The Ministry of Agriculture, respectively the State Veterinary Administration (SVS) and the State Agricultural and Food Inspection Authority (SZPI), have issued an opinion with effect from 1 July 2022, which specifies in more detail the method of voluntary labelling of food with “no E” or “no added E” and statements with similar meaning (hereinafter referred to as the “Opinion“).
In the following article, we would like to inform you about the legal regulation of food labelling, in particular in the context of the conditions mentioned in the Opinion in relation to the voluntary labelling of food with “no E” or “no E added” and statements with a similar meaning.
The Opinion in question combines the issue of the presence of approved food additives, including extracts, under Regulation (EC) No. 1333/2008 on food additives (“Regulation 1333/2008“) and labelling rules under Regulation (EU) No. 1169/2011 on the provision of food information to consumers (“Regulation 1169/2011“). Both Regulations are directly applicable provisions of European Union law.
The primary objective of the Opinion is to clearly and unambiguously define the conditions of addition or natural occurrence of food additives that a food must meet for the above-mentioned labelling. It does so in accordance with Regulation 1169/2011 and with a view to ensuring that the labelling is not considered misleading and does not mislead the average final consumer as to the characteristics of the food and in particular its nature, composition, properties or method of production. In this context, the purpose of the Opinion is to ensure that the information provided to the final consumer is comprehensible so that he can make an informed choice on the basis of it.
Regulation 1333/2008 defines a food additive as a substance which is neither normally intended for consumption as a food nor normally used as a characterising ingredient of a food, whether or not it has nutritional value.
Deliberate addition of an additive to a food for a technological reason during manufacture, processing, preparation, treatment, packaging, transport or storage has or is likely to have the effect of making that substance or its by-products, directly or indirectly, a constituent of that food.
Food additives, including extracts fulfilling the definition of a food additive, may be used in food only if they are included in the list of approved additives in Regulation 1333/2008 and the conditions for their use laid down in that Regulation are met.
The general conditions for food labelling are laid down in Regulation 1169/2011, which also establishes basic legislation to ensure a high level of consumer protection in relation to food information and general principles, requirements and obligations in the field of food information and in particular food labelling.
According to the Opinion, it is categorically forbidden to label a food with the words “no added E” and a statement with a similar meaning or “no added E” and a statement with a similar meaning in accordance with the requirements of Regulation 1333/2008 and Regulation 1169/2011 if:
a) a food additive is added to the product; or
b) the food additive has entered the compound food by the principle of transfer from the food ingredient, whether or not it performs a technological function in the final product.
In this context, it should be noted that the information e.g. “without preservatives” and similar statements cannot be given even if the food additive is used in the food for another main technological function but also has a (secondary) function in the food, in this case a preservative function (e.g. an additive is used in the product as an acidity regulator but also has preservative effects).
Furthermore, according to the Opinion, it is not possible to label a food with the words “no added E” or a statement with a similar meaning if the technological process of food production is set up in such a way that during its production substances are deliberately produced that have the same technological effect as additives in order to replace food additives with the same technological effect, or if such food was used in the production (e.g. during fermentation or when free glutamic acid or lactic or acetic acid is produced in the bread leaven and performs the same technological function as glutamate in the food).
On the contrary, according to the Opinion, it is permissible to label a food with the words “no added E” and a statement with a similar meaning or “no added E” and a statement with a similar meaning in two cases, namely if:
a) there are naturally occurring substances in the food which are similar in chemical composition to additives but which do not deliberately fulfil a technological function – these substances may also arise during a technological process, e.g. ageing, etc., without being a deliberate substitute for a food additive with the same technological effect, or
b) no additives have been added to the food, but only raw material has been added in the form of a food ingredient, i.e. raw material fresh, frozen, dried, without further chemical intervention, which naturally contains substances identical to the approved additives (g.: fruit/vegetables naturally rich in benzoic acid, citric acid and other substances are used in the product).
Application of the Opinion
The Opinion will be applied by the relevant supervisory authorities to all products placed on the market in the Czech Republic from July this year, while the approach of supervisory authorities in other EU member states cannot be anticipated.
For the sake of completeness, it should be noted that the conditions described above according to the Opinion do not apply to foods with colouring properties, where the use of such substances and the related labelling of foods is governed by the European Commission’s “Guidance Notes on the classification of food extracts with colouring properties“.
Although in the case referred to above it is only an opinion of an informative nature, this document certainly represents a clear and transparent explanation and description specifying the issue of food labelling in the light of consumer protection under the above-mentioned EU regulations.
At the same time, we can expect the impact of the Opinion on existing Czech legislation in this context, which we shall continue to monitor and update you on.
If you have any questions about food labelling or other issues related to food law, we are at your disposal. Do not hesitate to contact us.
Mgr. Tereza Dvořáková, attorney-at-law – firstname.lastname@example.org
Mgr. Jakub Málek, managing partner – email@example.com
26. 01. 2022