What 2017 'may contain' and the labelling health halo

United Kingdom

We anticipate that in 2017 consumers will continue to focus on the health and nutrition benefits of what they eat. For food business operators (FBO’s) this means that food labelling must be both accurate and effective. Since the enactment of the Regulation (EU) No. 1169/2011 on the provision of food information to consumers (FIC), food labelling has been under the spotlight with rules and guidelines constantly evolving. Early on there was increased focus not only on food safety in general but also specific risks, for example from allergens. Food labelling has now become the weapon of choice to promote healthy eating. Consequently some FBOs are adopting a protectionist approach to labelling in response to increasingly powerful consumer lobbies threatening potentially costly litigation. This is creating a confusing landscape for consumers with the sheer number and ambiguity of some claims making it increasingly difficult to differentiate between products.

Nutrients, Allergens and Free From

One of the final stages of implementation of FIC was achieved on 13 December 2016 when nutrition declarations on pre-packaged foods become mandatory. Nutrition declarations must contain the energy value and the amounts of fat, saturates, carbohydrate, sugars, protein and salt, in that order. (Exempted food and drinks include alcohol, teas, coffees and chewing gum).

We wait to see whether the Nutrient Profiling that many consider necessary to properly interpret this information will also be implemented in 2017. To date the EU is relying only on the current rules to ensure that the very provision of this information is not of itself misleading.

Under FIC, 14 everyday allergens ingredients including nuts, milk, gluten, soya and wheat must be easily identifiable in the ingredients list in bold, italics, highlighted or underlined. These measures cover not only supermarkets but any establishment in which food is served. A report emerged recently of two arrests being made following the death of a teenager who suffered an apparent allergic reaction after eating a takeaway meal. A reminder of the case last year resulting in jail for the owner of an Indian takeaway for gross negligence manslaughter which highlighted the importance of the provision of clear information about allergens. The owner said (and may have thought) his meals were nut free in accordance with the recipe. It turned out that he had substituted almond powder with cheaper ground nut mix. This contained allergens which were not disclosed. When consumed by an unsuspecting diner it resulted in a fatality.

In contrast, gluten labelling has been mandatory for some time. Regulation (EC) No 41/2009 set defined levels of gluten for foods said to be either 'gluten-free' or 'very low gluten'. In July 2016 Regulation (EU) 828/2014 stipulated the composition of ‘gluten free’ or ‘reduced’ levels of gluten. In addition to gluten levels, Regulation (EU) 828/2014 also provides for the use of statements such as ‘suitable for coeliacs’ or ‘specifically formulated for coeliacs’. Although 2016 saw a move away from Foods for Special Purposes and what might have been considered “dietetic” food to a more main stream regulatory approach the specific rules on Gluten remain. Just last week the significance and rapid growth of specialist gluten free products was recognised by the inauguration of the Gluten Free Industry Association (GFIA).

Although legislation in relation to allergens has had the positive effect of providing greater clarity and certainty to consumers, especially those suffering from allergies, FBOs must be alert to the financial and reputational repercussions of falling foul of these regulations. This may explain a rise in the use of ‘may contain’ and similar advisory warning statements. As a result the Food Standards Agency (FSA) has expressed concern that ‘may contain’ labelling is used too frequently and often unnecessarily by FBOs to the extent that it may be misleading.

The ‘health halo’

Consumers are taking a much greater interest in food than a generation ago with discerning ‘millennials’ paying particular attention to food ingredients and origin. As the number of consumer diets and tastes have expanded, so too have the amount of labels used by FBOs. Another trend we see for 2017 is towards a greater personalisation of diets. There has also been a recorded rise in the number of digestive health and immune conditions with a proliferation of health claims to match. As FBOs seek to cater for familiar groups such as vegans and newly coined groups such as flexitarians, a plethora of claims, signs and colours are now appearing on packaging. Some feel that rather than improving clarity, much of this labelling is confusing and even misleading. For example, products which contain more than 3% of fat, and do not qualify to claim ‘low fat’, but have been branded as ‘light’. An investigation by the Consumers' Association recently found some foods branded as 'light' have up to seven times more fat than those described as 'low fat'.

Ambiguous or over-used claims can have the effect of undermining valid health warnings on products and may be seen as unnecessarily restricting consumer choice. Article 36 of FIC states that food information provided on a voluntary basis must not mislead consumers or be ambiguous or confusing. We may well see increasing challenges in 2017 over whether certain claims such as ‘light’ or ‘may contain’ are misleading and/or unfairly restrict consumer choice. A more transparent approach might be more definitive wording such as “not suitable for X allergen” instead of “may contain” claims. As consumers seek clarity they are driving another growing trend of de-cluttered “clean labelling”. The need for both clarity and compliance emphasise the pressures of achieving accurate labelling.

Flexitarian & Eco-labelling

Another trend for 2017 within the food industry aimed at providing trusted information is the practice by FBOs of partnering with organisations in order to offer allergen or eco-labelling schemes. This affords credibility to products and, where the partnering organisation is of a charitable or environmental persuasion, it can also have positive reputational consequences.

For example, in November 2016 a leading international consumer products company announced that it had established a partnership with the European Vegetarian Union (EVU) which will see around 500 of the company’s products printed with the EVU’s 'V’ label on pack throughout Europe. This is the first time such a large collection of brands will be covered by the EVU’s scheme. Catering for the rising trend in flexitarian and vegetarian eating, this leading consumer products company hopes that offering uniform, European-wide vegetarian standard for its food brands will attract consumers on flexitarian and vegetarian diets.

At the same time the world’s largest seafood eco-labelling scheme was also announced in response to demand from consumers, retailers and restaurants for ethically-sourced and sustainable seafood. The scheme is operated by the Marine Stewardship Council (MSC) whose blue logo is used on products worldwide. The scheme is scheduled to become part of the Global Sustainable Seafood Initiative, a benchmark backed by leading retailers, the UN Food and Agriculture Organization and NGOs. The global benchmark, launched last year, has already recognised schemes that operate in Alaska and Iceland and is expected to give its stamp of approval to the MSC next year.

However, many FBOs report they have struggled with the investment required to obtain the benefits of certification. In addition, with several schemes vying for prominence in the seafood industry alone, there is little hope of a single, consistent eco-label. For examples, the Alaskan fishing industry dropped the MSC eco-label in 2012 and introduced their own alternative, citing MSC’s costly and burdensome procedures. Developing countries such as Vietnam and Thailand have also been looking to launch their own eco-labels. This inevitably leads to a lack of consistency and again creates confusion amongst consumers.

Conclusion

The UK’s plans to leave the EU will inevitably impact on FBO’s in 2017 if only for the lack of certainty for planning purposes. Clearly a balance needs to be struck between providing consumers with the information they require to make an informed choice and giving too much or too little information resulting in ambiguous or misleading claims. FBOs are well advised keep regulatory developments, FSA and local guidance plus consumer trends under regular review throughout the early parts of this year.