Spain adopts decree with a detailed list of substances that may be used in the preparation of food supplements

On 27 March 2017, Spain published in its Official Journal the Royal Decree 130/2018, of 16 March, which modifies Royal Decree 1487/2009, of 26 September, relating to food supplements (i.e., Real Decreto 130/2018, de 16 de marzo, por el que se modifica el Real Decreto 1487/2009, de 26 de septiembre, relativo a los complementos alimenticios, hereinafter, R.D. 130/2018). As a novelty, R.D. 130/2018 includes a detailed list of substances other than vitamins and minerals that may be used in the preparation of food supplements.

‘Food supplements’ are defined in Article 2(a) of Directive 2002/46/EC of the European Parliament and of the Council of 10 June 2002 on the approximation of the laws of the Member States relating to food supplements (as last amended by Commission Regulation (EU) 2017/1203) as “foodstuffs the purpose of which is to supplement the normal diet and which are concentrated sources of nutrients or other substances with a nutritional or physiological effect, alone or in combination, marketed in dose form, namely forms such as capsules, pastilles, tablets, pills and other similar forms, sachets of powder, ampoules of liquids, drop dispensing bottles, and other similar forms of liquids and powders designed to be taken in measured small unit quantities”. Directive 2002/46/EC only harmonises, at the EU level, the rules on labelling and on authorised vitamins and minerals and their forms. Important aspects in the marketing of food supplements, such as maximum and minimum levels of vitamins and minerals or the use of other substances, such as botanical extracts, essential fatty acids or fibre, are not harmonised at EU level.

Recitals 6 to 8 of Directive 2002/46/EC describe the original plan of the EU legislator. It acknowledged that there is a wide range of nutrients and other ingredients that might be present in food supplements, including, but not limited to, vitamins, minerals, amino acids, essential fatty acids, fibre and various plants and herbal extracts. As a first stage, Directive 2002/46/EC laid down specific rules for vitamins and minerals used as ingredients of food supplements. It was planned that specific rules concerning nutrients, other than vitamins and minerals, or other substances with a nutritional or physiological effect used as ingredients of food supplements would be laid down at a later stage, provided that adequate and appropriate scientific data about them became available. Until such specific EU rules are adopted, national rules concerning nutrients or other substances with nutritional or physiological effects used as ingredients of food supplements apply.

In accordance with Article 4(8) of Directive 2002/46/EC, the European Commission (hereinafter Commission), submitted, on 5 December 2008, a report to the Council of the EU and the European Parliament on the use of substances other than vitamins and minerals in food supplements. In that report, the Commission points out that, “in general terms, despite certain limitations, mutual recognition is a useful instrument for facilitating the free movement of the products concerned”. The Commission concluded that it did not consider it opportune to lay down specific rules for substances other than vitamins or minerals for use in food supplements. However, since substances other than vitamins or minerals, including substances derived from plants, are now being added to ordinary foodstuffs and not only to food supplements, the Commission does not rule out the possibility, at a later state, of carrying out supplementary analysis to the report, examining the conditions for the addition of these substances to foodstuffs in general.

Therefore, the principle of mutual recognition is extremely relevant for the marketing of food supplements in the EU. This means that a food supplement containing a certain substance may be lawfully placed on the market in one EU Member State and would subsequently have to be accepted by other EU Member States that still maintain more restrictive national legislation. However, the mutual recognition principle does not apply if the authorities of an EU Member State can successfully invoke the protection of health and life of humans as a reason to deny the marketing. However, this may only take place under strict conditions, including an in-depth risk assessment based on the most reliable scientific data available and on the basis of the most recent results of international research, which must show that there is a risk to health associated with a product, as well as proportionality.

