Free-from claims – e.g., ‘palm oil-free,’ ‘salt-free,’ ‘sugar-free‘ – are back in the crosshairs of Italian Euro-palmers serving Big Food, Ferrero presumably.
Moreover, the EU framework of fair food information practices and nutrition claims is already adequate to protect consumers, without the need for new rules.
Rather, member states must ensure adequate public controls on labels and advertising. And this is the most serious deficiency, even in Italy. An in-depth study to follow.
1) Free from, parliamentary question
Member of the European Parliament Aldo Patriciello (Forza Italia, EPP Group)-in question 31.3.22 to the European Commission-noted the presence of free-from statements on an increasing number of food labels. (1) ‘Such “without” labels should inform consumers about the absence of an ingredient for environmental or health reasons, such as parabens.’
A grotesque example, since parabens are used in cosmetics but not in food as well. However, Hon. Patriciello fulfilled the lobbyists’ mandate by asserting that ‘”without” labeling is increasingly motivated by marketing considerations based on public perception of ingredients, e.g. salt, sugar or palm oil, regardless of the properties of their substitutes.’ (1)
1.1) ‘Palm oil-free‘, ‘salt-free‘, ‘sugar-free‘, misleading news?
The Euro-palmers thus theorized a hypothetical‘misleading use of labels such as the ‘without…’ label, often used to imply that the product is better environmentally or health-wise because of the absence of an ingredient.’ As is often true. But according to him, and his principals, ‘evidence about such comparative benefits‘ would be needed. And he would like the European Commission to introduce new rules.
Two other Forza Italia Euro-palmarians, Alberto Cirio and Fulvio Martusciello, had already distinguished themselves by their clumsy attempt to ban voluntary free-from claims in 2018. Through an amendment to the annual competitiveness report, Cirio and Martusciello had tried to introduce in the reg. EU 1169/11 the prohibition of claims such as ‘palm oil-free‘ and ‘GMO-free‘. (2) Failed missions.
2) Free from. The rules in force
The use of free from-that is, voluntary claims about the absence of nutrients, micronutrients and certain ingredients or substances-on food labels and advertisements is subject to a number of established rules in European law, as noted above. (3)
The analysis must start by verifying the existence of appropriate regulations, either horizontal (i.e., applicable to the generality of foods) or vertical (i.e., referring to individual supply chains or product categories). Maintaining attention to the hierarchy of sources of law and the principle of specialty (4,5).
2.1) EC Reg. 1924/06. ‘Sugar free‘, ‘no added sugars‘.
Reg. EC 1924/06, c.d. Nutrition and Health Claims Regulation, sets out in the Annex an exhaustive list of only those nutrition claims that are allowed on food labels and advertisements, and their conditions:
– ‘sugar-free‘ and any other claims of equal meaning are allowed ‘only if the product contains no more than 0.5 g of sugar per 100 g or 100 ml‘
– ‘No added sugars‘, on the other hand, is a nutritional claim allowed only ‘Whether the product contains no added mono- or disaccharides or any other food products used for their sweetening properties. If the food naturally contains sugars, the following statement should appear on the label: “naturally contains sugars”‘. (6)
2.2) EC Reg. 1924/06. ‘Withoutsalt‘, ‘without added salt‘.
‘Sodium-free, salt-free. ‘A claim that a food is sodium-free or salt-free, and any other claim likely to have the same meaning for the consumer, may only be made where the product contains no more than 0.005 g of sodium, or an equivalent value of salt, per 100 g‘ (EC reg. 1924/06, Annex).
‘No sodium/added salt‘. This ‘free from claim‘ is allowed ‘Only when the product contains no added sodium/salt or any other ingredient containing added sodium/salt and the sodium content of the product does not exceed 0.12 g, or the equivalent value of salt, per 100 g or 100 ml‘ (reg. EU 1047/2012, amending the Annex of reg. EC 1924/06).
2.3) ‘No added salt (or sodium)‘, the reasons of the European legislator
The nutrition claim ‘no added salt (or sodium)‘ was introduced to ‘encourage such innovation from a healthperspective’ and ‘enable producers to inform consumers of this specific aspect of the production process‘ (EU reg. 1047/2012, recital 3).
The ‘free from added salt‘ – like the other nutrition claims mentioned – was therefore considered by the European legislator to be relevant and useful news to encourage healthy consumption choices. Taking into account the serious diseases associated with excessive salt consumption, which in Europe is double the threshold indicated by WHO, and the ‘hidden salt’ even in breakfast ‘cereals’.
2.4) ‘Gluten-free‘, ‘lactose-free‘
‘Gluten-free‘ is a free-from claim subject to special rules, as noted. (7) This wording is sometimes misused with unacceptable deception to consumers, as also evidenced in the cases of tea drinks. (8)
‘Lactose-free‘ is undoubtedly a useful indication for people who are intolerant to it, although the European legislature has not yet established uniform rules in this regard. (9) Therefore, the general criteria below should be applied.
