Thought for Food Blog

Is Food Labelling the Best Communication Tool for Protecting Consumers?

History of food labelling

Food labelling as we know it today dates back to the 19th century[1]. Interestingly, it was initially developed as a '...logistical aid to the enforcement of adulteration laws and the levying of duties and taxes on bread'[2] rather than to protect consumers.

It was concerns over chemical safety during World War II[3] that triggered the enactment of The Defence (Sale of Food) Regulations 1943[4] to protect consumers from misleading labels as to the nature, substance or quality of food[5].

Then, in 1973, the European Economic Community (EEC) membership brought the European Commission (EC) Labelling Directive 79/112/EEC[6] into the UK, strengthening the ban on misleading presentation and claims on food products. This evolved, through various iterations, into Directive 2000/13/EC.

Food Packaging | IFIS Publishing

Since then, shopping habits and customer interest in diet and lifestyle[7] have changed considerably, leading to consumerism and fierce competitive markets. This has made it more important than ever for food information to be clear and correct, to help consumers make informed purchasing choices and be protected from unfair commercial practices. For this reason, the European Union (EU) has been under enormous pressure to modernise and improve consumer laws.

 

Who is the 'average' EU consumer?

In the landmark Gut Springenheide[8] case, it was held that, in order to make a decision, national courts must take into account the presumed expectations of an average consumer '...who is reasonably well-informed and reasonably observant and circumspect.'

 In May 2012, the European Commission communicated their vision of the European ‘consumer’:

'...Empowered consumers who can rely on a robust framework ensuring their safety, information, education, rights, means of redress and enforcement can actively participate in the market and make it work for them by exercising their power of choice and by having their rights properly enforced.'[66]

The Directive stressed that the prime consideration should be the need to provide the

'...exact nature and characteristics of the product which enables the consumer to make his choice in full knowledge of the facts.'

As a market participant[9], the consumer ‘is assumed to be the best judge of his own interests and to act rationally’[10]capable of responding to product information and reacting to misleading advertising. It also reflects the European Court of Justice's view that appropriate labelling can protect consumers against deception.[11]

There are, however, other fields of consumer law such as European Regulatory Private Law (ERPL), contract and Tort laws, based on the idea that consumers need to be protected.[12]

 

Protecting consumers from what?

Advertising

Nowadays, it is almost impossible to visualise a world without commercial marketing. Social media is progressing at such a fast pace that online marketing is taking over as the largest channel for advertising.[13] It is also estimated that the average British viewer is now exposed to at least 48 TV commercials a day.[14] With such a vast amount of information bombarding us, it is given that advertising has the power to affect our choices as consumers.[15][16]

Although product claims have the potential to increase consumer awareness about food safety and diet-related issues[17], there are also concerns that an increasingly competitive market drives businesses to make misleading claims[18] in order to influence ‘vulnerable consumers’[19], or specific population groups. For example, food advertisers recognise the effectiveness of gender targeting as women are usually more responsive to healthy food marketing[20] and deceptive weight-loss advertising.[21] 

So, assuming that consumers are susceptible to the power of advertising, should it be expected that they take mere 'puffery'[22] seriously? Would the average consumer expect to sprout actual wings after consuming a can of Red Bull?

With some advertising clearly designed for entertainment value, rather than to be taken literally, it can be very difficult to draw a line as to the level of protection necessary.[23]

 

Is food label information effective at informing and protecting consumers?

The right to information is one of the most important foundations for consumer protection,[24] and over the years food labels have become a useful tool for helping consumers make informed choices[25] and use food safely[26], especially when confronted with an enormous amount of food products. But is it really feasible to assume that consumers use or even understand all the information printed on food labels?

The amount of product-related information on a food pack can be overwhelming even for 'well-informed' consumers  just look at the snack stashed in your desk!

Product details such as the nutrition declaration, list of ingredients, additives, allergens, allergen cross-contamination, ‘use by’ and ‘best before’ dates, price, claims, etc. can lead to mental overload and confusion, and consequently to a refusal to deal with the information at hand.[27]

Indeed, relatively little is known about the type of information that consumers seek and process[28], and studies also suggest that newly added food information does not necessarily reach all consumers.[29] The EC recognised the need for a new regulation capable of covering not only labelling but also advertising and presentation of foodstuffs[30]  Regulation (EU) No. 1169/2011 on the provision of food information to consumers (FIC).

