Bourdu, who works with Paris legal firm LEXT, was asked to look into the legality of ‘no palm oil’ labelling for a meeting organised by Food Facts last June, and she claims such labelling could be legally challenged under both French and EU law.
“My legal opinion is that it interests all producers of palm oil and all manufacturers of products that contain palm oil,” she told FoodNavigator.
In particular, she cites EU regulation No 1169/2011, which says food information shall not be misleading “by suggesting that the food possesses special characteristics when in fact all similar foods possess such characteristics, in particular by specifically emphasising the presence or absence of certain ingredients and/or nutrients”.
With this in mind, Bourdu says using ‘palm oil free’ labelling is “unacceptable from a regulatory point of view”.
What about consumer choice?
“I am personally in favour of giving the most information to the consumer as possible, not only with safety standards, but also how products are manufactured. That may also be a political choice for consumers to choose a product that is ‘green’,” she said.
However, she added that food companies could instead highlight their use of sustainable palm oil, or explain on-pack why they had chosen the specific vegetable oil in their product.
Bourdu insists that labelling something ‘palm oil free’ is different from labelling it ‘additive free’ or ‘preservative free’.
“The difference to me is that palm oil is a raw material rather than an additive,” she said.
International law firm Hogan Lovells has also argued that palm oil is different from artificial colours or preservatives because it is not an additive.
In a review of possible legal remedies available in Belgium and France, Hogan Lovells says that companies making a ‘no palm oil’ claim would need to justify it.
“It may be useful to know the identity of the oil in a product,” it says. “However, in the absence of evidence that a specific oil represents a risk to consumer health, inclusion of “no palm oil” claim front of label unjustly singles palm oil out and places emphasis on the absence of palm oil in the product in a manner that could be perceived as intended to communicate to the consumer more than mere information concerning the type of oil used.”