LABELLING GUIDANCE ON INSECT FOODS AVAILABLE by Nikolaas Tilkin-Franssens

The European association for the promotion of insect foods, IPFF (International Platform of Insects for Food and Fee) has published an extensive guidance document covering the labelling requirements applicable to insect foods.

Note that at present there is no general authorization yet for any insect food or food ingredient  under EU law. Currently, several novel food applications for insect foods are still pending with the European Commission. There are however a number of EU Member States which do permit the use of a limited number of insect foods. Belgium for instance allows the use of 10 different types of insects for human consumption (for more information, click the following link [Dutch/French only]).

The Guidance elaborates on the main EU instruments that regulate the labelling of foods in general, the Food Information to Consumers Regulation (Regulation 2011/1169) and the Regulation on the use of Nutrition and Health Claims (Regulation 2006/1924). In case insect foods find novel food authorization, the applicable legal name is likely to be captured in the authorization and the Union List of Novel Foods.

The Guidance includes practical examples to illustrate the application of EU food labelling principles to show for instance what would be considered misleading information or what could constitute an unauthorized health claim.

Two important considerations on the declaration of allergens for insect foods are included in the Guidance. First, potential allergenicity may derive from the feed materials given to insects which are destined for human consumption. When insects eat wheat-based feed, there may be gluten present in the insects. Accordingly, in such case the presence of gluten as an allergen should be labelled. Secondly, insects as such are not considered allergens but there is evidence of links with  allergenic reactions to crustaceans. The allergenicity of an insect food does forms part of the novel food assessment, so potentially insect protein may be considered an allergen. As this currently not yet the case, the guidance advises as a precautionary measure to include a statement in the labelling of insect foods which highlights the similarity between the allergenicity of insects and that to crustaceans and dust mites.

IPIFF – Guidance: the provision of food information to consumers - link

NORWAY STRENGTHENS RULES ON ADDITION OF NUTRIENTS AND USE OF OTHER SUBSTANCES by Nikolaas Tilkin-Franssens

A recent Norwegian amending act creates additional rules on the addition of vitamins and minerals and the use of other substances in foods. The positive list of permitted other substances is also applicable to use in food supplements. The amendment makes that Norway is taking a stricter approach on the addition of vitamins and minerals to foods than the general European Union approach.

European Union Regulation 1925/2006 indicates the vitamins and minerals and their respective sources which may be added to foods but does not specify any food categories nor does it establish maximum levels. Norway, as part of the European Economic Area, enforces the EU Regulation but has adopted additional legislation indicating which vitamins or minerals can be added to a particular food category as well as establishing maximum levels applicable for these categories.

The restrictions are however not completely limiting. Foods which do not comply with the restrictions can be marketed when duly notified and by submitting the information specified in the new Appendix 2 of the Norwegian Regulation on the Addition of Vitamins and Minerals to Foods (Forskrift om tilsetning av vitaminer, mineraler og visse andre stoffer til næringsmidler). Note that notification of fortified foods and food supplements at time of placing on the market in Norway is always required. The amendment exempts the obligation for foods which only contain added sodium, chloride and potassium.

Further, the amendment establishes a list with a number of other substances which may be added to foods including food supplements. The list also holds conditions of use for these substances. Foods which do not meet these conditions can be marketed if notified together with the required information under Appendix 4. There is also the possibility to make an application for the addition of other substances to foods and food supplements which are not on the positive list. Different to notification for foods and food supplements that do not meet the conditions of use, the Norwegian Food Safety Authority has to give formal permission for the use of non-listed other substances.

The new set of rules will apply from 1 January 2020.