European Union (EU) Food Law | IFIS Publishing

 

The aim of the FIC

The FIC was published in 2011 and entered into force on 13th December 2014, with the main objective to '...pursue a high level of protection of consumers’ health and interests'[31] as well as to modernise[32] and harmonise labelling requirements across the EU.[33] It has been described as one of the most important and far-reaching changes to food labelling in the EU for the past 30 years.[34]

One of the key elements of the FIC is that labelling controls changed from a 'directive' (2000/13/EC) to a 'regulation', which meant that Member States (MSs) were not required to transpose the new FIC rules into specific national legislation. Instead, the FIC became applicable on the same date and format in all 28 MSs, at all stages of the food chain, where business activities concern the provision of food information to consumers.

This included catering services provided on public transport (e.g. aeroplanes, railways and cruises) when the departure takes place within the EU[35] and businesses involved in distance selling (e.g. takeaways).[36] This aims to protect consumers, especially allergenic individuals.

However, it may be naïve of policymakers to assume that the majority of EU ‘average consumers’ read[67] or understand food labelling information[68]; or even more importantly, that the level and amount of information provided to consumers is faultless.[69]

Interestingly, and contrary to the Nutrition and Health Claims Regulation[70] and the Unfair Commercial Practices Directive[71], the FIC does not make any reference to the concept of the aforementioned empowered consumers.[72] The FIC adopts a more 'paternalistic' approach, pursuing 'a high level of protection of consumers’ health and interests' by placing more emphasis on providing 'easily understood', 'easily accessible' and 'easily recognisable' information.[73]

This is demonstrated by the idea of improving dietary habits by making nutrition information mandatory, or even the more drastic 'nanny state' approach taken by the UK Government in introducing a new 'sugar tax' on soft sugary drinks.[74]

These approaches lead us to question whether the role of food information law is to protect the rational or the naïve consumer. Are ‘real’ consumers capable of making gainful use of the information available to them?[75]

 

FIC Regulation Vs. Labelling Directive

The majority of the 'new' FIC rules apply to pre-packed foods, but the most far-reaching changes are those relating to allergen and nutrition labelling.

Allergen Labelling

Although the main requirements did not change, the labelling format has been standardised so that consumers can identify allergenic ingredients consistently across the EU. Allergens must be emphasised in the ingredients list only, and not repeated elsewhere on the label. Allergen advice boxes can only be used to ‘sign-post’ to the ingredients list.

More significant, however, is the fact that allergen information is now also mandatory for foods sold loose (e.g. deli counters, food markets, etc.).

Nutrition Declaration

Nutrition information on food labels is considered an important method for encouraging consumers to make healthier food choices[37], so it is not surprising that the new rules on nutrition labelling are by far the most comprehensive.

At present, unless a nutrition or health claim is made, the provision of nutrition information for the majority of prepacked foods remains voluntary until 13th December 2016[38]. However, food business operators (FBOs) which are already voluntarily providing nutrition tables must comply with the nutrition labelling provisions laid down in Arts. 29-35 of the FIC.

What effect does this have?

Labelling changes put significant pressure on businesses, and research has found that consumers pay little attention to nutrition information[39], suggesting that increasing it may not be the answer. Price, taste, convenience and shopping habits may be greater influencers than nutrition information when making routine food decisions.[40]

Even though the FIC introduced significant changes to food labelling, in reality, it is no perfect substitute for the repealed Directive. Many provisions have been transposed from existing pieces of legislation[41], and some aspects of the FIC remain unclear and undecided, preventing the FIC from being absolute. This means that food information legislature will not decrease any time soon[42] and this impasse leaves room for regulatory uncertainties, hindering the clarity and harmonisation of the FIC in its main purpose of protecting consumers.

For details on key labelling changes follow the link: https://www.food.gov.uk/enforcement/regulation/fir/labelling

 

Challenges and limitations of harmonising EU food labelling information

At a European level, consumer policies have historically been regulated through directives, which, combined with mutual recognition of national standards, have given MSs cultural flexibility[43] and the capacity to maintain a reasonable level of consumer protection in their national laws.[44] Effectively, directives allow MSs to set higher levels of protection than the original standard set by the EU. However, this can result in inconsistencies in consumer protection across the EU[45] and create barriers to trade.

