L AW J OURNAL Analyzing the Laws, Regulations, and Policies - - PDF document

Analyzing the Laws, Regulations, and Policies Affecting FDA-Regulated Products

FDLI

FOOD AND DRUG LAW JOURNAL

VOLUME 63 NUMBER 1 2008

European Union Food Labeling and Packaging: The Need to Strike a Balance John Felce

2008 113 EUROPEAN UNION FOOD LABELING AND PACKAGING 113

European Union Food Labeling and Packaging: The Need To Strike A Balance JON FELCE*

• I. INTRODUCTION

One of the most thought-provoking and controversial issues of 2004 was the Academy-award nominated film “Super Size Me,” in which its director and star, Morgan Spurlock, lived for 30 days on food from McDonalds for his three daily

• meals. In part, the success of this film in capturing the public’s imagination was

a reflection of increased public interest in health and diet. Food producers and retailers have not been slow to react to this trend, and sophisticated nutrition and health claims in the advertising, labeling and presentation of foods have become

• widespread. Since July 1, 2007, European Union (EU) legislation on nutrition and

health claims has applied in the EU, with the aims of harmonizing such claims across the current 27 EU member states and providing a framework to ensure consumers are not misled. This has been merely part of the desire for increased consumer information, driven as much by regulations as by food producers, retailers and consumers them-

• selves. In the EU, there is now an extensive food labeling regime, covering not just

the information necessarily required to be present on labels, but establishing rules for information voluntarily provided (including the above-mentioned new legisla- tion on nutrition and health claims) and the manner in which all such information is presented. This area of law is continuing to evolve and is currently the subject

• f a review by the European Commission.

This trend toward increased labeling and information for consumers has been mirrored by potentially conflicting moves to curb excessive packaging and packag- ing waste. EU legislation has established various targets and objectives with the aim of reducing the impact of packaging and packaging waste on the environment, in particular in connection with its impact on landfill. In recent months, various further initiatives have been proposed and the desire for a more environmentally- friendly society shows no signs of abating. This article looks at these concurrent movements, in particular with reference to the United Kingdom (UK), and suggests that a delicate balance needs to be maintained between them.

• II. HEALTHY LIVING

Healthy living has become one of the watchwords of the new millennium, driven by government policy, consumer demand and food producers. A particular corner- stone of this trend has been the promotion of healthy eating in recognition of the importance of diets in (among other things) reducing coronary heart disease and

• besity while increasing quality of life and worker productivity. For example, it

was estimated that by 2000 obesity was costing the UK approximately £2.5 billion annually, comprising £480 million incurred in treating obesity and its associated diseases and a £2 billion loss in productivity1. The actual cost to the economy of

* Mr. Felce is an Associate in the London office of the international law firm Jones Day where

he is a member of the firm’s litigation department. The views are the author’s and do not necessarily reflect those of Jones Day law firm.

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poor diet is likely to be significantly higher, as this estimate did not account for

• ther diet related illness and death or the monetary value of pain, grief and suf-

fering associated with all diet related conditions. As the drive toward healthy living continues apace, the public has become increas- ingly inundated with nutritional information and health claims. Healthy option brands have become particularly fashionable, and it was estimated that in 2003 some 4,250 products on the market with a value of over £1 billion were described as such.2 Similarly, the UK Food Standards Agency introduced the concept of “traffic light labeling,” which flags whether the amount of particular nutrients in a portion or serving of food is healthy. The merits of individual ingredients, min- erals and vitamins are now often the sole focus of marketing campaigns, a recent example being a campaign concerning Birds Eye Fish Fingers about Omega-3 fatty acids (Omega-3 is said to maintain heart health). Similarly, Flora introduced Flora Omega-3 Plus margarine, which claimed to contain more Omega-3 fatty acids than any other spread. While certain ingredients, minerals and vitamins have become fashionable, others such as saturated fat and salt are less so. Last year, Ofcom, which regulates UK communications, announced that all advertisements for foods that are high in fat, salt and sugar (HFSS) will be removed from all programs holding particular appeal for children up to the age 16. This has been followed by a Television Advertising (Food) Bill in the UK House of Lords which would cover all television advertise- ments before 9 p.m.,3 as well as preventing sponsorship of pre-watershed programs by HFSS products to prevent such advertisements attracting children up to the age 16 to HFSS products. Food producers have also joined in on this bandwagon, and their marketing campaigns often emphasize the reduction or removal of items such as saturated fat and salt, as highlighted by the snack company Walkers in 2007, when it re-launched its snack brands with less saturated fat and salt.

