New Food Information Regulations

The new Food Information Regulations are only just becoming visible. They present challenges to those enforcing them and those adhering to them. Here, Jamie Weall, Senior Food Law Advisor at Exova’s Food and Consumer Products division, considers the issues.

The new Food Information Regulations were published on 25th October 2011 and are a major change to the way that food information is provided to consumers within the EU.

These Regulations replace an old EU Directive initially dating back to the late 1970’s which were then consolidated and updated in the year 2000 to take into account changes such as quantitive ingredient declaration (QUID) and allergen labelling.

That EU Directive was very narrow in scope and because it was a directive it led to many differences in interpretation across the EU in particular in the UK, where the UK Government gold plated the EU Directive into the Food Labelling Regulations and introduced many additional provisions such as ‘selling food past its use by date’ which was detailed as being a specific offence.

The new Food Information Regulations address many of the failings of the previous Food Labelling Directive and have introduced provisions such as legibility where there is now a minimum font size for mandatory pieces of information.

Nutrition information now becomes mandatory, and not just when a nutrition claim is made and allergens have to be declared on non-prepacked foods.

Even though this new food information legislation is a regulation which is directly binding on all 27 member states, each member state needs to implement enforcing provisions within their own national legislation.

Within the UK the enforcing regulations specify provisions such as powers of entry for enforcement officers detailing where and when powers can be used to ensure compliance with the regulations.

The enforcing regulations will also stipulate powers of inspection and seizure for enforcement officers detailing what can be searched, what documents can be copied or removed or what equipment or other necessary item can be seized e.g. documents, computers, records.

However, the main and probably most important provision of the enforcing regulations are the penalties in the offences for not complying with the regulations i.e. if you do not comply with the information contained within the Food Information Regulations what offences you commit and how will maybe punished.

Within the UK the standard level of offence for not complying with a labelling requirement is ‘on summary conviction a fine not exceeding level five on the standard scale’ currently £5,000 per offence.

To explain this in plain English, ‘summary conviction’ means conviction before a magistrates court and therefore all labelling offences within the UK are criminal offences and can only be prosecuted by going to a criminal court. These offences are ‘strict’ or ‘absolute liability’ offences and the fact that they have been committed is sufficient and mens rea - or guilty knowledge - is not required.

Because they are strict liability offences the UK legislation balances the offence of strict liability by providing a due diligence defence that the offender took ‘all due diligence and exercised all reasonable precautions to avoid the commission of the offence’.

Due diligence is a system operated to prevent the offence from occurring and reasonable precautions being that the system is checked and is working correctly.

For a food manufacturer, the major parts of a successful due diligence defence include having a certificated factory, having detailed specifications, testing the product, checking and verifying the artwork complies with all relevant labelling legislation.

The due diligence defence, although not always detailed in other EU Member States legislation, is becoming increasingly popular and crucial for a successful defence.

Currently within the UK Food Labelling Regulations, there are a potential 57 offences. Most common offences are not having an accurate legal name, not declaring the ingredients in the correct order declaring incorrect QUID percentages and incorrect nutrition values.

Therefore on the face of it this seems a lot of potential offences which can be easily enforced by the relevant enforcers – Trading Standard Officers or Environmental Health Officers.

However, this is not the case and currently there are issues such as reduction in enforcement officers generally, reduced budgets within local authorities and probably most importantly the very detailed provisions regarding enforcement procedures.

The Police and Criminal Evidence Act (PACE), Enforcement Concordats, internal procedures, detailed legislative requirements on sampling all make it increasingly difficult to successfully regulate food labels.

The adversarial nature of the British legal system is very cumbersome and slow and is not an appropriate way to deal with often technical labelling offences. Some cases have taken two years to come before a court and if an original court decision is appealed the time to resolve a labelling issue is even longer.

This has led to an uneven playing field where misleading and illegal labels are allowed to be marketed because the enforcement route to prevent such practices has become too detailed and burdensome for the regulators.

DEFRA (Department for Food and Rural Affairs), which is responsible for Nutrition and Food Labelling within England, has suggested it may want to change the way the forthcoming Food Information Regulations are being enforced which could have a large impact on the food industry within England and ultimately lead to more labelling offences being challenged. This obviously will have a knock on effect for the industry to deal with such challenges.

The changes being discussed surround the introduction of compliance notices which would be issued by enforcement officers for the less serious labelling offences which are likely to be the majority of offences such as non compliant names, ingredient lists, inaccurate QUID percentages, illegible information.

Only the most serious offences which have an impact on food safety would still be enforced through the current court system. These would most likely include not complying with the allergen labelling requirements and not complying with the use-by date provisions.

Such changes as detailed above are quite onerous. DEFRA is currently investigating this in detail with various other government agencies prior to the enforcement regulations being sent out to the industry for its usual consultation.

The use of compliance notices within England is not a new one and this enforcement tool is currently being utilised in another piece of food legislation – The Poultry meat (England) Regulations 2011 which provide the enforcement provisions for the EU Regulations – 543/2008 laying down detailed rules for the application of Council Regulation (EC) No 1234/2007 as regards the marketing standards for poultry meat.

These regulations indicate the following in relation to compliance notices:-

A compliance notice must -
• (a) state the authorised officer’s grounds for the belief;
• (b) specify the matter that constitutes the contravention of these regulations;
• (c) specify the activities that must stop, or the measures that must be taken in order to comply with these regulations;
• (d) state the period within which an activity must stop or measures specified in the notice, or measures at least equivalent to them must be taken;
• (e) state the right of appeal to a magistrates’ court conferred by regulation 15; and
• (f) state the period within which such an appeal may be brought.

It is an offence not to comply with a compliance notice.

Consequently, the issuing of such compliance notices will be a lot easier with far fewer restrictions or procedures to follow and could result in many more notices being issued by enforcement officers as they do not need to comply with the current legal ‘hoops’ to put an offence before the courts.

If this is the case it will mean that the industry will need to provide more resource to deal with such notices and ensure that their systems and procedures in place are robust in detail to make sure that all of the provisions of the new Food Information Regulations are adequately covered.

To summarise, the new Food Information Regulations will bring about many changes requiring the provision of more information on food for consumers. These changes will result in the industry spending a lot of time and effort to ensure compliance.

However, how these regulations are to be enforced within each member state needs to be considered as well and if the offences are dealt with as England may consider, the danger is it may result in the issue of many compliance notices by enforcement officers.

This would mean the industry would need to provide more resource and better systems to ensure compliance and be prepared to challenge compliance notices when it is considered that they have been issued inappropriately.