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As of 1 April 2020, new rules for the labelling of food with the country of origin or place of provenance of its primary ingredient will come into effect within the European Union. Will labelling pizza with the words “Italian style” still be allowed? Will it be risky to label blue cheese produced in Poland with a French flag or an image of the Eiffel Tower? What is the primary ingredient of a food product? Both food producers and distributors, including retail chains, will have to answer these and other questions for themselves regarding the application of the EU Regulation on the rules for labelling food with the country of origin or place of provenance of its primary ingredient.
Rules for food origin labelling
For a long time now, Article 26 of Regulation (EU) No 1169/2011 on the provision of food information to consumers (known as the Food Labelling Regulation) provided the general rules and requirements for indicating the country of origin or place of provenance of foodstuffs. In its current wording, Article 26(2)(a) of the Regulation lays down a requirement to indicate the country of origin or place of provenance of food “where failure to indicate this might mislead the consumer as to the true country of origin or place of provenance of the food, in particular if the information accompanying the food or the label as a whole would otherwise imply that the food has a different country of origin or place of provenance”. For example, if the packaging of a frozen pizza produced in Poland is labelled with an image of the Colosseum and some Italian-sounding words which could suggest to a consumer that the product comes from Italy (which is a common marketing trick seen on the market), while in reality, except for the name pizza, the product has never had much to do with Italy (in particular, the products contained in the pizza do not come from Italy), then, on the basis of the long standing EU Regulation, the product should be labelled with the product’s actual country of origin or place of provenance.
The abovementioned Regulation No 1169/2011 has also for a long time contained provisions regarding the primary ingredient of food (Article 26(3)), pursuant to which “[w]here the country of origin or the place of provenance of a food is given and where it is not the same as that of its primary ingredient”, then either “the country of origin or place of provenance of the primary ingredient in question shall also be given”, or “the country of origin or place of provenance of the primary ingredient shall be indicated as being different to that of the food” (this would apply, for example, to tomato purée which, according to its packaging, comes from Poland, despite the fact that the tomatoes constituting the purée’s primary ingredient come from the Netherlands – in accordance with the above rule, the product’s packaging should indicate that the tomatoes used come from the Netherlands, or that they do not come from Poland). The application of this requirement was made conditional upon the adoption of an appropriate Union-level implementing act (therefore, until such an act was adopted, the rule was not applied). In May 2018, Commission Implementing Regulation (EU) 2018/775 laying down rules for the application of Article 26(3) of Regulation (EU) No 1169/2011 of the European Parliament and of the Council on the provision of food information to consumers, as regards the rules for indicating the country of origin or place of provenance of the primary ingredient of a food was adopted (the Implementing Regulation). Its application was suspended until 1 April 2020.
What products will the Implementing Regulation apply to? What products will need to include information about the country of origin or place of provenance of their primary ingredient?
The obligation to indicate the primary ingredient of a product will apply to any foodstuffs which have been labelled in any form (voluntarily or mandatorily) with the country of origin or place of provenance – by way of a statement, pictorial representation, symbol or term referring to places or geographical areas – and the food’s indicated country of origin or place of provenance is not the same as that of the product’s primary ingredient. Going back to the example of tomato purée, such a situation would arise if the product is, for example, labelled with an Italian flag (suggesting that it comes from Italy), while the tomatoes (which constitute 90% of product’s the ingredients) come from the Netherlands – the purée’s packaging will need to include information stating that its primary ingredient (tomatoes) does not come from Italy (or directly indicating that the tomatoes come from the Netherlands), even if an Italian enterprise produced it. Therefore, labelling food with its country of origin applies not only to situations where the product’s packaging explicitly states “country of origin: Italy”, but also where an enterprise decides to label a product with elements, such as, for example, a map of a given region (e.g. the characteristic “boot” of Italy), which may suggest to consumers that the enterprise declares that the food comes from a specific country.
And what about customary names, such as “Ukrainian borscht” or “Russian pierogi” – will the Regulation in question also apply to them?