• III. NUTRITION AND HEALTH CLAIMS REGULATION

In this context of healthy living, consumers have been increasingly flooded with nutrition and health claims such as “high in polyunsaturates, low in saturates” and “calcium helps build strong bones”. While a feature of EU policy has been to in- crease consumer choice by providing the public with sufficient information to make an informed decision, this has been accompanied by a need to ensure consumer protection from erroneous, misleading, confusing and unhelpful nutrition and health claims, not least in an environment in which consumers take more interest in what they are eating (and hence the labels of the food products they purchase). Although existing European legislation requires adequate and effective means to control false and misleading advertising, including provisions under which per- sons or organizations can take legal action against such advertising and/or bring it before an appropriate authority (which can itself make a decision concerning the complaint or initiate legal proceedings), this was deemed insufficient. It was suggested that harmonizing legislation was needed at the European level to prevent misleading nutrition and health claims specifically, before such claims were made and then contested. This was particularly the case as some EU member states had adopted measures (including new legislation) to regulate the use of nutrition and

1

2000 figure from the National Audit Office 2001: “Tackling Obesity in England”.

2

British Retail Consortium figure.

3

This is known as ‘the watershed.’

2008 115 EUROPEAN UNION FOOD LABELING AND PACKAGING

health claims, resulting in differences in approaches, the definitions of terms and the conditions in which claims could be used. Such discrepancies, it was suggested, could impede the free movement of foods and the proper functioning of the EU internal market, as well as preventing a guaranteed high level of consumer and public health protection. This resulted in the Nutrition and Health Claims Regulation4 which has ap- plied directly in EU member states (including the UK) since July 1, 2007. It seeks to control the use of nutrition and health claims in the advertising, labeling and presentation of foods to the final consumer. The Nutrition and Health Claims Regulation aims to achieve this by:

• general principles applying to all claims, such as that claims must not be false,

ambiguous or misleading;

• detailed rules concerning specific types of claims—for example, as to when a

claim that a food is “fat free” or a “source of protein” is permitted;

• the provision of certain information on labels or in advertisements;
• rules concerning claims which cannot be made (such as that health could be

affected by not consuming the food or which state, suggest or imply that a food has the property of preventing, treating or curing a human disease);

• the creation of nutrient profiles with which food must comply to bear certain

claims; and

• an authorization process for certain claims.

Under supplemental legislation, failure to comply with such requirements can lead to a maximum imprisonment of two years and/or an unlimited fine since October 1, 2007.5 While it is envisaged that these measures will protect a better informed consumer from unscrupulous claims and promote healthy living, the food industry faces a number of decisions, not least the need to audit whether existing or future claims will necessitate product reformulation or re-labeling (subject to transitional mea- sures under the Nutrition and Health Claims Regulation). Although larger businesses may be able to absorb the resultant costs, it has been suggested that the legislation may stifle innovation as small- and medium-sized enterprises struggle to find the resources to re-label products or compile expensive

• dossiers. As a response to this argument, it is pointed out that the legislation only

affects voluntary information in addition to that which is already mandatory. (For those statements or descriptions required by other EU food legislation, the word- ing is often precisely defined by the legislation that makes them mandatory. For example, the Spreadable Fats (Marketing Standards) Regulations 19996 require that products with a fat content of 60-62 percent must be labeled “three-quarter-fat” or “reduced fat” or permitted equivalents.) It is argued that there will be no impact

• n food producers who do not provide nutrition and health claims voluntarily

when labeling, presenting or advertising food products. Yet all that this potentially means is that small- and medium-sized enterprises will be priced out of making such claims at all, leaving larger producers with a marketing advantage (in addition

4

Regulation (EC) No 1924/2006 of the European Parliament and of the Council of the European Union, December 20 2006 on nutrition and health claims made on foods (as corrected by corrigenda dated January 18, 2007).

5

Nutrition and Health Claims (England) Regulations 2007 (SI 2080/2007), Regulation 5.

6

SI 1999/2457.

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to the competitive advantages they already derive from their size) with which their smaller competitors cannot compete. That said, the vast majority of nutrition claims are likely to be unaffected because they already meet the new requirements, and there is a 15-year transition period for trade marks and brand names to comply. Further, it has been estimated that the average cost for re-labeling a product is £1,000,7 and it has also been suggested that it may take £15,000 to prepare straightforward scientific dossiers in support

• f claims, although this is likely to include costs ordinarily incurred anyway.

