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How the EU has Left "Clean Labelling" Open to National Initiatives

In order to meet consumer expectation for more transparency and clarity in the labelling of foodstuffs, agri-food manufacturers have been developing (or at least reformulating) their food products, with the aim of making products and ingredients sound more natural, healthier, less processed and closer to those their customers could make at home.

A TREND TOWARDS CLEAN LABELS IS PUSHING MEMBER STATES TO DEFINE THE TERMINOLOGY IN THE ABSENCE OF EU DEFINITIONS.

This trend, in technical terms called "clean labelling", is neither defined, nor regulated by EU food law, leaving the field free for national initiatives. The concept of a clean label is difficult to define, even in common speech, as what a consumer considers to be a “clean label” food differs from one consumer to another.

Consequently, what is precisely included or excluded in “clean label” products varies from one industry to another – depending on the consumer target group.

It takes extremely varied forms, even if generally speaking, a “clean labelled food” is made from just a few ingredients and is free from food additives, artificial or synthetic ingredients.

At EU level, in the absence of specific rules, the general principles of food information as laid down in the Food Information to Consumer Regulation apply to clean labels.

In particular, Article 7 on fair information practices and Articles 36 and 37 on voluntary food information are relevant.

"It takes extremely varied forms, even if generally speaking, a “clean labelled food” is made from just a few ingredients and is free from food additives, artificial or synthetic ingredients."

According to these provisions, food information must be accurate, clear and easy to understand for the consumer and must not be misleading, “(…) particularly as to the characteristics of the food (…), by attributing the food effects or properties which it does not possess [or] (...) by suggesting that the food possesses special characteristics when in fact all similar food possess such characteristics, in particular by specifically emphasizing the presence or absence of certain ingredients and/or nutrient (…)“ .

For instance, a label of a fruit juice that emphasizes the absence of preservatives or colorings would be misleading, since the use of those food additives are not allowed, in any case, in fruit juices.

Thus, even if not legally defined, the “clean label” trend is not out of the scope of the law and improper uses can be punished, based on general principles of EU food law.

However, some Member States seem to consider those rules to be insufficient and want to go further by trying to define this multi-faced trend. Belgium, at the forefront of this process, is currently preparing a circular which defines a “clean label” as “…a label that does not include nor contain E-number or legal name of food additives”.

The ambition of this legal definition is to systematically cover situations where certain additives are replaced by more traditional ingredients, often produced by simple traditional processes (extraction, fermentation, etc.), which have interesting conservative, structuring or other technological properties. In doing this, the Belgian authorities stigmatize this practice per se, since it reproaches these buffered vinegars, vegetable extracts and other flavourings, described as "clean label ingredients", to give a natural impression of the end product.

"As long as the EU general principles seem sufficient to regulate this trend, a general position based on such national initiatives appears extremely complex, and must remain limited."

But in practice, the final product can indeed be considered "more natural": the use of chemical and complex substances is limited, in favor of ingredients of natural origin, obtained from commonly consumed ingredients, without losing their technological properties.

On top of that, these "functional" ingredients are brought to the attention of the consumers, since they remain indicated in the list of ingredients, according to the rules defined by the FIC regulation.

Unfortunately, this very strict position taken by Belgium seems to echo the statement of the Standing Committee on Plants, Animals, Food and Feed of the European Commission (SCOPAFF) of 17 September 2018.

This statement, concerning plant extracts rich in components with a technological function, established a systematic presumption of deliberate use of food additives, as soon as a plant extract reaches a level of constituents (or precursors) capable of performing a technological function in the foods to which it is added.

However, the exercise of a technological function in the final food is only one of the three cumulative conditions imposed by the legal definition of a food additive. Each use of so-called "functional" ingredients must be assessed on a case-by-case basis to determine their regulatory status, i.e. : food additive or common "functional" ingredient.

As long as the EU general principles seem sufficient to regulate this trend, a general position based on such national initiatives appears extremely complex, and must remain limited.

 

© 2019 Keller and Heckman LLP

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About this Author

Katia Merten-Lentz, Keller Heckman Law Firm, Brussels, Paris, European food, agriculture law
Partner

 

Katia Merten-Lentz, partner resident in the Firm’s Brussels and Paris offices, is a leading practitioner in European food, feed, and agricultural law. Her practice also extends to Environmental Law, Biotechnologies (new breeding technologies) and Cosmetics Law.

Ms. Merten-Lentz assists clients throughout the food chain with issues ranging from marketing (food labeling, health and nutrition claims, organic labels etc.) to innovation (nanomaterials, genetically modified organisms, novel foods). She also helps clients in the food and feed area obtaining European authorization...

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