Forskrift om endring i forskrift om tilsetning av vitaminer, mineraler og visse andre stoffer til næringsmidler (Regulations on amendments to regulations on the addition of vitamins, minerals and certain other substances to foods) (1 July 2019) - link

NETHERLANDS EXTENDS LIST OF TOXIC BOTANICALS by Nikolaas Tilkin-Franssens

An amendment to the Dutch Commodities Act Decree on Herbal Preparations (Dutch: Warenwetbesluit Kruidenpreparaten) introduces additional restrictions for the use of herbal preparations. Firstly, it adds a number of toxic compounds that herbal preparations may not contain such as scopolamine and their derivates. Further the amendment inserts Aconitum carmichaelii, Aconitum kusnezoffii and Pilocarpus jaborandi to the list of restricted plants.

Decree amending the Commodities Act Decree on herbal preparations and the Commodities Act Decree on administrative penalties regarding the addition of certain harmful (substances in) herbal preparations and applying certain technical amendments - link

DUAL FOOD QUALITY STUDY SHOWS FEW COMPOSITIONAL DIFFERENCES by Nikolaas Tilkin-Franssens

As part of investigating quality differences for similar products among European countries, the Commission has published a study which compared products in terms of composition and their presentation.

A number of countries claimed that food producers consistently marketed different (read: lower) quality foods in a number of European Union countries. Although food safety standards are harmonized in the European Union, the quality of food is less clearly regulated. Only for a limited number of foods compositional criteria apply or quality schemes may apply (e.g. geographical indications). The consideration has been made that these acts could be potentially be viewed as unfair commercial practices by inducing consumers to believe a product has similar characteristics on the basis of analogous branding while in reality the composition differs. The misleading character of such act will depend on the circumstances as compositional differences can also relate to legitimate and objective factors. Such may be adaption to local consumer preferences, reformulations in line with local nutritional recommendations or variability in raw material supplies.

Following the allegations, the Commission allocated resources to investigate the matter. The recent report on the testing of 1380 products of 128 different food products from 19 different member states is one of these initiatives. The study concludes that for the studied products there is no consistent geographical differentiation. In addition, in the cases a compositional difference is found it does not necessarily imply a difference in the products’ quality. Only for 9% of the evaluated products a difference in composition was found where the front of pack was identical. A much larger fraction of products (31%) having a identical or similar front of pack showed to have an identical composition.

As it is realized, the 1380 only represent a small fraction of products, therefore testing and evaluation will continue with the same methodology.

Joint Research Centre: Results of an EU wide comparison of quality related characteristics of food products - link

UK WILL MAKE ALLERGY LABELLING FOR FOODS PACKED FOR DIRECT SALE MANDATORY by Nikolaas Tilkin-Franssens

The UK authorities have announced the introduction of new rules on allergen labelling of foods that are packed at the sellers premises for direct sale.

The adoption of the new law is triggered by the death of a teenager eating a baguette from the popular chain of English sandwich shops Pret a Manger. At present, foods which are prepacked at the sellers premises do not require a full ingredient list in line with European Regulaton on food information to consumers (Regulation 1169/2011). The sandwich the girl had bought did not have an ingredient list making that the girl was not able to observe the bread contained sesame to which she was severely allergic.

The new allergen labelling rules will make the display of a full ingredient list mandatory for all foods prepacked for direct sale. The new legislation will apply from 2021 in order to allow producers and retailers the time to adapt to the new set of labelling rules.

FSA welcomes new allergen labelling law (25 June 2019) - link

CAN DON QUIXOTE SERVE AS THE KEEPER OF SPANISH MANCHEGO CHEESE? by Nikolaas Tilkin-Franssens

In its judgment of 2 May 2019, the European Court of Justice has ruled that images or illustrations which trigger association with a certain region or area can be part of the protection of a Protected Designation of Origin (PDO) or a Protected Geographical Indication (PGI).

The ruling related to the PDO of Spanish Manchego cheese but has essentially provided for an extensive protection of PDOs in general. European rules on quality schemes for agricultural products and foodstuffs protect registered names (PDOs and PGIs) against any misuse, imitation or evocation. For the given case, the European Court was asked to interpret the extent of ‘evocation’ in terms of figurative signs.