Some examples from the UK include:

  • National rules on bread and flour[46] which lay down specific compositional standards to restore certain vitamins and minerals to wheat flour manufactured and sold in the UK
  • Products containing meat etc. regulations[47] that extended the requirements of Directive 2001/101/EC[48], setting minimum meat contents for products using certain names, such as ‘sausage’, ‘burger’ and ‘pie’

However, the EU is gradually shifting from directives to regulations[49], which will provide greater harmonisation and simpler and consistent legal frameworks[50]  this is certainly a strong point of the FIC.

International Trade Regulations | IFIS Publishing

 

Removing country-specific standards - the disadvantages

As well as protect consumers from misleading information, there are arguments that country-specific compositional and labelling standards are necessary to ensure market competition and maintain quality standards.[51] With the move towards a fully EU-harmonised labelling system, it is foreseeable that numerous standards used by individual MSs will eventually disappear.

Without compositional controls, food businesses will have the freedom to reformulate products, and there is concern that this could lead to some producers reducing a product’s commercial value and continuing to use its legal name. For example, Cheddar cheese is now subject to a sunset clause in the UK, so in less than three years it is likely that the water compositional requirements for territorial cheeses laid down in the preceding Food Labelling Regulation 1996[52] will be revoked.

This is concerning for EU consumers who retain a strong appreciation of tradition, and there is often a strong correlation between high-quality foods and the use of unchanged recipes over generations.[53]

Often, providing that FBOs act in ‘good faith’ and retain manufacturing practices close to the prescribed compositional standards, consumers may acknowledge these as ‘customary names’. For instance, most mayonnaise manufacturers still closely follow the compositional standards of the long gone Salad Cream Regulations 1966.[54] 

Removing country-specific standards - the advantages

Despite its benefits for consumers, some argue that strict compositional controls

'...prevent the development of new products and [are] therefore an obstacle to innovation and commercial flexibility; and that the tastes and preferences of consumers should not be a matter for regulation.'[55]

As such, some may consider the removal of country-specific standards to be a positive move.

Fully harmonised standards have the potential to reduce the ‘overlegislation’ burden of national laws on consumer protection[56]; however, at times, it seems that the FIC contradicts this principle as it was designed to be adaptable to changing consumer information needs.[57]. Recital 49 also states that the FIC:

'...should not prevent Member States from adopting national measures concerning matters not specifically harmonised by this Regulation.'

Even though notification procedures are required[58], it gives individual MSs the freedom to adopt any extra labelling requirements[59] justified by the protection of consumers and public health[60]  the UK’s traffic light nutrition labelling scheme is a good example of this.

The challenges

Inevitably, however, no major change comes without a big debate!

The practicalities of aligning EU and domestic labelling information are challenging for some key reasons:

  • All EU countries would need to agree and adopt the same notion of the ‘consumer’
  • It assumes that all MSs are equipped to adopt full harmonisation via regulations

These assumptions have been described by some academics[61] as too optimistic, as they require all 28 EU countries to reach a compromise on the exact level of consumer protection, especially when factoring in cultural and linguistic obstacles.

There are also monetary concerns.[62] In the UK, Defra estimated that the re-labelling of food products in line with the FIC would cost the industry an average of £3.18 million per annum.[63] Consequently, the food industry will have no choice but to levy this cost onto the consumer.[64] Could this be the beginning of complete consumer empowerment then?

For these reasons, harmonisation of European labelling rules is likely to be a gradual rather than revolutionary process.[65]

 

So, is the FIC an effective tool to protect consumers?

EU food law has gradually developed from being market-orientated to focusing on consumer protection[76] through strong legislation frameworks. However, the FIC will only be successful in this if it provides a uniform and commonly applicable set of information to consumers across Europe.

