A currently discussed topic in the area of food law in the EU competent authorities is, among others, the issue of the revision 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 (“Regulation 1169/2011”).
This follows in particular the European Commission’s initiative under its published 2020 “Farm to Fork.” strategy. This focuses on protecting biodiversity, aiming, among other things, to change European rules on the labelling of food with use-by and minimum durability dates, to be achieved by 2022, in order to reduce food waste.
As part of the revision of Regulation 1169/2011, one of the proposed changes is to the use-by date and date of minimum durability.
In the following article, we would like to introduce the fundamental difference between the “use-by date” and the “date of minimum durability” of foodstuffs from the perspective of the current legislation and outline the possible implications of the proposed revision of the EU legislation regulating this area.
The use-by date is used for foodstuffs which, by their nature, are more perishable and must therefore be consumed quickly. These foods typically include, for example, yoghurt and other dairy products, fresh meat and other fresh foods where this date represents the latest date until which it is safe to consume the food without exposing the consumer to the risk of food-borne infection.
The use-by date on selected foods shall be indicated by the words “Use by…” followed immediately by either the date itself or a reference to where the date can be found on the label or packaging of the food.
If a particular food is labelled with an expiry date, the manufacturer must also indicate on the packaging the storage conditions that must be observed (e.g. “Keep refrigerated” or “Store at 2-4 °C”) to clearly signal to the consumer that otherwise the food will spoil more quickly and risk food poisoning.
For the aforementioned food labelling, the general rules of Regulation 1169/2011 apply, i.e. all indications must be comprehensible to the consumer, prominently displayed, easily legible, not obscured or interrupted by other indications, indelible and expressed in a non-coded form.
As a consequence of the use-by date, these foods are no longer considered safe and must therefore not be placed on the market.
On the basis of the relevant provisions of Act No. 110/1997 Coll., on Food and Tobacco Products, as amended, the competent supervisory authority may impose a fine of up to CZK 50,000,000 on the food business operator for any prospective breach of this prohibition.
Date of minimum durability
The date of minimum durability is used to indicate foods that do not spoil as quickly as those referred to above. Examples include pasta, rice, coffee, tea, chocolate, canned, dried, frozen and other long-life foods, where the date of minimum durability represents the date until which the food retains its declared quality under the conditions of storage.
This indication may be distinguished from the use-by date by stating “Best before …” or “Best before end of …”, followed again either by the date itself or by a reference to the place where the date appears on the label or packaging. These indications shall then be supplemented, where appropriate, by an indication of the necessary storage conditions which will ensure the quality of the foodstuff for the minimum durability period indicated, subject also to the general rules under Regulation 1169/2011 as described above.
In principle, although these foods may lose their original taste and texture, they can still be safely consumed after the stated date of minimum durability, provided that the explicit storage instructions are respected and that the packaging is not damaged. However, in many cases, consumers, not knowing the difference between the use-by date and the date of minimum durability, throw away expired food without any objective reason.
In this context, it is also necessary to point out the difference in the regulation of the handling of food by food business operators, which provides legal frameworks for the possibility of continuing to place foodstuffs with passed date of minimum durability on the market, provided that they are health-safe and transparently marked as expired and placed separately from other foodstuffs, while the mere labelling with the words “discount” or “action” can in no case be considered sufficient. The responsibility for the wholesomeness of expired foodstuffs rests entirely with the seller.
If food which has passed its date of minimum durability is safe, the food business operator may also provide it free of charge to a non-profit organisation which collects, stores and distributes the food free of charge to public beneficial legal entities providing food aid.
In general, the proposed amendments to Regulation 1169/2011 in the area of food labelling focus on the following areas:
- the introduction of harmonised and mandatory nutrition labelling on the front of packaging and the establishment of criteria for ‘nutrient profiles’, i.e. nutrient thresholds above or below which nutrition and health claims on foods are restricted;
- the extension of mandatory origin data to selected products;
- the introduction of a mandatory list of ingredients and nutritional information for all alcoholic beverages; and
- the revision of EU rules on use-by date and date of minimum durability labelling.
In order to comprehensively assess the appropriateness and impact of the different options for amending the rules on best-by and minimum durability dates, the European Commission has already carried out a survey to:
- better understand how current data labelling rules influence consumers’ decisions to consume, use and throw away food;
- identify new ways of expressing labelling data (e.g. in terms of terminology, format, visualisation, etc.) that meet safety requirements while minimising food waste;
- test the effectiveness of these new ways of expressing data in the context of possible misunderstanding of meaning by consumers.
The crucial question that arises here is whether it is desirable to seek the complete abolition of the (unnecessarily confusing) minimum durability date for foodstuffs, or whether it is only appropriate to regulate this marking in a legally binding way so that consumers are told in a sufficiently clear and comprehensible way that durable foodstuffs can still be consumed.
This could be done, for example, by adding to the existing designation the addition “After this date it is usually still compliant.” or “This product can often be consumed after this date.” or “…then check appearance, smell, taste.” or by replacing it entirely with the text “Best quality until…” or by introducing distinctive colour and graphic differentiation from the use-by date.
For example, the Food Chamber of the Czech Republic (hereinafter referred to as the “FCC”) is of the opinion that any introduction of a new label or logo on food packaging needs to be properly evaluated. Although the FCC acknowledges that the current labelling may not be clearly defined for the consumer, it notes that this system has been long established in society and therefore, if any additions to the labelling are proposed, the wording must be as short as possible, feasible for the producer and concise, clear and, above all, meaningful for the consumer so that they can understand the labelling. At the same time, the FCC prefers a rather massive, educational campaign in all media to raise awareness of the current labelling rather than introducing new, more complex requirements.
At the same time, food collections in charitable organisations, shelters and similar institutions, where durable products are sent after the date indicated on the packaging, could be affected by the complete abolition of the minimum durability date, and therefore it will be necessary to consider the proposed revisions also with regard to the donation of food for charitable purposes, i.e. In order to avoid, paradoxically, ultimately wasting food when it is not clear whether or not non-perishable foodstuffs can be donated using the above procedure.
Consultation activities, including targeted surveys and interviews with interested organisations and EU Member States’ authorities, will now be followed by the competent authorities. A concrete proposal for the revision of Regulation 1169/2011 can then be expected by the end of 2022.
As described in more detail above, it is currently unclear whether the EU initiative will lead to a complete abolition of the date of minimum durability or only to a partial modification of the labelling of non-perishable foods so that its meaning is clear and understandable to consumers.
However, in any case, in order to reduce food waste, it is already advisable to focus on educating and enlightening the consumer public in order to raise their awareness of the use-by and minimum durability dates.
We will continue to monitor the development of the legislative process and its possible impact on Czech legislation.
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. Jakub Málek, partner – email@example.com
Mgr. Tereza Dvořáková, attorney-at-law – firstname.lastname@example.org
22. 12. 2021