Although there may be a cost to compliance, such compliance should prevent a deluge of unsubstantiated and/or inaccurate claims and increase consumer

• confidence. Producers should also benefit from a more secure legal environment

in which claims are more tightly regulated. It is envisaged that they will be able to use serious and scientifically substantiated claims as a marketing tool as unfair competition from unscrupulous manufacturers is (substantially) eliminated. This should not only impact on smaller businesses but larger ones too. For example, Flora’s pro.activ blood pressure controlling drink was launched in 2006 with a £10 million budget, only to be withdrawn when it was realized that the claim was not sufficiently substantiated. Similarly, Cow & Gate’s claim that the probiotics additive helped to support a baby’s natural immune system was withdrawn from its label- ing after a ruling against it by the UK Advertising Standards Agency. Meanwhile, advertisements for St Ivel Advance Omega-3 milk, fronted by Lord Winston, the prominent UK broadcaster and fertility doctor, were withdrawn after an Advertising Standards Authority ruling that the advertisement misled the public by claiming that the product might improve children’s learning and concentration.

• IV. OTHER RECENT EXAMPLES OF INCREASED LABELING

The desire to increase consumer confidence and information means that the Nutrition and Health Claims Regulation is unlikely to be the last of such legislation emanating from Europe (or indeed the UK). For example, there have been calls for enhanced labeling requirements concerning animal welfare standards, and indeed a sociological study carried out in Europe showed that a lack of labeling of produc- tion methods was preventing consumers from possibly changing their purchasing patterns.8 Others have advocated tightening “country-of- origin” labeling require- ments during the Bernard Matthews turkey episode in 2007. On this occasion, a bird flu outbreak was linked to turkey imported into the UK from Hungary by Bernard Matthews. This led to calls for a revision in “country-of-origin” labeling as current law does not require food processed in the UK with ingredients sourced from another country to be labeled as such. The UK Food Standards Agency (an independent UK government department established to protect the public’s health and consumer interests in relation to food) has now commenced a consultation exercise on revised guidance for food businesses for such labeling. Among the revisions proposed is best practice advice on providing voluntary ad- ditional information in the form of a “Produced in Y” statement if the product is labeled as “Packed in X,” to avoid any implication that the product also originated from “X.”

7

Information from British Retail Consortium.

8

Consumer concerns about animal welfare and the impact on food choice. EU FAIR-CT36-3678. Dr Spencer Henson and Dr Gemma Harper, University of Reading.

2008 117 EUROPEAN UNION FOOD LABELING AND PACKAGING

Indeed, in 2007 the European Commission was reviewing EU food labeling leg- islation and indicated that the current food labeling directive will be replaced by a directly applicable regulation on “Food Information.” A principal aim of this review is to simplify the rules and reduce burdens on industry, without loss of consumer information or protection. This may impact on provisions within the Food Label- ing Regulations 1996 which have evolved over time in response to domestic need and so far have been unaffected by EU law. The Commission was also reviewing nutrition labeling and considering in particular front-of-pack labeling.

• V. EXCESSIVE PACKAGING AND PACKAGING WASTE

As labeling requirements have increased, the drive toward reducing packaging and packaging waste has gathered corresponding momentum with a view to mini- mizing the burden on both the environment and the taxpayer. The drive to reduce excess packaging is just part of the drive to reduce packag- ing waste. It has been claimed that such waste, which increased by 12 percent from 1999 to 2005,9 accounts for 4.6 million tons of household waste annually and 17 percent of the average household food budget.10 In contrast, Germany, which has a population approximately 25 percent larger than the UK, disposes of less than half the amount of rubbish into the ground.11 Accordingly, local government leaders have warned that without bold reforms the targets in the EU Landfill Directive12 will not be met.13 This could lead to local authorities facing fines of up to £150 per ton which could constitute a £200 million burden on the UK taxpayer. 14 Even more worrying is the prospect that, at the present rate of dumping, landfill space would run out in nine years.15

• VI. MOVES TO REDUCE EXCESSIVE PACKAGING AND PACKAGING WASTE

In this context, moves to reduce excessive packaging and packaging waste have gathered apace. The two prominent pieces of legislation in the UK are the Producer Responsibility Obligations (Packaging Waste) Regulations 200716 (the Producer Regulations) and the Packaging (Essential Requirements) Regulations 200317 (the Essential Require- ments). These implement European legislation which seeks to reduce the impact

• f packaging and packaging waste by introducing recycling and recovery targets

and encouraging the minimization and re-use of packaging.18 The Producer Regulations came into force in the UK on March 16, 2007. In response to the need for the UK to meet an overall recovery target of 60 percent and an overall minimum recycling target of 55 percent by December 31, 2008, the Producer Regulations set a business recovery target of 70 percent (these regulations

9

Local Government Association press release, February 12, 2007.