The request for a preliminary ruling was triggered by the local foundation responsible to oversee the Manchego cheese PDO. The foundation initiated proceedings against a local distributor selling cheeses that were not covered by the protected designation of origin of Manchego cheeses. The cheeses only had names linked to the famous literary character Don Quixote de La Mancha and depicted typical features of the la Mancha region in Spain, including landscapes, windmills and sheep.

Although the cheeses did not have a name similar to Manchego, the foundation persisted and eventually appealed to Spanish Supreme Court. The Supreme Court decided to stay proceedings and ask the European Court of Justice whether the use of figurative signs could also trigger the evocation of the ’Manchego PDO.

The Court of Justice decided the protection of registered names does not only refer to words ”but also to any figurative sign capable of evoking in the mind of the consumer products whose designation is protected”. The national court will further need to determine whether the respective images “are capable of triggering directly in the consumer’s mind the products whose names are registered”. Furthermore, the Spanish court will also need to consider whether the link between the illustrations of local features and the PDO is sufficiently strong to create a conceptual proximity, taking account that the challenged producer is established in the same region. The court added that the consideration should be based on the concept of the average consumer who is reasonably well informed and reasonably observant and circumspect. This concept should cover European consumers, “including consumers of the Member State in which the product giving rise to evocation of the protected name is made or with which that name is geographically associated and in which the product is mainly consumed”.

EU Court of Justice, Case C‑614/17, Fundación Consejo Regulador de la Denominación de Origen Protegida Queso Manchego v Industrial Quesera Cuquerella SL, Juan Ramón Cuquerella Montagud - link

DUTCH RULING CALLS FOR CLARITY OVER VANILLA FLAVOUR by Nikolaas Tilkin-Franssens

The Dutch Advertising Code Commission (in Dutch; Reclame Code Commissie) found the indication “vanilla” on front of pack to be misleading considering the product at stake does not contain natural vanilla.

A local consumer organization, named Foodwatch, initiated a case against Friesland Campina on the allegedly misleading labelling of a vanilla flavoured dessert. It argued the simple indication of “flavouring” in the list of ingredients is not sufficient to lose the impression of consumers that the product would contain real vanilla. Neither would the side of pack statement “smooth vanilla flavour” lift such impression. In the appeal brought by Friesland Campina, the Commission confirmed the grievances brought by Foodwatch. Furthermore, the defence that “vanilla” would be part of the commonly used name for this type of product (In Dutch: vanillevla, or vanilla custard) was not upheld. This led the Dutch Advertising Code Commission to confirm the labelling was misleading in terms of the product’s composition.

Reclame Code Commissie: 2018/00701 (16 May 2019) - link

NUTRISCORE HITS HURDLE IN GERMAN COURT by Nikolaas Tilkin-Franssens

The health logo, more commonly known as Nutriscore, developped by the French authorities to provide a ranking to foods in terms of their relative nutritional quality has been restricted by the  district court of Hamburg in Germany. Food manufacturer Iglo, who included the logo on its packaging, had been challenged by a consumer protection association. It has received an injunction to remove the logo from its labelling.

The use of the Nutriscore scheme is voluntary but is increasingly supported by both industry and member state authorities. Originating in France, the scheme is being considered for implementation in Belgium, Spain, Portugal, Luxemburg and Netherlands. There were hopes to have the Nutriscore as a unified health logo around Europe, but this idea now receives its first backlash. Iglo indicated it would appeal the Court ruling as soon as possible.

Note: Court ruling currently not available.

See: IGLO – Press Release (16 April 2019) - link

Simultaneously, the German Federation for Food Law and Food Science (Bund für Lebensmittelrecht und Lebensmittelkunde or BLL) has proposed a different voluntary Nutritional Labelling Model. The front of pack indication depicts the energy value together with the amounts of fat, saturates, sugar and salt. An additional visualisation shows how much the food’s energy value and each nutrient contributes to their respective reference intakes. Different from the French Nutriscore model, it does not provide for a ranking of the food as a whole. It neither indicates whether the values are high, average or low as is the case with the UK traffic light labelling scheme. The reason provided is that foods neither nutrients should be ranked as all foods may fit in a balanced diet. People should not remove foods from their diets but rather eat a balanced and varied diet.