In R.D. 130/2018, Spain argues that the conclusions of the Commission’s 2008 report, which indicated that mutual recognition was sufficient, were not shared by many EU Member States. In fact, in the absence of a perspective of harmonisation at the EU level, EU Member States have opted to establish lists of substances that may be used in the elaboration of food supplements. Substances other than vitamins and minerals are indeed subject to legislation at the national level. For instance, in Belgium, the Ministerial Decree of 19 February 2009 on the production and placing on the market of food supplements containing substances other than nutrients and plant or plant preparations (i.e., Arrêté ministériel du 19 février 2009 relatif à la fabrication et au commerce de compléments alimentaires contenant d’autres substances que des nutriments et des plantes ou des préparations de plantes), lists three substances (i.e., choline, carnitine, ubiquinone) for which the use in food supplements is subject to conditions. Italy lists various other substances, including caffeine, carnitine, creatine, lycopene, flavonoids and some enzymes, in the Health Ministry’s revised list (of November 2007) of nutrients and substances with a nutritional or physiological effect (i.e., Ministero della Salute: Altri nutrienti e altre sostanze ad effetto nutritivo o fisiologico, revisione novembre 2017). France has adopted an Order on 26 September 2016 establishing a list of substances authorised in food supplements for nutritional or physiological purposes (i.e., caffeine, carnitine, creatine, lycopene) and the conditions for their use (i.e., Arrêté du 26 septembre 2016 établissant la liste des substances à but nutritionnel ou physiologique autorisées dans les compléments alimentaires et les conditions de leur emploi, Version consolidée au 29 janvier 2018).

In this context, the elaboration in Spain of a national list of substances that may be used in food supplements has been considered necessary in order to ensure consumer protection, without undermining the competitiveness of national food companies in the EU market. Since the publication of R.D. 1487/2009, Spanish legislation on food supplements has focused on the use of vitamins and minerals as ingredients for their manufacture. Spain considers its legislation no longer sufficient, since today there are an estimated 400 different substances for the manufacture of these supplements. About 50 other substances, divided into eight new categories of ingredients for food supplements, have been introduced by R.D. 1487/2009: 1) Fatty acids; 2) Amino acids (and their salts of Na, K, Ca, Mg and HCl) and other nitrogen compounds; 3) Dipeptides and peptides; 4) Coenzymes; 5) Flavonoids and carotenoids; 6) Nucleotides; 7) Polysaccharides and oligosaccharides; and 8) Other substances (e.g., glucosamine (as sulfate or hydrochloride), wheat germ, pollen and brewer’s yeast). For these substances, maximum daily doses have been established and in some cases, warning messages need to be labelled like “not be consumed by pregnant or lactating women, nor by children” when astaxanthin of crustaceans and fish (category 5: flavonoids, carotenoids) are used.

In preparing R.D. 130/2018, Spain has taken the reports of the Scientific Committee for Food (SCF) and the European Food Safety Authority (EFSA) into account, as well as other bodies of recognised scientific authority. The safety of the substances and the doses established in R.D. 130/2018 have been evaluated by the Scientific Committee of the Spanish Agency for Consumer Affairs, Food Safety and Nutrition (i.e., the Comité Científico de la Agencia Española de Consumo, Seguridad Alimentaria y Nutrición), except for those that have traditionally been considered as dietetic or have been traditionally consumed in Spain, like royal jelly (i.e., jalea real, a honey bee secretion).

R.D. 1487/2009 has incorporated a new additional provision to expressly address mutual recognition: “The requirements of this royal decree shall not apply to food supplements legally manufactured or marketed in other Member States of the European Union, or products originating in the countries of the European Free Trade Association (EFTA) which are contracting parties to the Agreement on the European Economic Area (EEA), or to those States which have a Customs Association agreement with the European Union”. In this context, it should be stressed that, since 13 May 2009, refusals of mutual recognition are subject to the conditions laid down in Regulation (EC) No 764/2008 of the European Parliament and of the Council of 9 July 2008 laying down procedures relating to the application of certain national technical rules to products lawfully marketed in another Member State.

Besides the matter of ‘other substances’ in food supplements, there are two other major areas of regulation on food supplements in the EU that have not been harmonised: 1) Botanical substances; and 2) Maximum amounts of vitamins and minerals. ‘Other substances’ introduced by Spain’s R.D. 130/2018, do not specifically include permitted botanical substances in food supplements. Botanical preparations have a wide variety of applications and can fall under different regulatory regimes, depending on their intended use and presentation (e.g., as food supplements or medicines). The use of botanicals in food supplements may be subject to legislation at EU Member State level. Some EU Member States like Belgium, France and Italy have adopted lists of prohibited and/or authorised plants and plant parts in their legislation. Germany has developed a reference guide for authorities and food business operators. Most EU Member States do not have specific regulations on the use of botanicals. The second contentious matter is that of the maximum amounts of vitamins and minerals. Article 5 of Directive 2002/46/EC provides that maximum amounts of vitamins and minerals present in food supplements, per daily portion of consumption as recommended by the manufacturer, shall be set, taking the following into account: 1) Upper safe levels of vitamins and minerals established by scientific risk assessment based on generally accepted scientific data, taking into account, as appropriate, the varying degrees of sensitivity of different consumer groups; and 2) Intake of vitamins and minerals from other dietary sources. However, such EU harmonised minimum and maximum levels of vitamins and minerals have not yet been adopted.

