The UK might reconsider its approach to the labelling of alcoholic drinks – When may a beverage be labelled as ‘alcohol-free’ in Europe?

The UK’s definition of an ‘alcohol-free’ drink could change soon, with the UK Government currently conducting a public consultation on new regulations for the labelling of ‘low alcohol’ drinks labelling. Descriptors for ‘alcohol-free’ and low alcohol drinks are currently not harmonised at the EU level. As general EU food information rules do not define ‘alcohol-free’ drinks, the current legal situation in the UK and other EU Member States (i.e., Belgium, Germany and Spain) diverges due to a lack of harmonisation. Discussions and developments at the international level related to ‘alcohol-free’ and similar claims appear to contribute to this ongoing debate.
EU law does not define what ‘alcohol-free’ drinks are. Regulation (EU) No 1169/2011 of the European Parliament and of the Council of 25 October 2011 on the provision of food information to consumers (hereinafter, FIR). 9(1)(k) of the FIR merely provides that, with respect to beverages containing more than 1,2 % by volume of alcohol (hereinafter, ABV), the labelling of the product with the actual alcoholic strength by volume is mandatory. Additionally, Article 16(4) of the FIR establishes that a list of ingredients or a mandatory nutrition declaration are not mandatory for beverages containing more than 1,2 % ABV. In relation to ‘alcohol-free’ labelled drinks, the most important provision of the FIR is the general Article 7(1)(a), which provides that food information must not be misleading, particularly as to the characteristics of the food and, for example, as to its nature, identity, properties, and composition.
The UK’s Food Labelling Regulations (FLR) of 1996 set out rules on how ‘low alcohol’ drinks (those of 1.2% ABV or less) may be described. These rules on the use of low alcohol descriptors aim at protecting the public and informing consumers. The regulations are due to expire on 13 December 2018, when they will be repealed by the UK Food Information Regulations 2014. Until then, Regulation 42 and Schedule 8 of the Food Labelling Regulations 1996 are still in force for uses of the terms ‘alcohol-free’, ‘dealcoholised’, ‘low alcohol’ and ‘non-alcoholic’. Regulation 42 provides that the (‘misleading’) words and descriptions specified in Schedule 8 must not be used in the labelling or advertising of a food, except in accordance with the appropriate conditions set out in that Schedule. It lists four ‘low alcohol’ descriptors: 1) The description ‘alcohol-free’ must not be applied to any alcoholic drink from which the alcohol has been extracted, unless the drink has an ABV of not more than 0.05%; 2) The description ‘dealcoholised’ must not be applied to any drink, unless the drink, being an alcoholic drink from which the alcohol has been extracted, has an ABV of not more than 0.5%; 3) The description ‘low alcohol’, or any other word or description, which implies that the drink being described is low in alcohol, must not be applied to any alcoholic drink unless the drink has an ABV of not more than 1.2%; and 4) The description ‘non-alcoholic’ must not be used in conjunction with a name commonly associated with an alcoholic drink, except in the composite name ‘non-alcoholic wine’ when that composite name refers to communion or sacramental wine.
The UK’s Regulations contain a mutual recognition clause, which provides that the rules do not apply to food imported from an EEA State in which it was lawfully produced and sold, to food imported from an EU Member State in which it was lawfully sold, or to food produced outside the EU which is imported from an EU Member State, and that, in all such cases, is suitably labelled.
With its public consultation, which closed on 10 May 2018, the UK Government is assessing on how best to continue to communicate information to the public about ‘low alcohol’ drinks, so that consumers can make informed choices when they purchase drinks, including alcohol. The sale of ‘low alcohol’ drinks, as an option for consumers, intends to encourage responsible drinking. The UK Government also intends to use this consultation to receive views on whether it should introduce new descriptors for alcoholic drinks above 1.2% ABV to help consumers make an informed choice and to promote ‘low alcohol’ drinks. The UK Government believes that any future ‘low alcohol’ descriptors could be introduced through guidance rather than legislation.
