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Analysis: EU rules on COOL may prove to be costly

This article is powered by EU Food Law

Following the introduction of a growing number of national measures on country-of-origin labelling (COOL), the European Commission held a public consultation on the draft proposal for a COOL regulation. Katia Merten-Lentz, of international law firm Keller & Heckman, takes a closer look at the proposal.

The European Commission’s COOL proposal covers rules on voluntary indication of the country of origin or place of provenance of the primary ingredient of a food where different to that given for that food.  Given the significance of the topic, many stakeholders have raised their concerns with regards to the proposed EU legislation.

The draft Commission Implementing Regulation lays down rules for the application of Article 26(3) of Regulation (EU) N° 1169/2011 on the provision of food information to consumers. This Article specifies that where the country of origin or the place of provenance of a food is given and where it is not the same as that of its primary ingredient, the country of origin or place of provenance of the primary ingredient in question shall also be given or indicated as being different to that of the food.

The proposed implementing regulation was open to comments during the public consultation from 4th January to 1st February 2018.

The feedback received from the interested stakeholders showed general support for the harmonised approach in the implementation of the origin labelling requirements envisaged by Regulation (EU) N° 1169/2011.

In fact, the Commission should have proposed this Implementing Regulation by 13 December 2013. But in the meantime, some Member States have enacted regulations for mandatory country-of-origin labelling on their territories based on Article 39 of Regulation (EU) N° 1169/2011. The latter permits adoption of “measures requiring additional mandatory particulars for specific types or categories of food” subject to justification.

National country of origin measures have often been blamed by the food and drink industry for trade-disrupting effects on the Single Market.

When Italy recently adopted rules on mandatory country of origin labelling for durum wheat pasta, rice, and tomatoes in tomato products, as well as rules on the mandatory indication of the place of production, FoodDrinkEurope – a trade association representing the European food and drink industry – filed an official complaint to the European Commission and called for “concrete and effective follow-up actions”.

Although the EU draft regulation sets rules on voluntary country of origin labelling, many consumer organisations and associations of agricultural producers would prefer such rules to be mandatory. The main argument here is that there is a strong demand from the consumer to be informed on where the food comes from.

It is evident that compliance with the draft Regulation, even in its current “voluntary” state, would unavoidably entail costs, most notably, associated with the change of labelling, adjustments in supply chain, storage practices/logistics, etc. The issue was already addressed in Article 47 of Regulation (EU) No 1169/2011 which sets out the requirement “to establish an appropriate transitional period for application of the new measures”.

The proposed Regulation would become applicable as of 1 April 2019. But as the measure will not be adopted before the second quarter of 2018, many in the food industry believe that the suggested transitional period could not be considered as “appropriate” and a longer transitional period will be needed.

As mentioned above, certain Member States introduced national measures. So, this new yet-to-be implemented regulation would add to other already existing national provisions.

For instance, France introduced a national origin labelling measure in January 2017 (Décret n°2016-1137 relatif à l’indication de l’origine du lait et des viandes utilisés en tant qu’ingrédient).

Consequently, FBOs are under an obligation to label the origin of milk used as an ingredient in milk products (above 50%) and the origin of meat used as an ingredient in processed food (above 8%). Although it is a temporary measure, which has been set for two years, a number of operators have modified their product labels.

ANIA (Association Nationale des Industries Alimentaires) – a trade association which represents the French food and drink manufacturing sector – stresses that additional changes to labelling requirements would be burdensome for the business, noting that it is “very complex and nearly impossible for operators to change their labels every 6 months/1 year”.

In conclusion, adoption of harmonised country of origin labelling rules might discourage Member States from introducing national measures, which results in additional costs when FBOs have to adapt their products for different markets. Alternatively, it could result in an additional burden for the industry and probably legal actions if the transitional period is not sufficient for the business to adapt and for the Commission to prepare necessary guidance in order to ensure uniform application of the new rules across all EU Member States.

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