Issue No. 9 of 5 May 2017
On 24 April 2017, the French Ministry of Social Affairs and Health notified the European Commission (hereinafter, Commission), under the TRIS procedure, of a draft Order laying down the additional form of presentation of the nutrition declaration recommended by the State (hereinafter, draft order). Under the draft order, the five-colour ‘Nutri-Score’ (also referred to as 5-Colour Nutrition Label or 5-CNL) is the official (but voluntary) additional front-of-pack (hereinafter, FoP) nutrition label, which France is recommending to food business operators (hereinafter, FBOs) in order to promote healthier food choices. From September to December 2016, four different logos had been tested in sixty Casino, Carrefour Market and Simply Market supermarkets across France for ten weeks, where 2 million labels were attached to approximately 1,200 food products in a bid to determine which one was most effective in promoting healthy eating.
The draft order with the recommendation of ‘Nutri-Score’ is to be issued pursuant to Article 14-II of Law No 2016-41 of 26 January 2016 on the modernisation of the French health system and Decree No 2016-980 of 19 July 2016 on additional nutrition information on foods (Articles L3232-8 and R3232-7 of the Public Health Code). France states, in its notification to the Commission, that these pieces of legislation were drawn up on the basis of Article 35 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 (hereinafter, FIR). According to this provision, in addition to the forms of expression referred to in the FIR, the energy value and the amount of nutrients may be given by other forms of expression and/or may be presented using graphical forms or symbols in addition to words or numbers, provided that a number of requirements are met.
The Annex to the draft order describes the methods for calculating the unique, overall nutritional score of each food based on the nutrient content. On the one hand, nutrients, which according to the draft, should be limited in their intake (i.e., saturated fats, simple sugars and salt), as well as calorie-dense foods, are taken into consideration with negative component scores. On the other hand, nutrients and ingredients, which, according to the draft, have beneficial effects (i.e., fruit and vegetable, nuts, vitamins, fibres and protein), are taken into account with positive component scores. For three food categories (i.e., added fats and oils, cheeses, and beverages), there are more specific requirements to calculate the nutritional score. Foods are then divided into five categories on the basis of the nutritional score attained, which results from subtracting the positive from the negative component scores. The relevant food category is shown on the ‘Nutri-Score’ logo, which consists of five colours, each displaying a different letter from the best nutritional value to the worst (i.e., from dark green A, light green B, yellow C, light orange D to dark orange E). According to the draft order, the logo shall be placed on the FoP. The FBOs that decide to adopt the recommendation on a voluntary basis, must inform the French Observatory of Food Quality.
According to Article 35(2) of the FIR, EU Member States may recommend to FBOs the use of one or more additional forms of expression or presentation of the nutrition declaration that they consider as best fulfilling the following requirements: “1) They are based on sound and scientifically valid consumer research and do not mislead the consumer; 2) Their development is the result of consultation with a wide range of stakeholder groups; 3) They aim to facilitate consumer understanding of the contribution or importance of the food to the energy and nutrient content of a diet; 4) They are supported by scientifically valid evidence of understanding of such forms of expression or presentation by the average consumer; 5) In the case of other forms of expression, they are based either on the harmonised reference intakes set out in Annex XIII of the FIR, or in their absence, on generally accepted scientific advice on intakes for energy or nutrients; 6) They are objective and non-discriminatory; and 7) Their application does not create obstacles to the free movement of goods”.
In order to justify the endorsement of ‘Nutri-Score’, France states that the introduction of nutrition information that is visible, legible, simple and easy to understand, particularly for populations with a low socio-economic status or low education levels, is recommended among one of the many additional collaborative strategies and campaigns that, in France as at EU level, aim at achieving the objective of improving general nutrition. Furthermore, France argues that a number of scientific studies have proven the benefits and importance of a labelling system in improving the nutritional quality of people’s grocery shopping, particularly for underprivileged households. Following consultations with a large number of stakeholders, scientists and consumers, France carried out an impact study (provided in Annexes 1 and 2 to the notification) showing that, of the four systems tested, the ‘Nutri-Score’ logo was the most effective scheme in terms of the consumers’ ability to rate their groceries and improve the nutritional quality of their grocery shopping. It is now for the European Commission and the other EU Member States to assess whether the justification of the French recommendation satisfies the requirements 1) to 4) of Article 35 of the FIR.
