication poses a “one-time cost” for companies is far from reality. An extension of mandatory origin labelling will inevitably decrease the sourcing flexibility of the supply chain. Though often using local suppliers, companies purchase their raw materials from other countries or on the world market for different reasons (e.g. seasonal availability, quality, price, sustainability). Further extension of mandatory origin labelling to other product categories will either take away all flexibility for companies to deviate sourcing in case of supply chain problems, or would mean the constant adaptation of food labels leading to higher costs and rising packaging waste. Despite the clear conclusions from the European Commission’s own reports, these aspects have been severely under-highlighted in the Commission Roadmap.
Impact on the Single Market and market/supply chain dynamics: The impact that the various policy options on country of origin labelling could have on the single market, including the costs and benefits for consumers and producers, should be thoroughly assessed and considered by making full use of instruments for Better Regulation, as also emphasized by the Council in its Conclusions on the Farm to Fork Strategy of 19 October 2020. It is however important to note that intra-Single Market trade figures in themselves may not always reveal the complete picture as they are not able to fully take into account the dynamics of re-nationalisation/segregation of supply chains as well as lost business contracts due to local sourcing requirements from customers. Therefore, it is important that the IIA includes, beyond an assessment of Single Market impact, a thorough analysis of market dynamics as a consequence of mandatory rules on country of origin labelling, particularly in terms of effects on SMEs’ business.
Impact on consumers: Often, the justification given for the adoption of rules on mandatory origin indication is consumers’ interest in such information. However, the Commission’s own reports and various studies have demonstrated that consumer interest is very heterogeneous across and within categories and countries. Furthermore, declared interest in origin information does not always translate into actual consumer behaviour as expressed by consumers’ willingness to pay, which should be investigated closely. Moreover, the Roadmap’s simple statement that “consumers will benefit from mandatory origin information” should be nuanced. For example, it is commonplace to shift the origin of ingredients according to seasonal availability and quality; mandatory origin labelling may push companies to use fewer local ingredients, rather than more, in order to avoid a constant change of the label, which could ultimately be to the potential detriment of consumers.
Environmental impact: It cannot be simply assumed that the provision of origin information leads to more sustainable choices and reduce the environmental impact of the food system; quite the contrary, less efficient food supply chains (e.g. new containers, specific packaging materials, additional cleaning procedures will have to be used to keep ingredients from different origins separated) will inevitably create food wastage. Moreover, the assumption that local production and short food supply chains are more sustainable in comparison to global supply chains per se is highly questionable. In fact, emerging evidence shows that short food supply chains could generate greater environmental externalities in certain instances. Concrete evidence (e.g. of changed consumer behaviour) would be needed to establish the proportionality of any eventual measures.

Additional policy options

We consider the following as must-be-inclusions in the IA:

Assessing the relevance of agreeing a harmonised framework for voluntary claims on “regional origin” with regard to consumer interest and relevance for the quality and sustainability of products – not least with a view on what other origin labelling options can or cannot deliver thereon accordingly.
An alternative baseline option that entails stricter enforcement of the existing provisions of the FIC Regulation vis-à-vis national measures on country of origin labelling, in line with the interpretation of Art. 39(1) of the FIC Regulation provided by the European Court of Justice in the Groupe Lactalis case,
Provision of information on country of origin via digital means (which offers more flexibility for operators, while allowing for more comprehensive information provision to consumers). Article 12(3) of the FIC Regulation could usefully be enacted for this purpose.
For Roadmap options no. 1–3, a sub-option that allows indication of origin from more than one country and/or region.

Date marking

Whereas we support the European Commission’s objective to halve food waste by 2030 in line with SGD Target 12.3, and to enhance consumer understanding on date marking, we also believe that the current principle of a safety-based descriptor (“use by”) and a quality-based descriptor (“best before”) remains appropriate and should not be changed. However, in some languages, “best before” and “use by” may be very close in meaning. Accordingly, wherever a change in the wording may help consumer understanding, the FIC Regulation, it should be ensured that the wording used in each Member State for “best before” and “use by” is the best suited to guarantee consumer understanding of date marking – and eventually changed.

Moreover, a harmonized, reliable and coherent consumer-facing date marking system is one of the tools that can help to prevent food waste. This must be coupled with education campaigns, as well as coordinated and enduring EU-wide communication initiatives (e.g. through social media, partnerships with schools and national media) which are needed to improve consumer understanding of date labels and to raise awareness of other ways to prevent and reduce food waste. The European Commission should convene all relevant stakeholders for a joint EU initiative to educate Europe’s citizens about date marking.

At the same time, available research shows the whereas the understanding of date marking can and indeed should be better, misunderstanding of the terms used is no major factor causing food losses and accordingly may well have therefore only a minor effect on their reduction. The IA should therefore assess very thoroughly whether that is still the case or has considerably changed recently.

Lastly, we would like to draw attention to novel innovations and technologies in relation to date marking, such as time-temperature indicators, which can be applied on the packaging to indicate the remaining shelf-life of perishable products throughout storage, distribution and consumption. These devices provide visual information that are easily accessible, thus leading to a better monitoring of the cold chain, development of stock rotation, reduction of food waste and ultimately effective shelf-life management. We encourage the European Commission to take into account these newly available technologies and to facilitate their use on a voluntary basis within the regulatory framework for date marking.