10 Early Day Motion 814. 11 Local Government Association press release, January 7, 2007. 12 Council Directive 1999/31/EC of April 26, 1999 on the landfill of waste. 13 Local Government Association press release, January 7, 2007. 14 Local Government Association press release, January 7, 2007. 15 Claim made by Sandy Bruce-Lockhart, chairman of the Local Government Association, ref-

erenced in MPs sign up to the campaign against excess packaging, THE INDEPENDENT, April 27, 2007.

16 SI 871/2007. 17 SI 1941/2003 as amended. 18 Council Directive 94/62/EC on Packaging and Packaging Waste as amended.

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exclude a number of small business from the obligations (i.e., those having a turnover

• f less than £2 million and/or which handle less than fifty tons of packaging in a

calendar year). Affected producers have a choice of registering and reporting to the relevant enforcement agencies or joining a compliance scheme on an annual basis. The producer (or compliance scheme on its behalf) must then purchase evidence

• f compliance from an accredited reprocessor or exporter to demonstrate that the

required amount of recovery and recycling has been carried out. The Essential Requirements require that packaging be minimized, that it be capable of recovery and recycling and that it contains only restricted amounts of certain hazardous substances. The principal requirement is that no person who is responsible for packing or filling products into packaging or importing packed

• r filled packaging into the UK may place that packaging on the market unless it

fulfils the Essential Requirements. Such requirements include that:

• packaging, volume and weight must be minimum amount to maintain the

necessary levels of safety, hygiene and acceptance for the packed product and the consumer; and

• packaging must be manufactured so as to permit re-use or recovery in accor-

dance with specific requirements. This has been paralleled by campaigns and initiatives in Parliament and by the press and retailers, in particular concerning the need for tighter regulation and greater enforcement.

• A. Legislative Developments

A particular bone of contention has been the lack of successful prosecutions un- der the Essential Requirements. Only a handful of companies have been prosecuted under these regulations, and even then the size of any fine (a maximum of £5,000

• n summary conviction) is not seen as a deterrent for larger companies (notwith-

standing that an unlimited fine can be incurred if convicted on indictment). The majority of the blame for the lack of successful prosecutions is attributed to the broad defenses available as extra packaging is allowed where there is “consumer acceptance,” a need to “provide identification” or for “stimulating purchase.” This so-called loophole has come under sustained attack recently, and in May 2007 the EU environment commissioner was asked to look into the fact that companies using too much packaging can claim they need it for marketing purposes. Consumers have also been urged to report excessive packaging to the trading standards authorities, and last year a television documentary did just that.19 This is not the only potential regulatory development. In 2007, the Retail Packaging Recycling Bill was introduced in the UK Parliament, requiring certain retailers with stores over 250 square meters (2,690 square feet) to provide free of charge a collection point for any packaging materials sold or supplied by them and to recycle or safely dispose of such materials. Similarly, an Early Day Motion (a formal motion submitted for debate in the House of Commons) has been signed by approximately a quarter of MPs concerning excess levels of packaging,20 while in May 2007 the government published the “Waste Strategy for England 2007”

19 Channel 4 documentary entitled “Packaging is Rubbish”. 20 Early Day Motion 814.

2008 119 EUROPEAN UNION FOOD LABELING AND PACKAGING

containing a number of initiatives aimed at reducing the amount of packaging dumped annually.

• B. Other Campaigns and Initiatives

These parliamentary developments have occurred at the same time as various campaigns to tackle the problem of waste, the most prominent of which have in- cluded the Independent newspaper’s “Campaign Against Waste” and the Women’s Institute’s “Packaging ‘Day of Action,’” in which members returned unnecessary and excessive packaging to supermarkets. This has been mirrored by a number of initiatives by retailers and packaging manufacturers, a number of whom have signed up to the Courtauld Commitment to “design out” the rise in packaging by 2008 and to cut packaging waste by 2010. Meanwhile, two small towns have attempted to become “plastic shopping bag free” as retailers have stopped issuing plastic bags when products are purchased and instead are offering a more environmentally-friendly alternative bag (or the

• ption for shoppers to re-use old bags). A new London local authorities bill

proposes similar measures for London. Similarly, in 2007 the UK supermarket Sainsburys put on sale 20,000 cotton bags by the designer Anya Hindmarch as an alternative to disposable bags, prompting shoppers to begin queuing for these at 2 a.m. Meanwhile, Asda (owned by Wal-Mart) invited customers at two stores to return examples of over-packaging to its stores to lend weight to the campaign to pressure suppliers into reducing waste. One of the most innovative responses to the desire to avoid waste has been seen at Lush Cosmetics, which uses popcorn for the transportation of products. It is claimed that as popcorn is 60 percent lighter than shredded paper, it not only takes 10 percent less energy to transport but saves 4.6 million bags annually. In addition,

• nce unpacked, popcorn can be disposed of into a compost bin.

