On 1 April 2020, new EU rules on how and when a foodstuff must be labelled with the origin of the primary ingredient(s) took effect. The purpose of the new rules is to prevent companies from presenting food in a way implying that a product originates from a specific country/region while the product's primary ingredient(s) has a different origin.
The new rules
Misleading information about the origin of a product is prohibited under Swedish marketing law. The new rules clarifies what constitutes misleading origin labelling of food. The rules come under what is known as lex specialis in relation to the Swedish Marketing Practices Act (2008:486). This means that the new rules prevail over the more general provisions of the Marketing Practice Act.
A need to supplement the general regulation on misleading marketing with specific provisions on food information for consumers has been identified at EU level. This has led to the European Parliament and the European Council’s adoption of regulation no. 1169/2011 of 25 October 2011 on the provision of food information for consumers (Food Information Regulation).
The Food Information Regulation contains provisions on when an indication of the country of origin or of the place of provenance of the product's primary ingredient should be provided (Article 26.3 of the Food Information Regulation).
The application of this rule is subject to adoption of implementing acts by the EU, which was laid down through the European Commission’s implementing regulation no. 2018/775 of 28 May 2018 (Implementation Act). The Implementation Act applies from 1 April 2020. The European Commission has now published questions and answers for guidance on how to apply the new rules.
What do the new provisions mean?
There is a difference between the origin of the food and the origin of the ‘primary ingredient’.
There are two different ways to determine what constitutes the primary ingredient of food. The first is a quantitative criterion, according to which the primary ingredient is an ingredient or ingredients of a food representing more than 50% of the food. The second is a qualitative criterion, according to which the primary ingredient is the ingredient which is usually associated with the name of the food by consumers (Article 2 (2) (q) of the Food Information Regulation).
If the origin of the food is not the same as the origin of the primary ingredient, the origin of the primary ingredient must also be given. Alternatively, the origin of the primary ingredient must be indicated as being different to that of the food, for example by writing "[The name of the primary ingredient] does not originate from [the country of origin or place of provenance of the food]" (Article 26 (3) of the Food Information Regulation).
For instance, if a yoghurt is marketed as originating from country X but is made with milk from country Y, this should be indicated on the packaging. Information about the origin of the food and the origin of the primary ingredient (the milk) must be clear and appear in proximity to each other.
The rules are applicable if the origin of the food is indicated through statements, terms, images, symbols or concepts that refer to a place or a geographical area. This likely includes visible flags, maps referring to a particular geographical area or known national monuments, landscapes or people.
The overall objective of the rules is to ensure consumers are not confused about the origin of the food. How the labelling is perceived by the consumer is therefore crucial to assessing whether or not the labelling of the food contains information about the origin of the food. Packaging of food with an overall design indicating that the product has a certain origin (even if not explicitly stated in the text on the packaging) must therefore include clear information that the primary ingredient(s) has a different origin if that is the case.
Exception to the main rule
The rules exclude customary and generic names, including geographic terms that indicate origin but whose common understanding is not an indication of origin or provenance of the food, such as Frankfurter sausages. The assessment of whether a geographic term is perceived as a customary/generic name will be decided on a case-by-case basis. This is because the name may be understood differently in different member states. Thus, a particular term may be perceived as a customary/generic name in one country and as an indication of origin in another.
It is worth mentioning that, pending the adoption of specific rules, the Implementation Act does not apply to geographical indications protected under EU law and registered trademarks. A food bearing such a protected geographical indication/registered trademark may, however, be subject to the new rules if the food is labelled with other visual information referring to the same or other geographical areas. Since it is not possible to register trademarks that only consist of the origin of the product, there should be relatively few examples of registered trademarks that are temporarily excluded from the new regulations.
The new provisions help to further harmonise the rules on how food should be labelled in the EU, while also taking account of any differences between countries in how consumers may understand a specific type of labelling.
Setterwalls continually assists clients operating in strictly regulated industries, and we often work in the crossover between regulatory law and market law. We will be happy to assist you with an assessment of what applies for your own or your competitors’ labelling. If you have any questions regarding marketing or related matters, please do not hesitate to contact us.