The Regulation provides for some exceptions to the scope of its application. One of them is for products labelled with geographic terms included in customary and generic names, where those terms literally indicate origin but which are commonly understood to not be an indication of the country of origin or place of provenance. The European Commission gives the example of “Frankfurter sausage” – therefore, a Polish producer will not be required to indicate that the meat used to produce the sausages does not come from Frankfurt, or from Germany in general, because an average consumer knows that the product’s name does not refer to the German origin of those sausages, but rather is a customary name. Similarly, it should be assumed that this exemption would apply to the product known in Poland as “Ukrainian borscht” . However, it must be noted – as aptly done by the European Commission in its guidelines – that “the question relates to consumers’ understanding” of certain expressions “within every single Member State and there are significant differences in consumers’ perceptions of these aspects amongst the EU”. Therefore, whether a given enterprise will be entitled to benefit from this exception will need to be considered on a case-by-case basis. Returning to the example of “Ukrainian borscht” – not all Member States may have the same understanding of the “Ukrainian nature” of borscht. By the same token, not everyone in Poland would understand the reference to Russia in the case of an Italian vegetable salad called “insalata russa”, literally translated as “Russian salad”, and, it would not be clear to all EU consumers that the word “Russian” in the name “Russian pierogi” does not mean that they come from Russia.
As for now, the Regulation will not apply to geographical indications protected under Regulation (EU) No 1151/2012, Regulation (EU) No 1308/2013, Regulation (EC) No 110/2008 or Regulation (EU) No 251/2014 or those protected under international agreements, nor to registered trademarks where they constitute an indication of origin, pending the adoption of specific rules on the application of Article 26(3) to such indications.
What is a primary ingredient and is it possible to isolate it in every product?
The term ”primary ingredient” means “an ingredient or ingredients of a food that represent more than 50% of that food or which are usually associated with the name of the food by the consumer and for which in most cases a quantitative indication is required”. It may happen that a food will have no primary ingredient within the meaning of the Regulation’s definition. This will be the case if none of the food’s ingredients represents more than 50% of that food, and none of its ingredients are usually associated by consumers with the name of the food (e.g. muesli).
Who do the new regulations apply to? Who is obliged to comply with the new labelling requirements?
The new obligation applies to entities under whose name or business name a given food is marketed or – if the entity does not carry out business activities in the European Union – the importer of a given food into the EU market. Therefore, in general, the new obligations apply to producers, importers and distributors of products manufactured outside of the European Union, as well as retail chains which market food under their own brands. Please remember that, according to the provisions of food law, food business operators (including retail chains) which do not have control over information on food (as the producer provides it on the packaging), are prohibited from delivering food which they know, or which they suspect (on the basis of information learned within their business activities), does not comply with the laws on food information and the requirements of applicable domestic law. Thus, the possibility that supervisory authorities may conduct audits of, for example, importers and sellers of products under third-party brands, cannot be excluded.
How should the information on the origin of the primary ingredient of food be indicated?
The Implementing Regulation provides for two ways in which information on the origin of the primary ingredient may be provided. Firstly, this may be done by labelling the product with the following statement: “(name of the primary ingredient) do/does not originate from (the country of origin or the place of provenance of the food)” or any similar wording likely to have the same meaning for the consumer. Secondly, the primary ingredient’s country of origin or place of provenance may be given by reference to one of the geographical areas indicated in the implementing Regulation, e.g. “EU” or “non-EU”, or a specific Member State or a third country (in the tomato purée example, this could read as follows: produced in Poland, country of origin of the tomatoes: the Netherlands).
primary ingredient, country of origin, food origin labelling, Italian style, food law
Check our references:
- Regulation (EU) No 1169/2011 of the European Parliament and of the Council of 25 October 2011 on the provision of food information to consumers, amending Regulations (EC) No 1924/2006 and (EC) No 1925/2006 of the European Parliament and of the Council, and repealing Commission Directive 87/250/EEC, Council Directive 90/496/EEC, Commission Directive 1999/10/EC, Directive 2000/13/EC of the European Parliament and of the Council, Commission Directives 2002/67/EC and 2008/5/EC and Commission Regulation (EC) No 608/2004;
- Commission Implementing Regulation (EU) 2018/775 of 28 May 2018 laying down rules for the application of Article 26(3) of Regulation (EU) No 1169/2011 of the European Parliament and of the Council on the provision of food information to consumers, as regards the rules for indicating the country of origin or place of provenance of the primary ingredient of a food;
- Commission Notice on the application of the provisions of Article 26(3) of Regulation (EU) No 1169/2011 (2020/C 32/01)
 Pursuant to Article 26(2)(a) of Regulation No 1169/2011