2.5) Other free from
Other ‘freefrom’ claims are subject to the general criteria of fair information practices. The information must be truthful, therefore demonstrable, clear to the target consumer, without attributing to the food characteristics instead common to other products in the same category. (10)
Transparency and non-ambiguity of optional information also involves attention to distinguishing product characteristics in light of applicable vertical regulations. Some examples:
– a product claimed as ‘GMO-free‘ cannot benefit from the tolerance on cross-contamination by GMOs (0.9%) established by reg. EC 1829/03,
– ‘without artificial additives/colors/preservatives‘ is not permissible wording because reg. EC 1333/08 does not provide for such a category,
– ‘Pesticide residue-free‘ is a free-from claim , which in turn requires consistency and demonstration, as noted. (11)
3) European Commission, no new rule in sight on free from
The European Commission, in its response 12.5.22 to the parliamentary question under consideration, referred to the regulation of nutrition claims in Reg. EC 1924/2006. As well as reiterating that free from, like all ‘food information should not mislead, particularly by suggesting that a food possesses particular characteristics, when in fact all similar foods possess the same characteristics‘ (EU reg. 1169/11, Article 7.1.c). (12)
Competent national authorities are responsible for the proper implementation and enforcement of the relevant EU standards, and in this function they are required to evaluate the claims on a case-by-case basis.
In light of the above, the Commission does not consider it necessary to revise the rules of the FIC regulation applicable to “without” claims in the context of the ongoing revision of the FIC regulation, which will focus on the labeling initiatives announced in the
Farm to Fork
.
#freefrom #junkfood, #sdg3
Dario Dongo
Notes
(1) European Parliament. Question 31.3.22 by Aldo Patriciello (EPP) to the European Commission (E-001313/2022). https://www.europarl.europa.eu/doceo/document/E-9-2022-001313_IT.html
(2) Dario Dongo. Palm oil-free, funny mystery in Strasbourg. GIFT (Great Italian Food Trade). 25.2.18, https://www.greatitalianfoodtrade.it/consum-attori/senza-olio-di-palma-mistero-buffo-a-strasburgo
(3) Dario Dongo. ‘Free from’ in labeling, The ABC. GIFT(Great Italian Food Trade). 2/24/18, https://www.greatitalianfoodtrade.it/etichette/free-from-in-etichetta-l-abc
(4) In the hierarchy of sources, EU law has supra-constitutional rank. It follows that in case of apparent conflict of rules between EU rules and national provisions, the former will always prevail. Recalling also that national technical standards not notified to Brussels under EU dir. 2015/1535 (i.e., EU reg. 1169/11, as specifically pertains to food information) are unconstitutional (for violation of EU law) and unenforceable, according to unambiguous case law of the Court of Justice
(5) The principle of specialty follows the ancient brocardo lex specialis derogat legi generali. Accordingly, whenever a case falls within the scope of a specific regulation (e.g., Nutrition and Health Claims Regulation, reg. EC 1924/06), the relevant rules take precedence over general rules (e.g., Food Information Regulation, reg. EU 1169/11)
(6) Dario Dongo. ABC nutritional claims. GIFT(Great Italian Food Trade). 5/26/18, https://www.greatitalianfoodtrade.it/etichette/abc-indicazioni-nutrizionali
(7) Dario Dongo. Gluten-free foods and the Spiga Barrata brand. GIFT (Great Italian Food Trade). 4/28/22, https://www.greatitalianfoodtrade.it/etichette/alimenti-senza-glutine-e-marchio-spiga-barrata
(8) Dario Dongo. Gluten-free tea? GIFT(Great Italian Food Trade). 12/22/17, https://www.greatitalianfoodtrade.it/etichette/tè-senza-glutine
(9) Dario Dongo. Lactose-free, ABC. GIFT (Great Italian Food Trade). 11/19/18, https://www.greatitalianfoodtrade.it/etichette/senza-lattosio-abc
(10) V. reg. EU 1169/11, Articles 7 and 36. Dir. 2005/29/EC, implemented in Italy by the Consumer Code (Legislative Decree 206/05 as amended)
(11) Dario Dongo. Glyphosate-free, zero residues, values and rules. GIFT (Great Italian Food Trade). 10.11.18, https://www.greatitalianfoodtrade.it/etichette/senza-glifosate-residui-zero-valori-e-regole
(12) European Commission. Response 12.5.22 by Stella Kyriakides Commissioner to parliamentary question E-001313/2022. https://www.europarl.europa.eu/doceo/document/E-9-2022-001313-ASW_IT.html
Dario Dongo, lawyer and journalist, PhD in international food law, founder of WIISE (FARE - GIFT - Food Times) and Égalité.