In the absence of harmonisation, national rules and guidance apply in certain EU Member States, including 1) In the UK, Safe Upper Levels for Vitamins and Minerals of May 2003 by the Expert Group on Vitamins and Minerals; 2) In France, Decree of 6 May 2006 on nutrients to be used in the production of food supplements (i.e., Arrêté du 9 mai 2006 relatif aux nutriments pouvant être employés dans la fabrication des compléments alimentaires, Version consolidée au 17 avril 2018); 3) In Belgium, Royal Decree of 3 March 1992 on the placing on the market of nutrients and foods with added nutrients (i.e., Arrêté Royal du 3 mars 1992 concernant la mise dans le commerce de nutriments et de denrées alimentaires auxquelles des nutriments ont été ajoutés, modifié par A.R. du 24 avril 2014); and 4) In Italy, daily levels of vitamins and minerals allowed in food supplements by the Ministry of Health, revision of May 2017 (i.e., Apporti giornalieri di vitamine e minerali ammessi negli integratori alimentary, revisione maggio 2017). This tendency for EU Member States to ‘do it alone’, with restrictive individual maximum levels for vitamins and minerals in food supplements, may reportedly eliminate the therapeutic effect of vitamin supplements and have long-term negative impacts on consumers’ health.

Besides the matter of ‘other substances’ in food supplements, which has now been addressed in Spain, the use of botanical substances in food supplements and maximum amounts of vitamins and minerals in the EU are increasingly regulated by EU Member States, due to the lack of EU harmonisation. Clearly, this piecemeal approach does not do the EU Single Market justice. Only a coordinated approach and harmonised rules on the relevant issues would allow for the necessary degree of trade facilitation intended by EU law. All interested stakeholders should carefully analyse the relevant rules in EU Member States and reach out to relevant interlocutors in view of increased harmonisation efforts.

UK supermarket chain Iceland eliminates palm oil from its own-brand products – Does removing palm oil from food products really help the environment?

On 9 April 2018, Iceland Foods Ltd (hereinafter, Iceland), a British supermarket chain with an emphasis on the sale of frozen foods, including prepared meals and vegetables, announced its drastic decision to eliminate palm oil from all of its own-brand products. More specifically, on its website, Iceland states that, by the end of 2018, 100% of its own-brand food products would no longer contain palm oil. In recent years, palm oil has been at the centre of controversies for allegedly driving deforestation, putting wildlife in danger and having negative effects on human health. Iceland claims that its decision to remove palm oil from its products was based on environmental protection reasons alone, in an effort to stop deforestation. This simplistic and deceptive view falls short of addressing the many environmental questions that undoubtedly must be addressed on a global level. Singling out and discriminating against palm oil alone appears to be a marketing stunt, diverting attention from the real issues and based on a number of misleading assumptions.

Palm oil is an edible vegetable oil, which is extracted from the fruit of oil palm trees. The oil palm tree produces high quality oil used not only for cooking, but also as an ingredient in food products, detergents, cosmetics and biofuels. Palm oil is a very productive crop that produces a high quantity and quality of oil at a relatively low cost and that requires a smaller area of cultivation compared to other vegetable oil crops, such as rapeseed, soybean and sunflower (in terms of the same yield). Indonesia and Malaysia are the world’s most important palm oil producing countries. The use of palm oil in the food industry has increased rapidly over the last few years and increased demand of palm oil led to a growing number of oil palm plantations. However, environmental allegations with respect to oil palm cultivation, deforestation, and effects on wildlife often appear to be unsubstantiated misleading generalisations.