BLL -  Nährwerte auf der Schauseite: Spitzenverband der Lebensmittelwirtschaft entwickelt neues Kennzeichnungsmodell - link

EU FOODS TO BE FREE OF TRANS FATS by Nikolaas Tilkin-Franssens

The Commission has adopted the Regulation restricting the presence of trans fat in foods. The prohibition applies to foods intended to be sold to final consumers as well as food intended for supply to retail. The Regulation requires the content of trans fat, other than fat naturally occurring in fat of animal origin, to not exceed 2 grams per 100 grams of fat. Food which does not comply with this Regulation may continue to be placed on the market until 1 April 2021. In line with the European labelling information rules, food business operators need to take appropriate measures to inform other operators they supply to in case their foods and raw materials exceed 2 grams of trans fat per 100 grams of fat.

The Restriction follows from the EFSA scientific opinion of 4 December 2009 which recommended to keep the intake of trans fatty acids as low as possible because of the link with an increased  risk  of  coronary  heart  disease. In a succesive report, the European Commission concluded that from the public health measures available – inter alia the labelling of trans fat content, voluntary initiatives by the food industry, Member States initiatives, a EU legal limit was to be the most effective measure.

The restriction will be listed among the restricted substances in Regulation 1925/2006 of 20 December 2006 on the addition of vitamins and minerals and of certain other substances to foods.

Besides, the Commission decided to update the status of Yohimbe bark in the latter Regulation. Due to uncertainty regarding the safety of Yohimbe (Pausinystalia yohimbe (K. Schum) Pierre ex Beille) and its preparations in foods, the substance was placed under EU scrutiny in 2015. Since that time, no scientific evidence has been submitted that would demonstrate the safety of Yohimbe and its preparations making the substance will be prohibited for use in foods.

COMMISSION REGULATION (EU) 2019/650 of 24 April 2019 amending Annex III to Regulation (EC) No 1925/2006 of the European Parliament and of the Council as regards Yohimbe (Pausinystalia yohimbe (K. Schum) Pierre ex Beille) - link

Commission Regulation (EU) 2019/649 of 24 April 2019 amending Annex III to Regulation (EC) No 1925/2006 of the European Parliament and of the Council as regards trans fat, other than trans fat naturally occurring in fat of animal origin - link

FRANCE PURSUES TITANIUM DIOXYDE BAN by Nikolaas Tilkin-Franssens

As reported in our blog item of 2 November 2018, France has adopted a law in order to restrict to use of titanium dioxide (E171) in foods.

Yet, last February, the local French safety assessor ANSES had been requested to reconsider the safety objections on the use of the additive taking account of newly published scientific evidence. In its new Opinion ANSES concludes there are no grounds to revisit the earlier conclusions. It stands by its earlier recommendation to limit the exposure to the substance. ANSES reiterates that the exposure to nanomaterials by workers, consumers and the environment should be limited, in particular by promoting products - free from nanomaterials - that are safe and equivalent in terms of functionality and efficiency.

ANSES (12 April 2019) - AVIS de l’Agence nationale de sécurité sanitaire de l’alimentation, de l’environnement et du travail relatif aux risques liés à l’ingestion de l’additif alimentaire E171 - link

Following the above Opinion, the French authorities have formalised the restriction of the additive through the adoption of a Decree adopted on 25 April. The ban on the use of titanium dioxide will apply from 1 january 2020 and will last for one year.

