On March 8, 2023, a proposal to amend Food Information Regulation (EU) No 1169/2011 – in the part pertaining to the ‘best before‘ (or minimum shelf life, TMC) – was discussed in Brussels with the idea of reducing food waste of non-perishable products. However, the proposed solution does not appear consistent with the shared goals. Details and brief notes to follow.
1) Food Information Regulation, the false promises of reform.
European Commissioner for Health and Food Safety Stella Kyriakides has repeatedly announced a series of Food Information Regulation reforms. And the European Commission’s DG SANTE has indeed organized two public consultations (1,2), for the revision of reg. EU 1169/11 on:
- Front-of-Pack Nutrition Labelling (FOPNL). The long-awaited introduction of the NutriScore for public health needs, promised by the end of 2022, has actually been postponed until the next legislature (3,4),
- labeling of the origin of products and/or provenance of their ingredients, for the enhancement of local food chains. No further news about this,
- modification of the wording ‘best before‘ (in Italy, ‘to be consumed preferably by‘). And it is only this amendment that is being brought forward, precisely because it is the only one that does not disturb the Corporation to which the Commission is subservient.
2) ‘Use by‘, ‘best before‘
Reg. EU 1169/11 indicates-among the mandatory information to be provided on the label of packaged food products-‘date marking‘. (5) To be expressed, as appropriate, as:
- ‘Useby’ (‘to be consumed by‘). The expiration date should be applied on the labels of microbiologically rapidly perishable foods. In fact, every product subject to the cold chain (‘cold chain‘),
- ‘Best before‘ (‘to be consumed by‘). Instead, the minimum shelf life is applied on all non-perishable products. Stable, sometimes dry foods, including those subjected to the frost chain (‘ice chain‘. E.g., frozen products, frozen). (6)
3) The great enigma
DG SANTE used at least three public procurements between 2015 and 2021 to understand whether European consumers are able to distinguish between the concepts of ‘best before‘ and ‘use by‘ (7,8,9). Rivers of words were spent on semantic and socio-anthropological analysis, with further collection of feedback from 32,000 consumers. (10)
The great conundrum is whether there is a more effective way to express the concept of ‘best before‘ (‘to be consumed preferably by‘). To enable consumers to understand that a package of pasta (or breakfast cereal, oil, honey, spices, etc.) can also be consumed later. And thus reduce food waste.
4) Changing labels to reduce food waste? The European Commission’s proposal
The proposed amendment to reg. EU 1169/11 boils down to adding to the mandatory wording ‘best before…’ the phrase – also mandatory – ‘often good after‘.
It is proposed to use the mandatory wording provided for each of the official languages (see. table. In Italian, ‘To be consumed preferably by ….. Often good beyond‘).
The only certainty of such an assumption, however, is, in the humble opinion of the writer, to create confusion among consumers, operators in the agrifood supply chains, and control authorities.
4.1) Technical and food safety issues.
Can the proposed statement really apply to all foods that are not microbiologically rapidly perishable? Or, more likely, does it apply to some categories of products (e.g., pasta) but not to others that are instead subject to progressive spoilage due to natural phenomena and known in the scientific literature (e.g., oxidation of oils)?
Food safety must also be considered in relation to Food Contact Materials. Has anyone considered the durability limits of food contact materials (MOCAs), of particular relevance in the case of migration of hazardous substances from plastics, (11) recycled plastics (12) and bioplastics?
4.2) Legal issues
At the legal level, who assumes the responsibilities of an ex lege-imposed wording? The European Commission perhaps? How can the operator responsible for the information on the label be held accountable for any nonconformity of the product after the time limit defined by it as a result of appropriate shelf-life testing?
Who can guarantee a priori-without being able to check actual compliance with special storage conditions (e.g., ‘storeaway from sources of light and heat‘) that ‘thick‘ products maintain the same nutritional, organoleptic properties? The issue is also relevant from the point of view of whether products meet the requirements of industry regulations (e.g., olive oils) and the quantities declared on the label (13,14).
4.3) Practical issues
From theory to practice, how can retailers-not only large retailers, but also small neighborhood stores-and consumers interpret the vague concept of ‘often‘ (‘good even beyond‘)?
In any case, it is essential to organize public information programs, the effectiveness of which depends on understanding the basic concept(best before).