Anti-palm oil campaigns are not new. Marketing and labelling issues play an important commercial role in the EU and are starting to play an important role around the world. Recently, at the end of 2017, French supermarket chain Système U intensified its aggressive marketing campaign with respect to its decision to substitute so-called ‘controversial substances’, including palm oil. Similarly, already in 2012, the French supermarket chain Casinointroduced a ‘palm oil-free’ label on its own-brand products, claiming better nutritional quality. For several years, EU food business operators and retailers, particularly in Belgium, France, Italy and Spain, have increasingly been labelling a number of foodstuffs as ‘palm oil-free’ and continue waging related marketing campaigns with a denigrating agenda. This trend continues despite the arguable illegality of such labels within the EU (see Trade Perspectives, Issue No. 4 of 20 February 2015).

This trend now appears to have reached the UK. On 9 April 2018, the British supermarket chain Icelandannounced its decision to eliminate palm oil from all its own-brand products by the end of 2018 (currently half of its products do not contain palm oil). Iceland stated that its decision was part of its environmental commitments. More specifically, Iceland intends to stop deforestation in Indonesia and Malaysia and to protect wildlife. On its website, Iceland alleges that palm oil was one of the world’s “biggest causes of deforestation” and posed “a significant threat to a number of species already facing extinction”. According to Iceland, its decision to remove palm oil from its products, would lower the demand for palm oil by more than 500 metric tonnes per year. A small amount, considering that, currently, businesses in the UK import around 400,000 metric tonnes per year. Iceland’s Managing Director stated that until Iceland could “guarantee palm oil is not causing rainforest destruction, we are simply saying ‘no to palm oil’, we don’t believe there is such a thing as ‘sustainable’ palm oil available to retailers”. Iceland’s managing director underlined that the decision to eliminate palm oil was intended to provide consumers with a choice about what they buy. Iceland plans to replace palm oil with “oils and fats that do not destroy the rainforest”. Moreover and perhaps more disturbingly, in light of the legal arguments often provided in Trade Perspectives, Iceland also intends to attach a ‘no palm oil’ sticker on products’ packaging (see Trade Perspectives, Issue No. 23 of 12 December 2014 and Issue No. 4 of 20 February 2015).

Palm oil-producers and academics have expressed their disagreement with Iceland’s move. Palm oil-producing countries pointed out that the ban on palm oil was discriminatory and could further fuel the global campaigns of denigration against palm oil. Furthermore, palm oil-producing countries stated that replacing palm oil with other vegetable oils would actually increase the use of land to satisfy the global demand for vegetable oils. Such measure could thereby accelerate ground degradation, which could cause more flora and fauna damage and increase CO2 emissions. The Council of Palm Oil Producing Countries (hereinafter, CPOPC) stated that the claims against palm oil and the decision taken by Iceland were misleading consumers on the environmental benefits of other vegetable oils. Researchers from the Durrell Institute of Conservation and Biology (hereinafter, DICE) of the University of Kent published their concerns vis-à-vis Iceland’s decision, underlining that banning palm oil from products was actually a step backwards in the effort to prevent deforestation and to promote sustainability. Currently, researchers at DICE are working with palm oil certification bodies and companies to improve the way in which oil palm cultivation interacts with the environment. The work at DICE seeks to demonstrate the advantages of connecting high-quality rainforest patches in oil palm plantations to allow wildlife to move freely. If sustainability certification of palm oil became more widespread, this would benefit the environment a lot more than switching to other vegetable oils. According to the research at DICE, Iceland should work with the industry to find sustainably sourced solutions, highlighting that “[e]nvironmentally conscious consumers should demand palm oil from certified sources, but avoiding it altogether runs the risk of putting pressure on other crops that are equally to blame for the world’s environmental problems”.

The issue of sustainability is already being addressed by palm oil-producing countries, often in concerted efforts with the relevant industries and NGOs. Establishing sustainability certification and implementing such standards is the main tool to improve the environmental impact of palm oil production, as it is for all other forms of human activity that have environmental impacts. The statement by Iceland’s Managing Director that there was no such thing as “sustainable palm oil” clearly contradicts the important efforts already underway, such as the initiative in palm oil-producing countries (e.g., the Indonesian Sustainable Palm Oil (ISPO) and the Malaysian Sustainable Palm Oil (MSPO) standards), the concerted efforts within the CPOPC, and the initiatives by the Roundtable on Sustainable Palm Oil (RSPO).