Even reality television in the UK has reacted to the issue of waste. A new show entitled “Dumped” followed 11 contestants attempting to live for three weeks off waste deposited at a landfill site, the aim being to promote thought and debate about what is discarded.

• C. Easter Eggs—A “Flagship Example” of Excess Packaging

A so-called “flagship example” of excess packaging was seized on during Easter 2007, when various surveys were conducted concerning the packaging of the 80 mil- lion Easter eggs sold in the UK annually. These eggs, it has been claimed, generate approximately 4,370 tons of cardboard and 160 tons of foil waste.21 These surveys not only revealed the amount of excess packaging but also the extra cost born by the consumer for this packaging. The Liberal Democrat MP Jo Swinson found that on average Easter eggs com- prise merely 15 percent of the volume of their packaging, with one egg comprising

• nly 9 percent of the volume of the package.22 Meanwhile, a survey on behalf of

Friends of the Earth Scotland revealed that in certain cases consumers were spend- ing more on packaging that would be discarded than on the Easter eggs themselves. A particularly notable example was a £4.98 Cadbury’s Dairy Milk Variety egg

21 Friends of the Earth Scotland Press Release, April 2, 2007. 22 What a load of rubbish, says Lib Dem MP, THE GUARDIAN, April 5, 2007.

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(containing 295g of chocolate), of which, it was claimed, up to £3.37 (equivalent to 68 percent of the sale price) could be toward the packaging of the chocolate egg.23 A similar example was highlighted in a television documentary during the summer, in which the cost of ingredients for shower gel was 10 pounds, whereas the packaging cost was 29 pounds.24 Equally, in Tesco in July 2007, loose British leeks were £1.98 per kilogram, but British leeks bagged and “extra trimmed” were priced at £2.48 a kilo—a price increase of 20 percent.25

• VII. IS PACKAGING JUST “A LOAD OF RUBBISH”?

While the need to cut down excessive packaging is no bad thing, the current drive appears to be in danger of forgetting that packaging can be essential and is not necessarily ‘un-green’. Indeed, it is questionable whether the problem lies within the packaging industry or the public’s antisocial treatment of packaging. Packaging performs an essential function in a number of ways, and it is important to avoid demonizing it. It is argued that packaging is lighter, thinner and provides far more protection than previously, notwithstanding that more products are avail- able nowadays. It is not necessarily in companies’ interests to produce unnecessary packaging (with the possible exception of packaging for purposes of marketing, but even then this is part and parcel of the desire for consumer choice discussed below); rather packaging exists overwhelmingly in response to some need or demand.

• A. The Need for Packaging

Firstly, packaging protects its contents. It may be easy to pick on certain items and crudely identify the amount of packaging in proportion to the size or volume

• f those items, yet in practical terms much of this packaging may, unbeknownst

to the suspicious examiner, in fact be required. The ease with which such debates

• n this subject can arise has been evident in debates in the UK Parliament. On

June 12, 2007, the House of Commons discussed whether cucumbers needed to be wrapped in cling film, and it was argued that given the amount of moisture in cucumbers, they benefit from being packaged.26 This has been substantiated by an investigation by the Cucumber Growers’ Association in February/March 2007 which found that the use of shrink wrap was a major advantage in reducing moisture losses on fruit.27 Perhaps the most vivid example raised during the June parliamentary debate was that of a turnip when a reference was made to a speech from a representa- tive of a leading UK supermarket earlier in the year. The representative made his speech using two turnips as his visual aids, both turnips having been purchased at the same time on the same day. One had a coating of polythene cling film and one did not. By the time the gentleman delivered his speech, the uncovered turnip was going soft and pulpy whilst the turnip wrapped in cling film remained fresh and

• firm. This highlights how, even within a few days, food can go off or deteriorate

dramatically, and how packaging can preserve food.28 Similarly, with increased

23 Friends of the Earth Scotland Press Release, April 2, 2007. 24 Channel 4 documentary entitled “Packaging is Rubbish”. 25 http://www.bbcgoodfood.com/content/wellbeing/features/food_packaging/1/ 26 Eric Illsley MP, Hansard, June 12, 2007, Column 196WH. 27 ‘Shrink wrap – necessary? An investigation by the CGA February/March 2007’. 28 Referenced by Eric Illsley MP, Hansard, June 12, 2007, Column 192WH.