When research suggests that newly added information provided on food labels does not necessarily reach, or is utilised by, all consumers[77], the FIC may offer only limited value-for-money.[78] Ultimately, it is not about how much information is provided but rather how appropriate and meaningful the information actually is.[79]

 


 

 

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[1] A. Turner, ‘The development of food labelling regulations in the UK’ (2007) 32 Nutrition Bulletin 161

[2] M. Moore, ‘Food labelling Regulation: A historical and comparative survey’ (2001) https://dash.harvard.edu/bitstream/handle/1/8965597/MooreM.pdf?sequence=1 accessed 10th December 2015

[3] Gerry Danby, ‘History of food law: The 20th century’ (16th September 2014) http://www.artisanfoodlaw.co.uk/history-of-food-law/20th-century/history-of-food-law-20th-century accessed 2nd December 2014

[4] S.R. & O. 1943:1553

[5] Gerry Danby, ‘History of food law: The 20th century’ (16th September 2014) http://www.artisanfoodlaw.co.uk/history-of-food-law/20th-century/history-of-food-law-20th-century accessed 2nd December 2014

[6] Council Directive 79/112/EEC of 18th December 1978 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs for sale to the ultimate consumer (OJ L33/1)

[7] M. Moore, ‘Food labelling Regulation: A historical and comparative survey’ (2001) https://dash.harvard.edu/bitstream/handle/1/8965597/MooreM.pdf?sequence=1 accessed 10th December 2015

[8] Case C-210/96, Gut Springenheide and Tusky v Oberkreisdirektor des Kreises Steinfurt [1998] ECR I-4657

[9] Tood A. Lone, Dan Pence, Annette E. Levi, Kenny K. Chan and Stephanie Bianco-Simeral, 2009, p.90

[10] Iain Ramsay, Consumer Law and Policy: text and materials on regulating consumer markets 3rd edition, Hart Publishing Ltd, 2012, p.47

[11] Andreas Meisterernst, ‘A new benchmark for misleading advertising’ (2013) 2 European Food and Feed Law Review 92

[12] Vanessa Mak, ‘Standards of Protection: In search of the ‘average consumer’ of EU Law in the proposal for a Consumer Rights Directive’ (2011) 19:1 European Review of Private Law 25

[13] Eleanor Winpenny, Theresa Marteau and Ellen Nolte, ‘Youth exposure to online alcohol advertising in the UK: an analysis of social media websites’ (2012) 66(Suppl 1) Journal of Epidemiology and Community Health A1

[14] Justin Lewis, ‘The power of advertising\; a threat to our way of life’ OurKingdom (London, 18th June 2011) http://www.opendemocracy.net/ourkingdom/justin-lewis/power-of-advertising-threat-to-our-way-of-life accessed 1st June 2014

[15] Iain Ramsay, ‘Advertising, taste construction, and the search for enlightened policy: a critique’ (1991) 29(3) Osgoode Hall Law Journal 573

[16] David Oughton and John Lowry, Textbook on consumer law 2nd edition, Oxford University Press, 2000, p.487

[17] Pauline M. Ippolito and Alan D. Mathios, ‘Health claims in food marketing: Evidence on knowledge and behaviour in the cereal market’ (1991) 10(1) Journal of Public Policy and Marketing 28

[18] Peter Cartwright, Consumer Protection and the Criminal Law - Law, Theory and Policy in the UK, Cambridge University Press, 2001, p.32

[19] Lisa Waddington, ‘Vulnerable and confused: the protection of “vulnerable” consumers under EU law’ (2013) 38(6) European Law Review 765

[20] Tood A. Lone, Dan Pence, Annette E. Levi, Kenny K. Chan and Stephanie Bianco-Simeral, ‘Marketing healthy food to the least interested consumers’ (2009) 20 Journal of Foodservice 92

[21] Julie A. Pirsch, Stacy Landreth Grau and Michael Jay Polonsky, ‘Lose 30lbs in 30 days: assigning responsibility for deceptive advertising of weight-loss products’ (2013) 3(1) Journal of Social Marketing 65

[22] Lindsay E. Cohen, ‘Choice of a new generation: Can an advertisement create a binding contract, The’ (2000) 65 Missouri Law Review 565

[23] Willem H. van Boom and Anthony Ogus, ‘Introducing, defining and balancing ‘autonomy v. paternalism’’ (2010) 3(1) Erasmus Law Review 2

[24] Anna Mazurkiewicz-Pizlo and Beata Pachuca-Smulska, ‘Access to information as a determinant of the consumer behaviour at the food market’ (2012) 11(4) Oeconomia 35

