The media furore around Morrisons' labelling of its’ ‘non-EU’ salt and pepper on a chicken product resulted in a threatened boycott of the store.
This shows the importance of having a good crisis and media response team. In any event labels can be legally compliant and yet still throw up unforeseen repercussions due to political, environmental or other scenarios.
It may well be that 'country of origin' claims and statements, whilst required under legislation in some cases, may become increasingly sensitive in our post-Brexit world. It is important that food businesses are aware of all their options and choices when it comes to labelling.
Here is a summary overview of the key issues to be aware of for your food business:
Is country of origin required?
Firstly the question of whether or not your product needs to list its’ country of origin?
Overall, listing the country of origin for a product is voluntary unless ‘to omit it would mislead’ the consumer. For example, where there is any implicit or explicit reference to a country such as flags or words there would become a corresponding requirement to list the country of origin ‘if to omit would mislead’.
In some cases, food business operators may want to indicate the origin of a food on a voluntary basis to draw consumers’ attention to the qualities of their product. In which case the same requirements as for mandatory labelling will apply.
The general rule is that the indication of the ‘country of origin’ or ‘place of provenance’ shall be mandatory where failure to indicate this might mislead the consumer as to the true country of origin or place of provenance of the food, in particular if the information accompanying the food or the label as a whole would otherwise imply that the food has a different country of origin or place of provenance.(Regulation 1169/2011 Article 26(2)(a))
(As a caveat to this rule, there are some product specific requirements for origin labelling for products such as honey, fruit and veg, fish, beef and beef products, olive oil, fresh, chilled and frozen meat of swine, sheep, goats and poultry. There are also specific parameters for these meats ie last place of rearing of a specified time or to a specified weight. Detailed information for the UK market is available here Food labelling: country of origin - GOV.UK (www.gov.uk))
In the case of Morrisons, the reference to ‘British Chicken,’ indicated the origin as British. The failure to specifically list this would not have misled the consumer. However, as we will see below, as salt and pepper were part of the name of the product, although as ingredients they made up only 4%, they would need their origin listing in the same field of vision with only 75% reduction in font size.
It is useful to review each part of the criteria that should apply to these rules:
Country of Origin
The country of origin will be:
- that place where goods have been wholly obtained from a single country or territory; or
- the place of last ‘substantial change’ to the product. ie goods the production of which involves more than one country or territory shall be deemed to originate in the country or territory where they underwent their last, substantial, economically-justified processing or working, in an undertaking equipped for that purpose, resulting in the manufacture of a new product or representing an important stage of manufacture. Namely, simple slicing, cutting and/or packing will not amount to a substantial change.
Place of Provenance
The place of provenance may also be considered and this means any place where a food is indicated to come from, and that is not the “country of origin”. The place of provenance could be a town/region/group of countries where the food is indicated to come from, or any geographical area where at least one of the production steps of the food took place.
Labelling referencing address / geographical indication generally
The name/business name and address of the food business operator on the label of food products does not, in itself, constitute an indication of the country of origin or place of provenance of the food.
Generally, where the statement is not likely to imply an origin indication for the consumer; ie ‘packed in’/’produced by’, ‘produced for’, ‘made by’ or ‘ [address] where the product has been produced or packed’; this will not be considered as giving an indication of the country of origin or place of provenance of the food.
References to ‘produced in’, ‘made in’ ‘product of’ ‘manufactured in’ have however been subject to some difference in interpretation. ‘Produced in’ may be associated by consumers with an origin indication. Also if referencing a processed food then, as a production process, it could constitute a place of last substantial change. Overall, this is a point of interpretation that should be taken into account, depending upon the components of the entire label and the presentation of the product when assessing a possible misleading aspect to the foods’ origin.
Specific labelling requirements such as those for organic foods will take precedence, subject to overall the presentation of the product not being misleading to consumers. Certain customary and generic names include a geographical indication ie Bakewell Tart. However, this indicates a common understanding of the product and is not an indication of origin or place of provenance of the food; therefore the origin requirement will not apply provided that such generic designations and customary names do not create the consumer perception of a certain geographic origin of the food in question.
References to ‘kind’, ‘type’, style, recipe ie American-style, should be looked at on a case-by-case basis as to whether the consumer may be misled, looking at the overall presentation on the package.
What does ‘placed on the market’ mean?
Articles 40 – 42 of the Withdrawal Agreement provide definitions for placing goods on the EU and UK markets. A good is ‘placed on the market’ in the EU, when it is first supplied for distribution, consumption, or commercial use, whether free of charge or not. All food placed on the EU market from 1 January 2021 will have to meet EU rules.