2008 121 EUROPEAN UNION FOOD LABELING AND PACKAGING

demand for fewer preservatives in food, more protection from packaging is required to provide the same shelf-life. In addition to cucumbers and turnips, the merits of coconuts being wrapped in cling film was discussed during the June parliamentary debate. Here, it was argued that coconuts required the cling film to stop fibers from dropping off the coconut into other foods, getting into baby food and choking babies.29 Thus, not only does packaging protect the good itself, but it protects both the public and other items from cross-contamination (particularly relevant for people with allergies), includ- ing from organisms such as E. coli. It also protects consumers from accidents—for example, grapes are bagged to keep the bunches together and stop loose grapes causing consumers to slip if they escape onto the shop floor. In fact, packaging is

• ften necessary for compliance with rules and regulations concerning the trans-

portation of certain goods which exist for the benefit and safety of consumers. It also acts as security, preventing tampering with products or accidental poisoning, for example of young children. Packaging not only protects its contents, but preserves them and hence reduces food waste. Indeed, one member of the UK Parliament claimed that 30 percent of food purchased is thrown away.30 For example, among the reasons why much fresh fruit and vegetables are pre-packaged is that apples sold “loose” result in 27 percent more waste than those sold in a four-pack as consumers reject bruised apples, which then have to be disposed of.31 Given that the environmental impact of avoidable food waste in household waste is at least eight times greater than the impact of total packaging waste going to landfill32 and just 3 percent of landfill is packaging waste, whereas 18 percent is household waste,33 the importance of preventing food waste is evident. This not only applies to food packaged for the end consumer, but during movement and transportation of the produce to its point of sale. Even if an item may be sold loose, it may not have been transported loose but may well have been

• packaged. Accordingly, the amount of food in the UK supply chain lost between

it growing in a field and reaching supermarket shelves is less than 3 percent.34 In contrast, 40 percent of the food produced in India is lost.35

• B. The Development of Packaging—A Response to Changes in

Consumer Lifestyles

In many ways, the development of packaging is also a response to changes in consumer lifestyles. The contrast with 50 years ago is obvious. Then, consumers went to their local shop to purchase fresh produce to cook that day which was sold loose in brown paper bags. Milk was delivered first thing in the morning. Many families did not have cars to transport large amounts of shopping, nor re- frigerators or freezers. Online shopping, telephone delivery and microwaves were also things of the future. Nowadays, virtually everyone has at least one of these new-age gadgets and the cars to transport them. Convenience shopping is the way

29 Eric Illsley MP, Hansard, June 12, 2007, Column 193WH. 30 Lorely Burt MP, Hansard, June 12, 2007, Column 198WH. 31 Figure from The Industry Council for Packaging and the Environment, referenced at http://www.

aberdeencity.gov.uk/ACCI/web/site/Rubbish/NSC/rub_overpackage.asp.

32 Eric Illsley MP, Hansard, June 12, 2007, Column 191WH. 33 Eric Illsley MP, Hansard, June 12, 2007, Column 191WH. 34 Eric Illsley MP, Hansard, June 12, 2007, Column 190WH. 35 Eric Illsley MP, Hansard, June 12, 2007, Column 191WH.

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most people shop now in the UK and the growth of out-of-town industrial parks has symbolized this trend. Supermarkets have become just that, “super” versions

• f the traditional local market, increasingly containing anything and everything

a shopper could want, not just food and drink, but televisions, books and clothes to name just a few items. Furthermore, demographic shifts, such as more single occupancy households, more disposable income and a longer-living population, have led to demand for more goods—thus more packaging. Similarly, different members of the family eat at different times of the day and therefore need more, smaller portions and hence more packaging than the equivalent bulk product. Thus by 2000 there were more than 40,000 product lines on many supermarket shelves.36 Sainsbury’s product range alone increased from 7,000 in 1980 to 17,000 in 1993.37 Among the products that have increased in number by reason of changes in lifestyle are ready meals, the total sales in the UK of which were valued at £1.78 billion in 2001, up 46 percent

• n 1997.38 This reflects that people’s time is often very pressured, and that, for

convenience, consumers increasingly purchase packaged, ready made products rather than fresh unpackaged produce. Not only are more products available, but more of the same product type. For example, among the 40,000 product lines mentioned above there were 18 types of

• rganic cheese, 600 kinds of coffee and over 400 brands of shampoo.39 Consumer

choice has become a prominent feature of modern life, and as much as retailers cre- ate such demand they also respond to it. Government and EU policy (as mentioned above) has also promoted consumer choice, but this is not without its potentially adverse effects. Formerly, local produce may have been transported from the local farm to the local village shop or to nearby towns. Nowadays, shoppers are over- whelmed with an increasing amount of choice. This is typified by fruit which is imported from all around the world. A survey from 200240 found that less than half