Palm oil producers and palm oil-producing countries clearly recognise the need for improving the sustainability of palm oil production. The overall importance of environmental protection is also undisputed. However, discriminatory and denigrating measures taken with respect to one specific product, whether they are ‘private’ or ‘public’ in nature, clearly do not achieve the desired result. The small effect by Iceland’s action is already demonstrated by the neglectable amount it would remove from overall UK palm oil imports. A number of other products also impact the environment and, in many cases, probably more so than palm oil. Why is Iceland not taking action against those products? Is it perhaps because palm oil is an easy scapegoat and convenient target that is not cultivated in the UK or the EU? For instance, soy is one of the crop alternatives to produce vegetable oil. However, on average, eight hectares of soybeans are needed to produce the same amount of vegetable oil that can be achieved with one hectare of oil palm. Beef is another important example, the production of which also has a big impact on the environment. Cattle farms, are being accused of deforestation and of ever-increasing methane emissions contributing to climate change, but we do not see many campaigns of the type that are being waged in Europe against palm oil. Will removing palm oil from Iceland’s products help the environment? Clearly not, despite the rather hypocritical illusion that is being marketed by its proponents.

Another worrisome aspect of Iceland’s campaign concerns its intention to attach a ‘no palm oil’ sticker on its packaging. In principle, businesses are free to decide which kind of raw materials they use in their products, free to choose whether or not to use palm oil. However, waging denigrating marketing campaigns and attaching unauthorised labels to food products might violate the law. Since 13 December 2014, 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, the Food Information Regulation, FIR) provides that the specific vegetable oils must be indicated in the list of ingredients (see Trade Perspectives, Issue No. 23 of 12 December 2014). Any consumer can read in the list of ingredients whether a product does or does not contain palm oil, which can no longer be ‘hidden’ behind the generic term ‘vegetable oils’. Therefore, since the specific origin of the vegetable oil used in any given foodstuff must be declared, ‘palm-oil free’ claims are arguably unnecessary, irrelevant and illegal pursuant to Article 7(1)(c) of the FIR. When made in a nutritional context, or in case of accompanying further nutritional or environmental allegations, they often appear to be unsubstantiated misleading generalisations, and could also be considered misleading pursuant to Article 7(1)(a) of the FIR. Finally, ‘palm oil-free’ claims are arguably not permitted nutrition claims in the sense of Article 8(1) of Regulation (EC) No 1924/2006 of the European Parliament and of the Council on nutrition and health claims made on foods, which, for instance, allows the claim ‘saturated fat-free’.

Iceland’s decision to eliminate palm oil from its own-brand products is obviously legitimate as a company decision, but it is arguably a discriminatory form of denigration against palm oil and, in view of other products’ impact on the environment, such as soy or beef, clearly hypocritical. Efforts by palm oil producers and palm oil-producing countries should be recognised and encouraged by paying a premium for sustainable palm oil. Instead, palm oil is used as an easy scapegoat and denigrated as a whole. Legal avenues against misleading advertising and misleading food product labelling are available and should be considered to ensure that consumers are not deceived.

 Issue No. 8 of 20 April 2018

Another step against ‘palm oil-free’ labels – Members of the European Parliament call for a ban of certain misleading ‘free from’ labels

Another step against ‘palm oil-free’ labels – Members of the European Parliament call for a ban of certain misleading ‘free from’ labels

On 1 March 2018, the European Parliament’s Committee on Economic and Monetary Affairs (hereinafter, ECON) submitted its draft report for a European Parliament Resolution on the European Commission’s (hereinafter, Commission) annual ‘Report on competition policy’ to the European Parliament’s plenary. In the context of the adoption of the report by the Committee, it reportedly rejected an amendment tabled by an Italian Member of the European Parliament (hereinafter, MEP) that aimed at obliging “advertisers to declare or list only the characteristics of the ingredients actually present in the product and exclude those that are not contained therein unless the presence or absence of certain ingredients is related to congenital diseases”. While this report might not be the most pertinent choice to advance this issue, the struggle against anti-competitive, misleading and illegal ‘free from’ claims and labels, such as ‘palm oil-free’, has finally reached the European Parliament.

Every year, the Commission publishes a ‘Report on Competition Policy’, which provides detailed information on the most important policy and legislative initiatives, and on decisions adopted by the Commission in the application of EU competition law during the previous year. The Commission report is composed of two documents: 1) A Communication from the Commission; and 2) The Commission Staff Working Paper, describing the developments in more detail. Typically, the European Parliament uses this opportunity to comment on the Commission report through a resolution. The European Parliament’s ECON Committee is responsible for the preparation and consolidation of the resolution, in cooperation with further Committees of the European Parliament.

