07 April 2020

From 1 April 2020, new EU rules took effect requiring food businesses to label foods with the country of origin or place of provenance of primary ingredients. These requirements, set out in Commission Implementing Regulation (EU) 2018/775, apply alongside existing rules in the EU Food Information Regulation (No. 1169/2011) (FIC).

In summary, if the origin or provenance of a product’s primary ingredient is different to the origin or provenance currently indicated on the label of a food, food businesses may now have to provide additional information on packaging regarding the origin of the primary ingredient or ingredients. The purpose of the rules is to ensure that consumers are not misled about the origin of a product’s ingredients.

Where do the new requirements apply?

The rules apply where food packaging already shows the country of origin or place of provenance of a product and that origin or provenance is not the same as that of the primary ingredient. Conversely, the new rules are not triggered if packaging doesn’t expressly state or imply a product’s country of origin or place of provenance, the origin or provenance of the primary ingredient is the same as the product, or if a product doesn’t have a primary ingredient.

What counts as an indication of origin or provenance?

Packaging will already show an indication of origin or provenance where:

  • Indicating a country of origin or place of provenance is mandatory under EU rules. Under FIC, this must be done where failure to indicate this might mislead the consumer as to the true country of origin or place of provenance of a food, in particular where the food’s packaging or marketing otherwise implies that the food has a different country of origin or provenance. Origin labelling is also mandatory under FIC for certain meat products including meat of certain swine, sheep, goats and poultry. Other EU legislation requires certain products to be labelled with their origin, e.g. eggs, honey and olive oil.
  • A business chooses to voluntarily indicate a product’s origin or provenance, as a marketing feature.

The new rules will apply where an indication of origin or provenance is given in any form, including in words, pictures and symbols such as monuments or flags. They also apply where products show statements such as ‘made in’, ‘manufactured in’ and ‘produced in’.

The new rules are not triggered where geographic terms are included in customary or generic names, where those terms literally indicate origin but where there is a common understanding that the use of the term is not an indication of the origin or provenance of the food. Examples of such products in the UK are ‘London Gin’ and ‘New York Bagels’. However, this carve out is based on consumer perception, so while ‘London Gin’ may not be considered an indication of origin in the UK, it may be viewed by consumers as such in another EU country.

Statements such as ‘packed in’ or ‘made by x for y’ or ‘produced by x for y’ followed by a business’ name and address are unlikely to be considered an indication of origin or provenance that trigger the new rules. Similarly statements such as ‘kind’, ‘type’, ‘inspired by’ or ‘taste of’ including a geographical statement would not in principle be considered as an origin indication. In addition, pending the introduction of further rules, the use of a protected name such as ‘Melton Mowbray Pork Pie’ or the use of a registered trademark which contains an origin indication would not alone trigger the requirement (although other information on the packaging regarding origin or provenance might).

EU guidance on the rules emphasises the importance of compliance with the general requirement in FIC to ensure that food information is not misleading. This means that products should be assessed on a case by case basis, taking into account information on the packaging as a whole, rather than applying blanket rules.

What is a 'primary ingredient'?

Under FIC, a 'primary ingredient' means an ingredient or ingredients of a food that represent more than 50 per cent of that food or which are usually associated with the name of the food by the consumer and for which in most cases a quantitative indication is required. This means that in theory, a product could have more than one primary ingredient. The onus is on food businesses to determine whether a product has a primary ingredient. 

For some products, working out whether there is a primary ingredient may not be straightforward and might give a slightly odd outcome. For instance, more than 50 per cent of the ingredients in a chicken and chorizo pie might be flour, making flour a primary ingredient, but chicken and chorizo may also be primary ingredients. Other products may not have a primary ingredient. For example, products such as multi fruit juices and muesli may not trigger the requirement due to the number of ingredients they contain and the fact that none of their ingredients are usually associated with the name of the food by the consumer. In light of these issues, it may be sensible for food manufacturers to document the reasons for their decisions, particularly where they are finely balanced.

What do food businesses need to do?

Where the country of origin or place of provenance of a primary ingredient is not the same as the country of origin or place of provenance currently shown on packaging, food businesses must either show the origin or place of provenance of the primary ingredient, or indicate that the origin of the primary ingredient is different to the food.

This can be done by either stating on packaging where a primary ingredient comes from e.g. EU, non-EU or a Member state or stating that the primary ingredient does not originate from the country of origin/place of provenance of the food. The presentation of this information must comply with the technical requirements in both FIC and the new rules and it must be shown in the same field of vision as the indication of the country of origin of the product. This may mean packaging becomes quite crowded. Food businesses may choose to remove or change statements regarding origin or provenance if they have been made voluntarily, where the inclusion of the new information detracts from the packaging aesthetic or the marketing benefit of including origin claims. 

Although they came into effect just last week, the new rules were published in June 2018 to give food businesses time to transition their packaging to the new rules. In that time, various industry bodies including the British Retail Consortium have published guidance to help businesses navigate the new requirements. There is comfort in knowing that food placed on the market or labelled prior to 1 April 2020 can continue to be marketed until stocks are exhausted. In terms of the impact of Brexit, during the current transition period EU rules continue to apply to the UK until 31 December 2020 and at this stage it is understood that the UK’s food labelling requirements immediately after the transition period will mirror the EU rules in force as at that date.

If you would like further advice on any of the issues discussed above, please contact the Food and Drink team.

Key contact

Helen Scott-Lawler

Helen Scott-Lawler Partner

  • Head of Food and Drink
  • Commercial
  • Intellectual Property and Media

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