• f the apples sold in UK major supermarkets were British (with the exception of
• ne outlet) and sometimes less than a third. Instead, a significant number of apples

were imported from outside the EU, in particular from New Zealand, South Africa and the United States, meaning that some apples had traveled 20,000 kilometers before arriving on UK shelves. Where the place of origin was stated, it was found that only market stalls and greengrocers sold local produce. The entire business model on which modern supermarkets are based is a response to the change in consumer lifestyle. Many supermarket “superstores” are located

• n the edges of towns for convenience for motorists, while supermarkets generally

seek to maximize the use of space by stacking products high to save costs. Hence many have highly centralized distribution and supply networks, in contrast to lo- cal and traditional shopping models. The larger retailers will only deal with big suppliers who offer a reliably homogenous product at a low cost. This results in produce frequently being trucked from one end of the country to the other for processing, before being trucked back again to be sold. Similarly, supermarkets have taken advantage of the increasingly global food economy and source the cheapest possible produce from abroad irrespective of whether there are acceptable local substitutes.

36 http://news.bbc.co.uk/2/hi/uk_news/724080.stm. 37 http://www.eatwell.gov.uk/healthydiet/seasonsandcelebrations/howweusedtoeat/1 980s/. 38 http://www.food.gov.uk/news/newsarchive/2003/jun/readymealsmarket. 39 http://news.bbc.co.uk/2/hi/uk_news/724080.stm. 40 Friends of the Earth press release, November 25, 2002.

2008 123 EUROPEAN UNION FOOD LABELING AND PACKAGING

In this environment, where retailers are able to offer a wide variety of choice, producers need to distinguish one product from another. Accordingly, packaging forms an important function as regards marketing (as recognized by the fact that “stimulating purchase” is one of the defenses to a charge of excessive packaging under the Essential Requirements). While this facilitates the exercise of consumer choice, the use of packaging for marketing is seen as one of the principal reasons for excess packaging. The oft-quoted example is the packaging of Easter eggs where the intention is to attract the attention of young children and chocoholics alike. Yet when consumers are faced with fifteen choices of toothpaste, branding is essential to differentiate one product from another.

• C. A Use of Packaging—Information

The drive for greater consumer choice necessarily means that the consumer re- quires as much relevant information as possible to make that choice. The obvious place for that information is often packaging41. Packaging often contains several of the following: the name of the food, details of the ingredients (including flavorings and additives), details of the ingredients of compound ingredients contained in the product, health and nutritional information (such as caloric content), instructions (such as cooking and storage instructions), conditions of use, safety and allergen information (such as “may contain nuts”), details about the country and/or region

• f origin, durability information (in the form of a “best before” or “use by” date),

weight, volume, the manufacturer’s name and address, whether the product is fair-trade, whether the product is organic, the recommended retail price, animal welfare information (such as “free range”), quality branding (such as “luxury range”), value branding (such as “value range”), details of what the product is free from (such as “free from wheat” or “free from gluten,”important for celiacs), whether the product is part of a “healthy eating range,” how many portions of the recommended five-a-day of fruit and vegetable the product contains, traffic light signposting concerning whether the levels of fat, etc. are healthy, trademarks, pro- cessing information (such as whether the product has been pasteurized, smoked

• r concentrated), a statement if the product has been irradiated, lot mark or batch
• code. It is plainly an extensive list.

There are various regulatory regimes in place which require specific information to be contained on foods. In particular, in the UK, The Food Labeling Regulations 199642 implement the Labeling, Presentation and Advertising of Foodstuffs Direc- tive,43 and prescribe labeling requirements for food that is ready for delivery to the ultimate consumer or to a catering establishment and also make provision with regard to claims, nutrition, labeling and misleading descriptions of food. In particular, the Foods Labeling Regulations contain a general labeling require- ment, pursuant to which all food (subject to certain exceptions) that is ready for delivery to the ultimate consumer or to a catering establishment must be marked

• r labeled with the name of the food, a list of ingredients, the quantity of certain

41 There are a lot of arguments for putting it somewhere else, above and beyond the argument

that it will cause more packaging waste. For example, packaging can be overloaded by the volume of information which can cause important warnings to be missed. Similarly, there are increasing numbers

• f other places for consumers to access such information, if they are interested, in particular via the

internet.]

42 SI 1996/1499. 43 Council Directive 2000/13/EC on the approximation of the laws of member states relating to

the labeling, presentation and advertising of foodstuffs.