Adding equivocal wording on the labels of all products does not help consumers understand the value of proper food storage, let alone distinguish between different foods with potential food safety risks (e.g., eggs). (15)
5) Use-by date, expiration date. The real issues to be resolved
The first, real issue that needs to be resolved-for a reform of the Food Information Regulation that is useful in reducing food waste-is the absolute presumption of riskiness of food subject to ause-by date from its next day.
The presumption iuris et de iure inopinently introduced in reg. EU 1169/11, as this writer has repeatedly denounced (5,16), is blatantly at odds with the risk analysis criterion that presides over European food law.
Another issue that needs to be addressed is national rules that cause food waste through ex lege imposition of pre-determined ‘best before‘ and ‘use by‘ contrary to EU law. The writer has complained to the Commission and the European Ombudsman about the Italian law causing unacceptable milk waste, without receiving feedback (17,18,19,20).
AAA common sense wanted.
Dario Dongo
Notes
(1) Dario Dongo. Reg. EU 1169/11, reform on the horizon. GIFT (Great Italian Food Trade). 5.2.21
(2) Dario Dongo. Reform reg. EU 1169/11, public consultation. GIFT (Great Italian Food Trade). 16.1.22
(3) Dario Dongo. NutriScore and nutritional profiles, updates from Brussels. GIFT (Great Italian Food Trade). 10.5.21
(4) Marta Strinati, Dario Dongo. FOPNL, open letter to the European Commission. GIFT (Great Italian Food Trade). 25.12.22
(5) Dario Dongo. TMC and expiration date. GIFT (Great Italian Food Trade). 31.3.18
(6) TMC or expiration date and label storage mode of frozen foods. Lawyer Dario Dongo answers.. FARE (Food and Agriculture Requirements). 31.12.21
(7) Flash Eurobarometer 425. (2018). Food waste and date marking. https://data.europa.eu/data/datasets/s2095_425_eng?locale=en GESIS, Leibniz Institute for the Social Sciences
(8) European Commission, Directorate-General for Health and Food Safety (2018). Market study on date marking and other information provided on food labels and food waste prevention: final report https://data.europa.eu/doi/10.2875/808514
(9) Open Evidence, London School of Economics, Brainsigns, BDI (2021). Consumer research study to identify new ways of expressing date marking that meet consumers’ information needs whilst minimizing food waste https://food.ec.europa.eu/system/files/2022-02/fw_eu_actions_dm_20211130_report_1.pdf
(10) ‘Only 49.5 percent of respondents correctly interpreted the labels, and the difficulties in understanding them are much greater for ‘best before’ labels than for ‘use by,’ the Commission reports. However, it would be useful to check the context and how the questions were asked
(11) TMC on PET vinegar? Lawyer Dario Dongo answers.. FARE (Food and Agriculture Requirements). 19.3.19
(12) Marta Strinati. Recycled PET, more chemicals migrate from bottles to beverages. GIFT (Great Italian Food Trade). 21.3.22
(13) Dario Dongo, Giulia Pietrollini. Marketing of olive oils, reg. EU 2022/2104. GIFT (Great Italian Food Trade). 20.11.22
(14) Dario Dongo. Shelf-life, food security, and weight loss. An integrated approach. GIFT (Great Italian Food Trade). 17.8.20
(15) Maria Ada Marzano, Dario Dongo. Fresh eggs, ‘sell-by date’ extended from 21 to 28 days in EU. GIFT (Great Italian Food Trade). 15.1.23
(16) Dario Dongo. Expiration date and TMC, EFSA guidelines for reducing food waste. GIFT (Great Italian Food Trade). 20.12.20
(17) TMC and expiration date of milk? Clarification by lawyer Dario Dongo. FARE (Food and Agriculture Requirements). 18.3.18
(18) Dario Dongo. Food waste, our battle over fresh milk. GIFT (Great Italian Food Trade). 24.7.19
(19) Dario Dongo. Plant location, decrees of origin and expiration of milk, GIFT denounces the Commission to the European Ombudsman. GIFT (Great Italian Food Trade). 27.1.20
(20) Dario Dongo. Farm to fork, meat and dairy industries’ appeal to the European Commission. GIFT (Great Italian Food Trade). 5.3.20
Dario Dongo, lawyer and journalist, PhD in international food law, founder of WIISE (FARE - GIFT - Food Times) and Égalité.
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