The labelling of prepacked food

Do you sell food? Then you must ensure that the label on the packaging of that food complies with a number of special rules. The label of a prepacked food must contain honest and clear information so that the consumer knows what he is buying and consuming. The Netherlands Food and Consumer Product Safety Authority (NVWA) has published the ‘Labelling of Food Handbook’ as a guideline for businesses in order to comply with the legal obligations concerning the labelling of prepacked food (hereinafter: the 'Handbook'). The Handbook provides further explanation and clarification of each mandatory food information on a prepacked food label and covers the intervention policy of the NVWA. Basak Akkus briefly discusses the contents of the Handbook as well as the (legal) obligations applicable to businesses.

Regulatory framework

There are many detailed rules for food labelling. The European Regulation (EU) No. 1169/2011 on the provision of food information to consumers is the basic regulation with rules for food labelling. The European Regulation applies to all foodstuff sold in the Netherlands. This European Regulation is supplemented by specific requirements for specific food in a number of European Regulations and Directives.

The Dutch rules for food labelling are included in decrees and regulations based on the Commodities Act. The most important decree is the “Warenwetbesluit Informatie Levensmiddelen (“WIL”)”.  This decree is the basis for the application and enforcement of European Regulation (EU) No. 1169/2011 in the Netherlands and contains specific provisions on, among other things, language (article 3), lot code (article 4 and 5), packaged food (article 7) and unpackaged food (article 8). In addition to this “Warenwetbesluit Informatie Levensmiddelen”, there are several other decrees and regulations based on the Commodities Act with labelling rules that apply specifically to products for the Dutch market.

In addition to the Regulation (EU) No. 1169/2011 on the provision of food information to consumers, there are several other European regulations and directives that contain labelling / information requirements for specific products or ingredients. Some examples are:

• specific compositional and information requirements for infant formula and follow-on formula and as regards requirements on information relating to infant and young child feeding (European Regulation (EU) No. 2016/127);
• cocoa and chocolate products intended for human consumption (Directive 2000/36/EC);
• specific compositional and information requirements for total diet replacement for weight control (European Regulation (EU) No. 2017/1798);
• requirements for the provision of information to consumers on the absence or reduced presence of gluten in food (European Regulation (EU) No. 828/2014); and
• organic production and labelling of organic products (European Regulation (EU) No. 2018/848);.

Purpose and scope of European Regulation (EU) No. 1169/2011

The aim of the rules on food information is to ensure a high level of consumer protection. Food information must be fair and clear. This applies not only to food labels but also to advertising. In addition, the rules that apply to labelling also apply to the presentation of food (shape or appearance), packaging, packaging materials and the setting in which it is displayed. The basic principle for food information is that it must not be misleading, in particular:

• with respect to the characteristics of the food (e.g. properties, composition or method of production);
• by attributing to the food effects/properties that it does not possess[1];
• by suggesting that the foodstuff possesses special characteristics when in fact all similar foods possess such characteristics[2]; and
• by suggesting the presence of a particular food or ingredient through presentation, when in fact it is a food in which a naturally present component or ingredient has been substituted with another[3].

European Regulation (EU) No. 1169/2011 has a wide scope regarding food information to consumers. The Regulation applies to food businesses at all stages of the food chain. It applies to all foods intended for consumers, including foods delivered by mass caterers.

Article 8 of European Regulation (EU) No. 1169/2011 stipulates that the operator under whose name or business name the food is marketed, is responsible for providing the correct food information.  Operators within the business under their control may not modify the information accompanying a food if such modifications are likely to mislead the consumer or reduce consumer protection. Operations are responsible for any changes they make to food information accompanying a food.

List of mandatory particulars for prepacked food[4]

Article 9 of European Regulation (EU) No. 1169/2011 contains the basic list of mandatory particulars[5] for prepacked food:

• The name of the food

Every foodstuff must have a name. By means of the name the consumer knows what kind of product he buys or consumes. The name may be laid down in legislation. Or it can be a common name or a descriptive name. So-called ‘reserved designations’ are included in various European and Dutch regulations. Depending on the exact text of the regulation, these designations must be used for the foodstuff in question or they may be used.

• The list of ingredients

The list of ingredients shall mention the ingredients used in the preparation of the food. Ingredients shall be listed in descending order of weight. There are specific rules for the listing of “nano”-ingredients, additives, flavorings, compound ingredients and category names for certain ingredients. In a number of cases the list of ingredients is not compulsory or does not have to be listed in descending order of weight.

• Any ingredient causing allergies or intolerances used in the manufacture or preparation of a food

Correct information about allergens in a foodstuff is essential for consumers. Incorrect information can even lead to a life-threatening situation. There is an EU-list of 14 allergens that must always be mentioned and highlighted when they are present in food. This highlighting of an allergen must also be done if the allergen is present, for example, via a carrier for an additive. Allergens must not be repeated in a separate ‘allergen box’. The labelling of allergens that are present via cross-contamination is not yet regulated by European Regulation (EU) No. 1169/2011.

• The quantity of certain ingredients or categories of ingredients (“KWID”)

KWID is the declaration of the quantity of an ingredient or category of ingredients used in the preparation of a prepacked food. This quantity of the ingredient must be declared if the ingredient is emphasized in any way, for example by being mentioned in the name or by means of an image. The quantity shall be indicated as a percentage.