In the UK, an ‘alcohol-free’ drink must have an alcohol graduation of 0.05% ABV or below. In other EU Member States, however, the term ‘alcohol-free’ may be used with products with higher alcoholic graduation. Such provisions are often set out in rules addressing specific alcoholic drinks like beer and wine. In Belgium, the Royal Decree on beer of 1 March 1993 (i.e., the Arrêté royal concernant la bière) provides in § 2 that the words ‘slightly alcoholic’ (légèrement alcoolisée in French) or ‘low in alcohol’ (pauvre en alcool in French) may be used as part of the sales denomination when the drinks have an alcohol content of more than 0.5% ABV and maximum 1.2% ABV.  § 3 provides that the indication ‘alcohol-free’ (sans alcool in French) may be used as part of the sales denomination when the drinks have a maximum alcohol content of 0.5% ABV. In Spain, the Royal Decree 678/2016 of 16 December 2016 approving the quality standard for beer and malt drinks (i.e.Real Decreto 678/2016 por el que se aprueba la norma de calidad de la cerveza y de las bebidas de malta) provides that beer, whose ABV is between 1% and 3%, may be denominated ‘beer with low alcohol content’ (Cerveza de bajo contenido en alcohol in Spanish), while beer with an ABV of less than 1 % may be denominated ‘alcohol free’ beer (cerveza sin alcohol in Spanish). In Germany, there is no such statutory limit and, in fact, 70% of consumers assume that ‘alcohol-free’ beer contains no alcohol at all, as shown by research conducted in the context of the project on Food Clarity (i.e.Lebensmittelklarheit) of the German federal consumer association (i.e., the Verbraucherzentrale Bundesverband and, hereinafter, vzbv). In June 2014, the vzbv and the German Brewers Association (Deutscher Brauer-Bund, DBB) agreed that breweries belonging to the DBB would voluntarily indicate the residual alcohol content in ‘alcohol-free’ beer. The decision of the DBB breweries was the result of a several-month dialogue between the vzbv and the DBB. ‘Alcohol-free’ beer may contain up to 0.5% ABV. This value has been established in § 47 of the German Wine Regulation (Weinverordnung) for wine and is now also applied to non-alcoholic beer as a generally prevailing public understanding (allgemeine Verkehrsauffassung).
At the international level, the Codex Committee on Food Labelling, in its 44th Session in Asunción, Paraguay, from 16 to 20 October 2017, addressed a Discussion Paper on Alcoholic Beverage Labelling. Although there does not appear much progress in this field, it must be noted that the FAO/WHO Coordinating Committee for Asia is also discussing the topic of ‘Standardization for Alcoholic Beverages in Codex’. Under the section on the ‘Proposed way forward’, the summary document of the 20th Session in New Delhi, India from 26 to 30 September 2016, reads that “To take into account the above the Commission could develop specific labelling provisions to be included in the future Codex standards on alcoholic beverages to reduce harmful use of alcohol and its impact on health of individuals and populations. This could best be done in a horizontal approach. In particular, new work can be undertaken by the Codex Committee on Food Labelling with regards to alcoholic beverages, addressing a claim for ‘alcohol-free’ product, labelling for alcoholic content and energy value, a generic public health warning, restrictions on nutrition and health claims, and possibly advertising (as relevant). These provisions would apply to all alcoholic beverages whether they have been standardized by Codex or not”.
Some drinks producers are calling for the UK’s definition of ‘alcohol-free’ to be raised from 0.05% to 0.5% ABV in order to remove confusion for consumers and to provide UK producers with a fair and level playing field since some EU imports at 0.5% ABV (from, for example, Belgium or Germany) or even at 1% ABV (from, for example, Spain) may be labelled as ‘alcohol-free’, while those currently produced in the UK may not and must instead use the terms ‘low alcohol’ or ‘de-alcoholised’. It should be noted that some German breweries produce ‘alcohol-free’ beer for the UK market with 0.05% ABV without resorting to the mutual recognition clause in UK law. However, UK consumer advocates intend to retain the distinction for drinks that are 0.05% ABV or under, saying that calling and labelling a drink with 0.5% alcohol ‘alcohol-free’ was “like giving a vegetarian a salad with some thinly cut ham”.?
The UK consultation document states that the popularity and sales of low and non-alcoholic drinks was on the rise with a 20.5% increase in sales over the past 12 months. Low alcoholic products may have fewer calories than regular strength alcohol drinks and could help reduce calorie intake as part of a healthy diet. The switch to lower and non-alcoholic beverages may have a positive effect in helping to achieve public health gains by reducing UK alcohol consumption and in helping to support people to move towards drinking less than 14 units a week, as outlined in the UK Chief Medicals Officers’ Low Risk Drinking guidelines published in 2016.
The UK maintains, so far, a different position and legislation vis-à-vis ‘alcohol-free’ drinks. Perhaps it will now ‘harmonise’ its approach towards that of major beer exporting EU Member States, such as Belgium and Germany. In that context, the outcome of the UK consultation on ‘low alcohol’ drinks and, possibly, new definitions for ‘alcohol-free’ and ‘low alcohol’ drinks, are of particular interest, also in view of ‘Brexit’ (see, for example, the discussion above and in previous issues of Trade PerspectivesIssue No. 4 of 23 February 2018), which will likely lead to less harmonisation between the EU and the UK. The international level within the Codex AlimentariusCommission may be a forum where further harmonisation measures could be introduced or discussed, in particular in view of promoting reasonable consumption of alcoholic drinks and public health objectives. Stakeholders in the alcoholic beverages sector are advised to carefully monitor developments and take action to ensure that their legitimate interests are voiced and represented within all relevant fora.

Ignacio Carreño, Tobias Dolle, Lourdes Medina Perez and Paolo R. Vergano contributed to this note