Arrêté du 17 avril 2019 portant suspension de la mise sur le marché des denrées contenant l'additif E 171 (dioxyde de titane - TiO2) - link

NEW REGULATION REINFORCES THE MUTUAL RECOGNITION PRINCIPLE by Nikolaas Tilkin-Franssens

The new regulation on the mutual recognition of goods lawfully marketed in another Member State (Regulation 2019/515) has been published introducing several measures to strengthen the application of the fundamental EU principle. The concept of mutual recognition derives from European Union case law in the application of the free movement of goods embedded in the European Treaties. It essentially requires EU member states to guarantee the introduction of goods which have been lawfully marketed in another member state. In case a member state restricts the market access it needs to clearly justify why market access has been restricted.

The new Regulation, replacing former Regulation 764/2008, elaborates on the technical application of the above principle in order to minimise unlawful EU barriers to trade. It establishes a set of rules and procedures to guarantee the appropriate application of the mutual recognition principle. Different from the preceding Regulation, it introduces the Mutual Recognition Declaration. This concerns a self-voluntary declaration which can be used to demonstrate the lawful marketing of goods in a member state to the authorities of another member state. The structure and content of the mutual recognition declaration is further established in the Annex of Regulation 2019/515. Further, the Regulation determines the procedure by which a member state can assess whether goods have been legally marketed in another member state. Important to note is that the economic operator retains his right to market the goods during the assessment. Only where the goods pose a serious risk to safety or health of persons or to the environment or similar goods are generally prohibited on grounds of public morality or public security the member state of destination may temporary suspend the entry of the concerned goods. In such case the competent authority needs to notify the economic operator as well as the European Commission and the other member states. In its assessment the competent authority shall take account of the mutual recognition declaration, if available. Following the assessment, the competent authority shall notify and duly justify its administrative decision. It shall provide for the remedies and procedures available under its national law and a reference to the SOLVIT procedure. SOLVIT is an alternative, non-judicial mechanism to settle disputes between individuals or business and member states regarding the application of EU law. In case an administrative matter limiting the free movement rights of an economic operator is brought before a SOLVIT centre, the European Commission will provide an opinion on whether the administrative decision is compatible with the principle of mutual recognition. Lastly, the new mutual recognition Regulation aims to raise awareness of the free movement principles and promote the exchange of information through Product Contact Points in the different member states. Regulation 2019/515 will enter into force on 18 April 2019 and apply from 19 April 2020.

Regulation (EU) 2019/515 of the European Parliament and of the Council of 19 March 2019 on the mutual recognition of goods lawfully marketed in another Member State and repealing Regulation (EC) No 764/2008 - link

FRENCH FOOD SAFETY AUTHORITY CAUTIONS THE USE OF ARTHRITIS SUPPLEMENTS by Nikolaas Tilkin-Franssens

A recent report advises against the consumption of food supplements containing glutamine and/or chondroitin sulfate for certain population groups. The undesired adverse effects can include digestive problems, abdominal pain, rash, itching, hepatitis or haemorrhagic lesions of the skin. At present, food supplements and medicinal products containing glucosamine and chondroitin sulfate are widely available.

Although the French Food Safety Authority, named ANSES, also recognises in its report that both glucosamine and chondroitin sulfate contain compounds naturally found in the connecting tissues and cartilage of our the human body which promote the structure and elasticity of cartilage tendons and skin. For certain risk groups the consumption of both substances should be avoided. The identified risk groups are:

(i) people with diabetes or pre-diabetic, asthmatic or treated with anti-vitamin K,

(ii) (for food supplements based on glucosamine) people with a food allergy to crustaceans or insects.

(iii) people whose diet is controlled for sodium, potassium or calcium, as these supplements can be an important source.

(iv) children and pregnant or breastfeeding women.

ANSES advises food producers to take account of the risk groups and appropriately inform consumers. In addition, it calls for the establishment of harmonised European Union maximum use levels for both glucosamine and chondroitin sulfate.

ANSES (29/03/2019) - Les compléments alimentaires à visée articulaire déconseillés à certaines populations - link