Labelling of ‘Origin’ after Brexit
- From 1 Jan 2021 food produced in GB and sold in the EU must not be labelled as ‘EU origin’.
- Food produced and sold in GB can continue to be labelled with ‘EU origin’ until 30 September, 2022. After this date the label must change to reflect GB origin.
- Food originating from NI and sold in GB can be labelled as ‘UK(NI)’, ‘United Kingdom (Northern Ireland)’ or ‘UK’. Or if the specific country or countries are not given then it can be labelled as ‘origin EU’.
- Food produced and sold in NI can continue to use ‘origin EU’.
An important caveat concerns a foods’ ‘primary ingredients’; if the place of origin of the food (according to the principle of last substantial change) is not the same as the place of origin of any of its primary ingredients, it may be necessary to provide further information on the origin of those ingredients.
'Primary ingredient' is defined in legislation as: “An ingredient or ingredients of a food that represent more than 50% 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.” Food Information Regulation Art 2(2)(q)
It should be referenced here that where a product name specifically references an ingredient such that a quantitative indication is required. For example, Morrison's 'salt and pepper chicken crown', the salt and pepper will become a primary ingredient even though it only makes up 4% of the chicken product.
Whether an ingredient that is 'usually associated' with the name of the food but is not listed in the product name and falls below the 50% threshold may be considered as a primary ingredient may be a matter of interpretation; usually taking the average consumer's understanding and expectation, packaging and description of the product as a whole in deciding if a consumer may be misled if this is not referenced.
Generally food information legislation requires that where the origin of a food is given and is different from the one of its primary ingredient, the origin of the primary ingredient shall be given or at least indicated as being different to the origin of the food.
However there is also a more precise enacting legislation that applies directly to primary ingredients that came into force on 1 April 2020 (Regulation (EU) 2018/775 ):
Labelling Origin of Primary Ingredient(s)
Where the origin of primary ingredients is different to that of the overall origin statement or claim the food label must:
1. Indicate the country of origin or the place of provenance of the primary ingredient; OR
2. Provide an indication that the primary ingredient has a different origin/provenance to that of the food.
If the first option is taken reference should be in a particular format to one of the following geographical areas; most notably ‘EU’, ‘non-EU’ or ‘EU and non-EU’ . Other options for labelling allow for countries ie France, Spain, fishing areas; Black Sea, North Sea, regions ie Tuscany, geographical areas such as those understood by normally informed average consumers ie Mediterranean, West Africa, Baltic countries. Words rather than country codes should be used unless these are commonly understood by consumers ie USA, UK.
It is therefore apparent that Morrisons’ labelling of the primary ingredient was legally compliant. However, the wider context of how this may be perceived by consumers was not considered. Other options were available to them, including the second option of simply indicating a different origin.
If the second option is taken suggested wording is: ‘(name of the primary ingredient) do/does not originate from (the country of origin or the place of provenance of the food)’ or any similar wording likely to have the same meaning for the consumer.
Suggested (non-exhaustive) examples of possible wordings include: — “[primary ingredient] of different origin”; — “with [primary ingredient] from different origin”; — “[primary ingredient] not from X origin”; — “[primary ingredient] not from X”; — “[primary ingredient] from outside X”
This option can be the only feasible option in certain situations (e.g. when the primary ingredient has multiple and variable origins/ provenances), this option is not limited to specific circumstances, and can always be used by food business operators
As well as the overall labelling requirements for minimum font size and that labelling should be easy to understand, visible, clearly legible and indelible.
It is further set out that information on the origin of the primary ingredient has to appear in the same ‘field of vision’ as the indication of the country of origin or place of provenance of the food and by using a font size which has an x-height of at least 75 % of the x-height of the origin indication of the food, and in any event not smaller than 1.2 mm.
It is important that food business operators are aware of all their information and labelling options.
Where labelling and packaging are subject to interpretation, a third party legal overview can provide both the reassurance and legal support to a food business operator and their marketing and regulatory teams.
Sometimes a label can be legally compliant but subject to an unforeseen bias or perception from the consumer which can be based around, for example, where the brand is positioned, through to more broad political events. Morrisons would not have known about the potential for the deepening rift between the UK and France over fishing rights for example. Social media allows large groups of activists to gather together. In this case Morrisons responded quickly to defuse the situation.
If any advice or review of labelling is required please contact our specialist food team at Mills & Reeve for further information.