The fifth requirement of Article 35 of the FIR provides that other forms of expression must be based either on the harmonised reference intakes (hereinafter, RIs) set out in Annex XIII of the FIR (i.e., the average daily dietary intake of energy: 8,400 kJ/2,000 kcal, and nutrients: 70g total fat, 20g saturated fats, 260g carbohydrates, 90g sugars, 50g protein and 6g salt), or in their absence, on generally accepted scientific advice on intakes for energy or nutrients. However, it is not clear whether the draft decree takes them into account. There is no reference to the harmonised RIs in the description of the calculation of the nutritional score. Only for the three special cases (i.e., added fats and oils, cheeses, and beverages), nutrient reference values according to the French Nutrition and Health Programme are taken into account in order to adapt the calculation method of the score. On the ‘Nutri-Score’ logo itself, there is no reference at all to RIs. In comparison, the UK ‘traffic light’ scheme is a ‘hybrid’ FoP scheme that includes RIs (formerly known as ‘guideline daily amounts’, or GDAs) and colour coding in the logo. The French-recommended logo and its colour codes appear to simply categorise foods from good foods to bad foods, without taking into account how much energy and nutrients are consumed per day. Regarding the sixth requirement of Article 35, namely that these additional forms of expression be objective and non-discriminatory, it appears that only saturated fats and ‘simple’ sugars are relevant for the negative component of the calculation of the nutritional score. This appears to be a discrimination towards products containing saturated fats (which are not per se unhealthy) and presumably added sugars, which can also form part of a healthy diet, if consumed in moderation. France argues that the impact study showed that foods in the dark orange category are still being bought by consumers and that, from a public health perspective, additional studies (provided in Annex 3 to the notification) have shown that “improving the nutritional quality of people’s diets using the score on which the ‘Nutri-Score’ is based, leads to a reduction in the risk of a number of non-communicable diseases such as cancer, weight gain, cardiovascular diseases and metabolic syndrome.”
Various questions remain unanswered. First, whether such schemes are actually ‘voluntary’ in nature or whether they implicitly force competing FBOs to apply the same labels. Second, whether certain elements of such schemes can be classified as ‘non-beneficial’ nutrition claims. Finally, the proliferation of different schemes may become an obstacle to the free movement of goods within the EU and be contrary to EU law. For the second and third question, reference is made to the similar discussions previously entertained on Trade Perspectives in relation to the UK’s ‘traffic light’ scheme and certain French schemes in the test phase (see Trade Perspectives, Issue No. 21 of 20 November 2015 and Issue No. 6 of 24 March 2016). Regarding the first question, France argues that the objective of protecting public health in no way affects competition between manufacturers as the additional information will only be recommended by public authorities, and is therefore in no way obligatory. However, France’s ‘Nutri-Score’ nutrition labelling scheme raises concerns as to whether it is, de facto, voluntary. Reportedly, the major French retailers Intermarché, Leclerc and Auchan, as well as the food manufacturers Fleury Michon, Epi d’or and Chabrior already committed to ‘Nutri-Score’, without waiting for the adoption of the decree with the recommendation. This may put pressure on other food manufacturers, particularly small enterprises and own-label product suppliers, to apply the same colour labels. If evidence were to suggest that the FBOs not using the ‘Nutri-Score’ label are being pushed out of the French retail market, it would appear as though the scheme is not, at least de facto, ‘voluntary’.
The Pan-European industry group FoodDrinkEurope (FDE) issued a statement that discussions on a coordinated approach to FoP labelling should take place at EU level in close consultation and agreement with all stakeholders. The approach should also be consistent with the RI-approach that the European food and drink sector had pioneered and should ensure meaningful, science-based and non-discriminatory information to consumers. In its statement, the FDE regrets that the French scheme adds yet another potential layer of complexity to what should be an EU approach to FoP labelling. Any proliferation of national schemes should be avoided, as this may affect the free movement of goods in the EU’s Single Market.
It is now for the Commission and for the other EU Member States to assess whether the French recommendation complies with EU rules, particularly with the FIR. It should be noted that, back in October 2014, the EU Commission initiated infringement proceedings against the UK (which have never been taken further and will likely not be concluded in view of ‘Brexit’) over its ‘traffic light’ FoP nutrition labelling scheme (see Trade Perspectives, Issue No. 19 of 17 October 2014), following complaints from food and retail operators that the use of such scheme would negatively affect the marketing of several products. The Commission is also required to submit a report on the effects of ‘visual labelling’ schemes to the Council of the EU and the European Parliament by December 2017. Therefore, the debate will likely heat up again. The ‘standstill’ period under the TRIS procedure, during which the Commission and EU Member States can give an opinion on the draft decree, ends on 25 July 2017. Food business stakeholders with an interest in the matter should work with their legal advisors and respective governments to have their views and interests duly voiced and considered. The matter of FoP nutrition labelling schemes should be carefully monitored by interested stakeholders as further national legislation may be drafted by other EU Member States.
Ignacio Carreño