[25] Ulrike Eberle, Achim Spiller, Tilman Becker, Alois Heissenhuber, Ingrid-Ute Leonhauser and Albert Sundrum, ‘Political strategy for food labelling’ (September 2011) http://www.bmel.de/SharedDocs/Downloads/EN/Ministry/Scientific_Advisory_Board-Food_Labelling.pdf?__blob=publicationFile accessed 13th December 2015

[26] Luis González Vaqué, ‘The new European Regulation on food labelling: Are we ready for the “D” day on 13th December 2014?’ (2013) 3 European Food and Feed Law Review 158

[27] Ulrike Eberle, Achim Spiller, Tilman Becker, Alois Heissenhuber, Ingrid-Ute Leonhauser and Albert Sundrum, ‘Political strategy for food labelling’ (September 2011) http://www.bmel.de/SharedDocs/Downloads/EN/Ministry/Scientific_Advisory_Board-Food_Labelling.pdf?__blob=publicationFile accessed 13th October 2014

[28] Robert Gaschler, Jutta Mata, Viola S. Stormer, Anja Kuhnel and Merim Bilalic, ‘Change detection for new food label’ (2010) 21 Food Quality and Preference 140

[29] Robert Gaschler, Jutta Mata, Viola S. Stormer, Anja Kuhnel and Merim Bilalic, 2010, p.147

[30] Andreas Meisterernst, ‘A new benchmark for misleading advertising’ (2013) 2 European Food and Feed Law Review 95

[31] Article 1 of Regulation (EU) No 1169/2011 (OJ L304/18)

[32] Recital 9 of Regulation (EU) No 1169/2011 (OJ L304/18)

[33] Recital 49 of Regulation (EU) No 1169/2011 (OJ L304/18)

[34] Food and Drink Industry Ireland, ‘Food and Drink Labelling: A practical guide for industry’ (2013) http://www.fdii.ie/Sectors/FDII/FDII.nsf/vPages/News_and_Events~Press_release_archive~guide-to-new-eu-food-labelling-rules-launched/$file/FDII%20Labelling%20Guide.pdf accessed 13th December 2015

[35] Article 1(3) of Regulation (EU) No 1169/2011 (OJ L304/18)

[36] Article 14 of Regulation (EU) No 1169/2011 (OJ L304/18)

[37] European Commission, ‘White Paper on a strategy for Europe on nutrition, overweight and obesity related health issues’ (30:5:07) COM (2007) 279 final

[38] Article 11(2) of Council Directive 90/496/EEC of 24 September 1990 on nutrition labelling for foodstuffs (OJ L276/40) 

[39] Klaus G. Grunert, Laura Fernández-Celemín, Josephine M. Wills, Stephan Storcksdieck genannt Bonsmann and Liliya Nureeva, ‘Use and understanding of nutrition information on food labels in six European countries’ (2010) 18(3) Journal of Public Health 261

[40] Stefan Storcksdieck Bonsmann and Josephine M. Wills, ‘Nutrition labelling to prevent obesity: Reviewing the evidence from Europe’ (2012) 1 Current Obesity Reports 138

[41] Harry J. Bremmers, ‘An integrated analysis of Food Information to Consumers: Problems, pitfalls, policies and progress’ (2012) Proceedings in Food System Dynamics 615

[42] Péter Dévényi, ‘The new Regulation on the provision of food information to consumers – Is new always better?’ (2011) 4 European Food and Feed Law Review 217

[43] Peter Rott, ‘Minimum harmonisation for the completion of the internal market? The example of Consumer Sales Law’ (2003) 40 Common Market Law Review 1119

[44] Geraint Howells and Christian Twigg-Flesner, ‘What sort of Europe do consumers want?’ (2005) 15(5) Consumer Policy Review 169

[45] Vanessa Mak, 2011, p.10

[46] The Bread and Flour Regulations 1998 (S.I. 1998/141 (as amended))

[47] The Meat Products Regulations 2014 (S.I. 2014/3001)

[48] Commission Directive 2001/101/EC of 26th November 2001 amending Directive 2000/13/EC of the European Parliament and of the Council on the approximation of the laws of Member States to the labelling, presentation and advertising of foodstuffs (OJ L310/19)