On 31 May 2017, the Commission had published the 2016 issue of the ‘Report on Competition Policy’. On 23 October 2017, the European Parliament’s Rapporteur for the Resolution, Ramon Tremosa i Balcells, submitted his draft report to the ECON Committee. The report will form the basis for the Parliament’s future resolution. On 28 November 2017, the Rapporteur published the amendments to the draft report. As Amendment 278, MEP Fulvio Martusciello of the Group of the European People’s Party, submitted the following addition to the report: “(protection of consumers against misleading or suggestive advertising) Calls on the Commission to oblige advertisers to declare or list only the characteristics of the ingredients actually present in the product and exclude those that are not contained therein unless the presence or absence of certain ingredients is related to congenital diseases”. On his website, MEP Martusciello noted that it was a joint initiative with MEP Alberto Cirio and published a joint statement. The two MEPs noted that the “the events of recent years related to some food products have made it clear that the large retail chains now tend to promote products by advertising not the ingredients they contain, but those they do not contain”. MEPs Martusciello and Cirio consider this to be a “very ambiguous practice that confuses the consumer and leads to deceptive purchases”. More specifically, the MEPs singled out ‘free from’ labels, such as ‘palm oil-free' or ‘GMO-free’, calling them “deceptive”. As MEP Martusciello notes on his website, his proposed amendment appears to have been adopted with 28 votes for it, 22 against it, and 5 abstentions. Reportedly, however, the amendment appears to have been eventually rejected by the Committee, when it voted on the adoption of the draft report on 21 February 2018. The consolidated draft of the report has not yet been made publicly available. The European Parliament’s plenary is scheduled to debate the report and vote on the Resolution on 16 April 2018.

Within the EU and beyond, there is an ongoing trend to label foodstuffs as ‘free from’, which is understood by many consumers as implying that these products constitute a healthier choice. An increasing number of products is labelled and marketed with the ‘salvation-promising’ word ‘free’: ‘lactose-free’, ‘fructose-free’, ‘gluten-free’, ‘GMO-free’ and ‘palm oil-free’. While certain ‘free-from’ claims are certainly beneficial for a range of consumers, such as those related to allergens or certain intolerances, others appear to be purely based on marketing priorities and campaigns. This has become a real trend in food marketing, suggesting that, as soon as something new appears, the food industry exploits it and helps spreading its supposed benefits, whether real or not. For a while, many food products were marketed as “light”, these days, products are increasingly labelled with ‘free-from’ claims. Food business operators and retailers are exploiting consumer’s concerns and fears, which are often based on rumours circulated about certain products, substances and ingredients.

Indeed, consumers in the EU do appear to be receptive towards such ‘free from’ claims and labels. A recent study, entitled ‘European consumer healthiness evaluation of ‘Free-from’ labelled food products’, tested four different ‘free-from’ labels, namely ‘lactose-free’, ‘gluten-free’, ‘GMO-free’, and ‘palm oil-free’, using different product categories on which these claims and labels typically appear. The study came to the conclusions that: 1) Products with a ‘free-from’ label are considered healthier than products without such a label; and 2) The strongest effects occurred for ‘GMO-free’ and ‘palm oil-free’ labelling. Noteworthy is that the study also confirmed an increased consumer willingness to pay a price premium for ‘free-from’ labelled products. The study showed that, in particular, French respondents were the most receptive to ‘palm-oil free’ and ‘GMO-free’ claims, and attributed this to French public debate and negative media coverage. Food labels are poised to influence and shape consumers’ food shopping behaviour. This change of behaviour must clearly be factored in when assessing the relevance and legality of certain ‘free from’ claims.

‘Free-from’ or ‘negative’ claims can be defined as claims indicating that certain ingredients, nutrients or substances are not present in a foodstuff. Legitimate uses of regulated negative claims in the EU, based on Regulation (EC) No 1924/2006 on nutrition and health claims, include some nutrition claims, such as ‘sugar-free’, ‘salt-free’, and ‘saturated fat-free’. Additionally, specific EU legislation exits for specific substances, such as Commission Implementing Regulation (EU) No 828/2014 on the requirements for the provision of information to consumers on the absence or reduced presence of gluten in food concerning ‘gluten-free’ claims. Certain EU Member States, such as France and Germany, have legislated on ‘GMO-free’ claims. Furthermore, a number of products on the EU market bear claims such as ‘no additives’, ‘no preservatives’ and ‘no artificial colourings’. Such so-called ‘clean label’ claims may be made as long as they are true and the use of additives in such foods is legal.

