The offering of food products via ecommerce must always come with the provision of mandatory information, including on the label, in the official language of the country of destination.
The European Commission, in its 11.6.21 answer to a parliamentary question, confirms what has already been clarified in the Food Information Regulation. (1) Neglecting, moreover, the possibility of attaching a package insert to the package.
The problem underlying the question, however, is broader. How can 290,000 SMEs, 99.2 percent of agribusiness production in the EU, apply such a varied and complex set of rules? The solution is around the corner, it just takes willpower.
Ecommerce, the language of mandatory label information
Question 3.5.21 — signed by Italian MEP Marco Dreosto, a member of the ENVI(Environment, Public Health and Food Safety) Commission in the European Parliament — concerns ‘prepacked foods offered for sale by means of distance communication techniques.’
Reg. EU 1169/11 provides in fact that ‘all mandatory particulars shall be available at the time of delivery,’ as well as before the choice of purchase, even in cases of distance selling of prepacked food (Article 14).
Many companies that ship their products to various member states, after all, do not always have products labeled in the language of the destination country.
Ecommerce, is a leaflet enough?
The Italian MEP therefore asked the European Commission to answer the following questions:
‘In case products labeled in a language other than that of the country of destination are delivered, can the ‘availability’ of information also be rendered only by means of a package leaflet/accompanying document, inserted in the packaging, containing all information in the language of the country of delivery?
Or should Article 12(2) of Regulation (EU) No. 1169/2011, under which ‘mandatory information on pre-packed foods appears directly on the packaging or on a label attached to it’? (Question E-001966/2021)
Country you go, language you apply
The answer offered on 11.6.21 by Health and Food Safety Commissioner Stella Kyriakides is as obvious as it is predictable. ‘In the case of prepackaged foods offered for sale by means of distance communication techniques, all mandatory particulars shall be available at the time of delivery’ (EU Reg. 1169/11, Article 14).
‘Article 15 further provides that.
– mandatory food information appears in a language easily understood by consumers in the member states where the food is marketed and that
– within their territory, the member states where the food is marketed may stipulate that the particulars be given in one or more of the official languages of the Union’. (EU reg. 1169/11, Article 15).
Ecommerce, label and/or package insert?
Mandatory information on prepackaged foods, she continues, ‘appears on the packaging or on a label attached to it.’ As it is indeed stated in Regulation (EU) 1169/11 itself, in Article 12.2.
‘In conclusion., for prepackaged foodstuffs offered for sale by means of distance communication techniques, all mandatory food information shall then be provided on the packaging or on a label attached to it in a language easily understood by consumers in the member state where the foodstuff is marketed.’
Labeling, a leaflet is enough
On closer inspection, it is sufficient to state the mandatory information about pre-packaged food products-in the official language applied by the member state of destination of the goods-on an accompanying sticker or leaflet. With the only precaution-in the case of compound foods that contain or may contain non-obvious allergens-to attach the sheet to the individual package.
‘Labeling’ is in fact defined as ‘any mention, indication, trademark or trade mark, picture or symbol referring to a food and appearing on any packaging, document, notice, label, tape or band accompanying or referring to that food‘ (EU reg. 1169/11, Article 2.2.j).
Ecommerce, information at a distance
The real obstacle, for small operators in the food supply chain who wish to sell their products through ecommerce, is the requirement to make the mandatory information ‘available before the conclusion of the purchase, on the medium of distance selling.’ And in this case, where the offer is not limited to individual EU countries, the official languages to be applied are 23. (2)
After all, the language requirement is essential for proper consumer information, and yet it is often lacking. With the paradox that the first to violate such rules are the giants. In online sales, as Amazon teaches, but also in the latest generation of food delivery (3,4). As well as in offline sales, even in pharmacies as seen recently in the Foodspring case. (5)
Single market, SMEs and microenterprises. The problem to be solved
99.2% of food processing enterprises are SMEs, about 290,000 enterprises, which express 58.1% of employment, 42.8% of value added and 42.8% of turnover. As many as 79.8 percent of enterprises in the sector are even microenterprises. That is, from organizations with turnover of less than 2 million euros and fewer than 9 employees, which in turn express 14.2 percent of employment, 6.8 percent of value added, and 5.3 percent of turnover in the Old Continent’s leading manufacturing sector (Food Drink Europe, 2017 data).
The small operators on whom our food, the preservation of traditions and rural landscapes depend need clear instructions on any mandatory information and optional information allowed for placing various food products in individual territories. Such an opportunity has been offered, only in words, with the Food Labeling Information System (FLIS). Which, however, turned out to be a FLOP, a rough copy of a database of EU rules only, not national rules as well, totally unfit for purpose. (6)
Consumer information, we need a comprehensive and interactive database
‘Under the coordination ofthe European Commission, both the common rules (EEC, EC, EU) and those that belong to the so-called concurrent legislation, of state and local level (regions, provinces, municipalities), where applicable, must be collected.’ (7)
This work is indispensable to millions of operators in the EU, from farm to fork, and needs to be developed by competent contractors. Member states must collect consolidated texts of local rules additional to the common law, in English as well as in their own language. With the burden of keeping databases of national standards up-to-date under penalty of inapplicability. AI(Artificial Intelligence) solutions, already adopted in every language translation app, can be usefully applied to regulatory texts only.
Dario Dongo
Notes
(1) Dario Dongo. Ecommerce, what responsibilities? GIFT(Great Italian Food Trade). 2/24/18, https://www.greatitalianfoodtrade.it/consum-attori/ecommerce-quali-responsabilità
(2) E-commerce, which news in which languages? Lawyer Dario Dongo answers.. FARE(Food and Agriculture Requirements). 14.2.18, https://www.foodagriculturerequirements.com/archivio-notizie/domande-e-risposte/e-commerce-quali-notizie-in-quali-lingue-risponde-l-avvocato-dario-dongo
(3) Dario Dongo. Amazon, new complaints to Antitrust and ICQRF. GIFT(Great Italian Food Trade). 7.2.19, https://www.greatitalianfoodtrade.it/consum-attori/amazon-nuove-denunce-a-antitrust-e-icqrf
(4) Marta Strinati. Gorillas and dark stores, the new frontier of distribution. GIFT(Great Italian Food Trade). 17.6.21, https://www.greatitalianfoodtrade.it/mercati/gorillas-e-dark-store-la-nuova-frontiera-della-distribuzione
(5) Dario Dongo. Foodspring, paleo – bars and outlaw labels. GIFT(Great Italian Food Trade). 2.4.21, https://www.greatitalianfoodtrade.it/consum-attori/foodspring-paleo-barrette-ed-etichette-fuorilegge
(6) Dario Dongo. FLIS – FLOP. European food labeling database disappoints expectations. FT (Food Times). 13.1.21, https://www.greatitalianfoodtrade.it/etichette/flis-flop-il-database-europeo-sull-etichettatura-degli-alimenti-delude-le-aspettative
(7) Dario Dongo. Labels and advertising, principles and rules. Edagricole-Il Sole 24 Ore (Bologna, 2004)
Dario Dongo, lawyer and journalist, PhD in international food law, founder of WIISE (FARE - GIFT - Food Times) and Égalité.
