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regulations are due to expire on 13 December 2018, when they will be repealed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
Perspectives, Issue 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
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