• The net quantity of the food

The net quantity shall be indicated on the label in the same field of vision as the name and the alcoholic strength where appropriate. The net quantity may also be replaced by another quantity indication, such as the average quantity expressed by the “e” symbol. In that case, this other quantity indication shall be regarded as replacing the net quantity.

• The date of minimum durability or the ‘use by’ date

Perishable food must be marked with a use-by date. After this date, the product is unsafe for consumption. All other foodstuff must bear a date of minimum durability. After this date, the product may no longer have the guaranteed quality, but can usually still be consumed. Prepacked frozen meat and fishery products must be marked with a date of (first) freezing if they have been frozen more than once.

• Any special storage conditions and/or conditions of use

In cases where foods require special storage conditions and/or conditions of use, those conditions shall be indicated.

• The name or business name and address of the food business operator

Each food must bear the name and address of a manufacturer, trader or importer so that the consumer can contact the company concerned.

• The country of origin or place of provenance

European Regulation (EU) No. 1169/2011 contains rules for so-called “mandatory” and “voluntary” origin labelling. “Compulsory” origin labelling applies if its omission could mislead consumers as to the true country of origin or place of provenance of the food. In addition to European Regulation (EU) No. 1169/2011, there are a number of European regulations that include mandatory origin labelling for specific products, such as for fresh, chilled or frozen meat from pigs, sheep, goats, or poultry and for products such as olive oil and honey. “Voluntary” origin labelling refers to the situation where the country of origin or place of provenance of the food is voluntary indicated and is not the same as the country of origin or place of provenance of the primary ingredient. In this case, specific rules apply for how this “voluntary” origin labelling should be indicated.

• Instructions for use where it would be difficult to make appropriate use of the food in the absence of such instructions

The instructions for use of a food shall be indicated in such a way as to enable appropriate use to be made of the food.

• With respect to beverages containing more than 1,2% by volume of alcohol

Beverages containing more than 1.2% alcohol must be clearly labelled with the percentage of alcohol.

• Nutritional declaration

On all prepacked foods, a comprehensive nutrition declaration table is mandatory with at least information on 7 nutrients: energy, fat, saturated fatty acids, carbohydrates, sugars, protein and salt. Detailed rules for repeating the nutrition declaration on the front of the package have been established and may not be deviated from.

On prepacked foods, mandatory food information must be provided directly on the package or on a label attached thereto. Under Article 12 of European Regulation (EU) NR. 1169/2011, the legally required information must be available and easily accessible for all prepacked foods. In addition, Article 3 of the Commodities Act Decree on Foodstuffs Information (“WIL”) requires that the mandatory food information on labels for the Dutch market is at least in the Dutch language.

Also, in the context of traceability, it must be possible to identify the production batch of each foodstuff. This identification must be done by means of a lot code.

Enforcement by the NVWA

The NVWA is the designated authority for the enforcement of food law and therefore also for the enforcement of food labelling rules. Food safety, misleading actions and correct information are priorities for the NVWA. For example, correct information about allergens is an important point of attention for the NVWA. In its Handbook, the NVWA states that the choice for enforcement is based on a risk assessment for the health of consumers, also taking into account the risk of misleading the consumer or the risk of the non-compliance with legislation.  

For this purpose, the NVWA uses the General Intervention Policy. This intervention policy describes the method or working method by which the NVWA determines the intervention to be applied, linked to the seriousness of the violations and to the risks associated with the process and/or the product with which the company or person concerned is involved. The NVWA believes that when assessing a violation and determining the appropriate intervention, the following should be taken into account:

• the possible consequences of the violation;
• the circumstances under which the violation was committed;
• the behavior of the violator;
• the history; and
• the principles of subsidiarity and proportionality.

The basic principle for the enforcement of the Commodities Act and the regulations based on it is that violations are dealt with under administrative law. This means that these violations are usually enforced by means of an administrative fine and not through criminal law. The NVWA has developed a specific intervention policy for various sub-areas, including the Specific Intervention Policy on food information. In general, the following administrative measures are imposed for infringements of labelling rules:

• a written warning;
• assistance for the enforcement;
• corrective intervention;
• withdraw the product from the market and warn the public (recall); and/or
• administrative fine.

Impact for (food) businesses

The Handbook of the NVWA is published as a guideline for businesses in order to comply with the legal obligations concerning the labelling of prepacked food. If a company does not comply with the aforementioned legislation and regulations, this may have considerable (financial) consequences for the company. For the above reasons, it is therefore advisable to seek (legal) advice in good time in order for the company to ensure that the label on the food package complies with the labelling requirements.

About Ploum’s International Trade, Customs and Food Safety & Product Compliance team

The specialists of our International Trade, Customs and Food Safety & Product Compliance team will be happy to advise you on this topic or on other issues regarding International Trade, Customs or Food Safety law. Thanks to our many years of experience in the food (safety) and commodities practice, we can serve you quickly and effectively. If you have any questions on this topic or on other issues regarding International Trade, Customs or Food Safety law, please contact one of our team members or contact Marijn van Tuijl (m.vantuijl@ploum.nl).