[49] Christian Twigg-Flesner, ‘Good-bye harmonisation by Directives, Hello cross-border only regulation? – A way forward for EU Consumer Contract Law’ (2001) 7(2) European Review of Contract Law 238

[50] Christian Twigg-Flesner, ‘A cross-border-only regulation for consumer transactions in the EU: A fresh approach to EU Consumer Law’, Springer, 2012, p.22

[51] Hans-Christoph von Heydebrand Lasa, ‘Free movement of foodstuffs, consumer protection and food standards in the European Community: has the Court of Justice got it wrong?’ (1991) 16 European Law Review 395

[52] Annex XI of The Food Labelling Regulations 1996 (S.I. 1996:1499)

[53] Jill J. McCluskey and Maria L. Loureiro, ‘Consumer preferences and willingness to pay for food labelling: A discussion of empirical studies’ (2003) 34(3) Journal of Food Distribution Research 101

[54] S.I. 1966:1051

[55] Caoimhín MacMaoláin, EU food law: Protecting consumers and health in a common market, Hart Publishing, 2007, p.72

[56] Iain Ramsay, ‘Consumer Law, Regulatory Capitalism and the 'New Learning' in Regulation’ (2006) 28(1) Sydney Law Review 10

[57] Recital 16 of Regulation (EU) No 1169/2011 (OJ L304/18)

[58] Article 45 of Regulation (EU) No 1169/2011 (OJ L304/18)

[59] Article 39(1) of Regulation (EU) No 1169/2011 (OJ L304/18)

[60] Article 39(1)(a)(b) of Regulation (EU) No 1169/2011 (OJ L304/18)

[61] Geraint Howells and Christian Twigg-Flesner, 2005, p.171

[62] KJ Cseres, ‘What has competition done for consumers in liberalised markets?’, (2008) 4(2) The Competition Law Review 120

[63] Defra, ‘Impact assessment on a Statutory Instrument implementing Regulation (EU) No 1169/2011 on the provision of food information to consumers’ (10th October 2012) https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/82667/consult-fic-ia-20121107.pdf accessed 2nd December 2013, p.28

[64] Ursula Hansen, ‘Consumer information as an instrument of consumer policy’ (2003) http://www.bmel.de/SharedDocs/Downloads/EN/Ministry/Consumerinformation.pdf?__blob=publicationFile accessed 13th December 2015

[65] Harry J. Bremmers, ‘An integrated analysis of Food Information to Consumers: Problems, pitfalls, policies and progress’ (2012) Proceedings in Food System Dynamics 615

[66] European Commission, ‘A European Consumer Agenda – Boosting confidence and growth’ (22:5:12) COM (2012) 225 http://ec.europa.eu/consumers/archive/strategy/docs/consumer_agenda_2012_en.pdf accessed 13th May 2014

[67] Stefan Leible, ‘Consumer information beyond food law’ (2010) 6 European Food & Feed Law Review 316

[68] Peter Bowbrick, ‘Justifications for compulsory minimum standards’ (1999) 92(2) British Food Journal 9

[69] Fernando Gómez Pomar, ‘EC consumer protection law and EC competition law: How related are they?’ (2003) InDret Working Paper available at http://www.indret.com/pdf/113_en.pdf accessed 13th May 2014

[70] Regulation (EC) No 1924/2006 of the European Parliament and of the Council of 20th December 2006 on nutrition and health claims (OJ L404/9)

[71] Directive 2005/29/EC of the European Parliament and of the Council of 11th May 2005 concerning unfair business-to-consumer commercial practices in the internal market (OJ L149/22)

[72] Andreas Meisterernst, 2013, p.95

[73] Directive 2000/13/EC relating to labelling, presentation and advertising of foodstuffs (OJ L109/29)

[74] HM Treasury and the Rt Hon George Osborne MP, ‘Budget 2016: some of the things we have announced’ (16th March 2016) http://www.gov.uk/government/news/budget-2016-some-of-the-things-weve-announced accessed 23rd March 2016

[75] Anna Mazurkiewicz-Pizlo and Beata Pachuca-Smulska, 2012, p.38

[76] Bernd M.J. van der Meulen, ‘The structure of European food law’ (2013) 2 Laws 90

 


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