Guest article

Ukraine war, food reformulation and labelling: What is your legal status?

Here's what you need to know about labelling when substituting ingredients / Pic: GettyImages-WeAre
Here's what you need to know about labelling when substituting ingredients / Pic: GettyImages-WeAre

Related tags Labelling

As the Ukraine invasion disrupts supply of key commodities in Europe, legal expert Katia Merten-Lentz looks at the option of substituting ingredients and asks what this means for labelling and the legal status of your products.

With its significant production of wheat, corn, barley and sunflower oil, Ukraine's agribusiness is one of the largest in the world. As such, the country accounts for 50% of global exports and 90% of European imports of sunflower oil.

However, because of the war, Ukrainian authorities have introduced quotas on some exports. These quotas have had an immediate effect on food companies in the European Union. Due to the shortage of certain ingredients, food business operators have had to find substitutes for their recipes. Given the strict European labelling and food safety rules, changing an ingredient is not trivial.

FIC Regulation doesn’t have emergency provisions

In the European Union, Regulation 1169/2011 on food information to consumers (“FIC Regulation”) sets the general principle of EU food law. The Regulation seeks to guarantee consumers their right to information by establishing the general principles, requirements and responsibilities for the labelling of foodstuffs they consume.

The foundation of the Regulation is to enshrine consumer information, food safety and transparency throughout the food chain.

Regrettably, the FIC Regulation does not have any emergency measures set in place to deal with food supply crises, which means that companies can find themselves in a grey area. Due to the current situation, food companies have encountered difficulties in the production of certain foods, notably due to a shortage of sunflower oil. As a result, food business operators have omitted or, in most cases, substituted, ingredients from the recipe. For instance, sunflower oil has been replaced with palm or soybean oil.

Substituting ingredients without labelling is a breach of the FIC Regulation. Not only the ingredient list will no longer be accurate, but there could be a risk for consumers.

Member States allow some flexibility

In the absence of any force majeure clause, it is up to national authorities to adopt measures allowing food business operators to derogate from the FIC Regulation. They seem to have taken stock of these issues and several Member States have allowed temporary derogations. 

The Irish Food Safety Authority was one of the first to issue guidance on food labelling flexibility.  It considers that, given the stakes, the use of additional stickers is an acceptable option in the short term, provided that such information is clear and intelligible and does not compromise the safety of the consumer. The authority foresees that food business operators must review their HAACP plans and make necessary adjustments to address potential hazards where ingredients have been substituted.

In France, the DGCCRF recently announced that some flexibility would be allowed in the implementation of labelling requirements. In case the substitute would present a risk to the consumer (such as allergens), the ingredient substitution must be directly informed on the label. This also applies to products where the claim would no longer be respected, such as "GMO-free" or "organic".  For other products, operators wishing to reformulate a recipe must apply to the DGCCRF for an exemption. They will have two months from 26 April to put the word "DEROG" on their packaging.

The authorities, therefore, make a clear distinction between substitutes that could harm consumers and others, by enforcing stricter measures for the former. This flexibility is necessary to ensure timely responses to protect European businesses, provided, of course, that consumer safety is always respected.  

Katia Merten-Lentz is Partner and Founder Food Law Science & Partners, an international boutique firm for technical and legal food and feed matters with offices in Brussels and Paris.

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