Article 7(1)(c) of 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) on fair information practices, provides that food information must not be misleading, particularly “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”. On the basis of Article 7(1)(c) of the FIR, voluntary information provided by food businesses on food products must not suggest 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. This provision of the FIR addresses the legal concept of ‘misleading advertisements with certainties’, which has so far been mostly applied in cases of so-called ‘clean’ labelling.

A particular case concerns the issue of labelling products as ‘palm oil-free’, the deceptive nature of which was also highlighted by MEPs Martusciello and Cirio. For a number of years, EU food business operators and retailers, particularly in Belgium, France, Italy and Spain, have been increasingly labelling a number of foodstuffs as ‘palm oil-free’ and continue waging related marketing campaigns with a denigrating agenda. This trend continues despite the arguably clear illegality of such labels within the EU (see Trade Perspectives, Issue No. 4 of 20 February 2015). Indeed, within the EU and since 13 December 2014, the FIR provides that the specific vegetable oils must be indicated in the list of ingredients (see Trade Perspectives, Issue No. 23 of 12 December 2014). The mere listing of the generic indication ‘vegetable oils’ is no longer sufficient. However, products claiming that they are ‘palm oil-free’ and containing instead sunflower oil, rapeseed oil or any other vegetable oil, now mandatorily indicated in the list of ingredients, are still promoted as something ‘special’. Compared to similar foods that possess the same characteristics (i.e., products containing sunflower oil or rapeseed oil, which is indicated by law in the labelling’s ingredient list), but without a ‘palm oil-free’ label, these ‘palm oil-free’ labelled products are in no way ‘special’. Any consumer is able to read in the list of ingredients whether a product does or does not contain palm oil, which can no longer be ‘hidden’ behind the generic term ‘vegetable oils’. Therefore, now that in the EU the specific origin of the vegetable oil used in any given foodstuff must be declared, ‘palm-oil free’ claims are arguably obvious, unnecessary, irrelevant and illegal pursuant to Article 7(1)(c) of the FIR.

The illegality of ‘palm oil-free’ claims and labels for other reasons has to be determined on a case-by-case basis. When made in a nutritional context, these ‘palm oil-free’ claims on foodstuffs are arguably not approved and, therefore, illegal nutrition claims under Regulation (EC) No 1924/2006. Similarly, in case of accompanying further nutritional or environmental allegations, they often appear to be unsubstantiated misleading generalisations, and could be considered misleading pursuant to Article 7(1)(a) of the FIR.

In general terms, not all ‘free-from’ claims and labels are misleading and some may be helpful for all or certain groups of consumers. MEP Martusciello did not call for an outright ban of all ‘free-from’ labels, but rightfully included an exception in his amendment, calling for a ban on ‘free-from’ claims “unless the presence or absence of certain ingredients is related to congenital diseases”. The exception of “ingredients related to congenital diseases” may be too narrow, which might have contributed to the rejection of the amendment. At the same time, the increasing number of such claims and the apparent illegality of, for example, ‘palm oil-free’ claims, continues to mislead consumers and distort their choices and competition. The consumer might consider to be purchasing something ‘special’, ‘better’ or ‘healthier’, while this is not the case. The recent introduction of a ‘palm oil-free’ trademark by the International Palm Oil Free Certification Accreditation Programme is poised to further aggravate this situation.

Despite the apparent setback through the rejection of the amendment supported by MEPs Martusciello and Cirio, the struggle against anti-competitive, misleading and illegal ‘free-from’ claims and labels continues. The Commission and EU Member States’ authorities must finally realise the damage that such claims and labels are responsible for, as recently underlined by the study on the effects of ‘free from’ claims on consumers. A better enforcement of the existing rules or even the amendment of relevant EU legislation, such as the EU’s Food Information Regulation, to make the ban of such claims more explicit, should be at the top of the agenda. Entire sectors, such as palm oil producers, are suffering under the illegal campaigns waged by some irresponsible EU food and retail businesses. All interested stakeholders should contribute to the debate on the issue and engage with the relevant interlocutors.