Published yesterday (26 September), the notes do not create any new rules to stamp out the issue dual quality but offer guidance to help consumer and food safety authorities determine whether a breach in existing EU law has taken place and, where possible, act to enforce the law.
In addition to the guidance notes, the Commission has also released €1m in funding to the Joint Research Centre (JRC) to develop a methodology that will improve comparative tests for food products. This will allow countries to discuss the issue “on a sound and shared scientific basis that is the same for all”, it said.
Another option being explored, the Commission said, is a Code of Conduct for producers which would set out standards to be respected to prevent dual quality problems, although FoodDrinkEurope (FDE), the lobby which represents the interests of European food and drink manufacturers, said it has not committed to a creating a code "as such". It has agreed to engage in a multi-stakeholder dialogue, which is "essential for all to assess the situation and understand what is clearly expected of us", spokesperson for FDE Florence Ranson said. "A form of code of conduct may or may not be the outcome but the dialogue is key to finding the right way forward.”
The guidance comes on the back Commission President Jean-Claude Juncker’s State of the Union speech earlier this month in which he promised action.
"I will not accept that in some parts of Europe, people are sold food of lower quality than in other countries, despite the packaging and branding being identical," Juncker said. "We must now equip national authorities with stronger powers to cut out any illegal practices wherever they exist."
Industry has defended changes in recipe formulations across regions, citing a number of reasons from catering to regional preferences to using locally sourced raw materials.
But the issue has been increasingly seen as a way food manufacturers treat Eastern Europeans as second-class citizens. Bulgarian prime minister Boyko Borissov slammed it as “food apartheid” while Czech agriculture minister Marian Jurečka said it was “unacceptable and discriminatory”.
A case-by-case basis
The guidance advises authorities to use three pieces of EU legislation to tackle the issue of dual quality: the General Food Law Regulation, Food Information to
Consumers Regulation and the Unfair Commercial Practices Directive.
The Commission notes that manufacturers are legally allowed to vary the ingredients of a branded product for different countries as long as the ingredients are clearly indicated on the label.
However, a product would be breaching the EU’s Unfair Commercial Practices Directive (2005/29/EC), for instance, if the authority can demonstrate three factors.
Firstly, if consumers have “legitimate specific expectations” from a product compared to a ‘product of reference’ and this significantly deviates from these expectations.
Secondly, if the manufacturer fails to provide sufficient information, meaning consumers cannot understand that a difference with their expectations exists.
And thirdly, if this lack of information could lead consumers to buy a product they would not have bought otherwise.
‘A step in the right direction’
Food law expert and managing director of Hylobates Consulting, Luca Bucchini, said the guidance is a step in the right direction, and the Commission should be praised for being proactive in dealing with this "tricky issue".
Importantly, the guidance also provides a framework for enforcement authorities to act, Bucchini said. "Much of the issue stems from the fact that national authorities have been incapable or unable to build legal cases showing that consumers were misled.”
An EU authority with enforcement powers, such as in the case of anti-trust law, would help, he said, "but the Commission is doing its best in the present situation".
“The key is whether the consumer is buying product X because he or she believes it has the same formula everywhere in the EU. When she is alerted that is not the same, then the misleading factor should be gone.”
“The guidance correctly implies that no further legislation is required. It also focuses the attention on the key aspect: if the consumer was informed of the differences, would she or he still buy the product? Would a Hungarian consumer still buy internationally famous snack X if it carried a label saying ‘adapted to Hungarian taste’?
Whether the guidance results in companies being taken pursued by national authorities for breaching EU food law remains to be seen. In the meantime, Bucchini advises food businesses to "take notice".
"If they use exactly the same formula across the EU, there could be a market opportunity. Second, they should perform an honest self-assessment, and consider some label changes.”
But Bucchini warned: “Having multilingual labels which suggest the same product is sold across markets (for example, with German and Hungarian), where in reality it is not (Hungary only) may be considered suspicious.”
Meanwhile, a market for parallel sales could open up for "enterprising" food business operators who add a 'German recipe version' to Eastern European products, Bucchini suggested.
Next month the Commission will take part in a high-level ministerial Consumer Summit on dual quality food in Bratislava. It is also organising workshops with consumer protection and food safety authorities in September and November.