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ingredients or categories of ingredients, the appropriate durability indication, any special storage conditions or conditions of use, the name or business name and an address or registered office of either or both the manufacturer or packer or seller established within the European Community. Additional, there are requirements for the particulars of the place of origin or provenance of the food if failure to give such particulars might mislead a purchaser to a material degree as to the true

• rigin or provenance of the food, and instructions for use if it would be difficult to

make appropriate use of the food in the absence of such instructions. Beyond the general requirements concerning the information that should be supplied with the food product, there are also specific requirements concerning particular types of food product. For example, containers of raw milk need to be marked with the following: “This milk has not been heat-treated and may therefore contain organisms harmful to health.”44 Similarly, since January 2002, beef labels have had to include precise information about where the animal was born and reared in addition to the place of fattening, slaughtering and cutting.45 Such is the importance of some information that there are also legislative re- quirements concerning the manner of the marking or labeling of that information. Under the Food Labeling Regulations,46 when any food is sold the particulars with which it is required to be marked or labeled must appear on the packaging, or on a label attached to the packaging or on a label that is clearly visible through the

• packaging. In addition, those particulars must be easy to understand, clearly legible

and indelible. When a food is sold to the ultimate consumer, it must be marked in a conspicuous place in such a way as to be easily visible.47 Particulars must not in any way be hidden, obscured or interrupted by any other written or pictorial matter. Further, where a food is required to be marked or labeled with more than one of certain indications (such as the name of the food and the appropriate durability indication), such indications must appear in the labeling of the food in the same field of vision.48 All of this plainly has the potential to impact on the size, volume

• r shape of the packaging.
• VIII. CONSUMER RESPONSIBILITY

It is not only a regulatory drive that has been responsible for this increase in the amount of information present on labeling and packaging. This information is also desired by consumers, as evidenced in a survey conducted by YouGov49 in which at least one in three people thought that most health, environmental and social issues were very important in relation to the food they purchased, while more than three-quarters found that the quality of food was very important. In addition, the results indicated that many types of such product information and labels are used by a majority of shoppers, over 60 percent of whom have at least occasionally used many types of product labels containing information about health, environmen- tal and social issues, and between 20-40 percent use many of these labels often.

44 Food Labeling Regulations 1996, SI 1996/1499, reg 31(1). 45 Commission Regulation (EC) No. 1825/2000 lays down detailed rules for the application of

Regulation (EC) No. 1760/2000 of the European Parliament and of the Council.

46 SI 1996/1499, Regulation 35. 47 SI 1996/1499, Regulation 38. 48 SI 1996/1499, Regulation 39. 49 The results were detailed in a paper prepared by Chris Gribben and Matthew Gitsham of

Ashridge Business School entitled Food labeling: Understanding consumer attitudes and behaviour dated March 2007.

2008 125 EUROPEAN UNION FOOD LABELING AND PACKAGING

In comparison, other sources of information, such as in-store information and store staff, were used much less than product packaging information and labeling. Indeed, that a product is packaged at all can itself convey information—bananas are sometimes bagged to differentiate Fairtrade and organically grown bananas from regular ones. At the same time, it would appear to be the case that consumers want minimal packaging and that the various schemes and initiatives to this end described above have been driven as much by consumer demand as by regulatory bodies, and the campaigns of various organizations and the press. For example, a MORI survey

• f 1,000 supermarket shoppers conducted last year supported this contention,

with 92 percent of people surveyed saying they wished to see a reduction in the

• verall amount of packaging and 93 percent wanting to see a rise in recyclable

packaging.50 However, such surveys are not necessarily reflective of the way in which the public actually treats packaging and packaging waste. It has been suggested that here is an instance where actions speak louder than words. Whilst people are quite prepared to support reduced packaging and packaging waste in principle, in practice there is far less enthusiasm when it involves altering life habits and infringing on the limited time available in today’s hectic lifestyles. A notable example was the public’s response to fortnightly rubbish collections, one of the UK government’s tactics for reducing waste going to landfill. It faced much opposition, including a “Great Bin Revolt” orchestrated by one national newspaper. Similarly, a “pay as you throw” proposal whereby households would be charged for the amount of rubbish they generate has also caused consternation. Meanwhile, Asda was forced to abandon a scheme to reduce excessive packaging trialed at two of its stores (which it had intended to extend nationwide had it been successful), after a lack of enthusiasm among customers for returning examples of over-packaging to these stores. The inconsistency of the public has been mirrored by the inconsistency of

• newspapers. The “Great Bin Revolt” is one example. Another example is that the

newspapers that are spearheading demands for a reduction in packaging and pack- aging waste are the very same newspapers which are often packaged in polythene

• wrappers. Indeed, sometimes such polythene wrappers contain sections wrapped

in further polythene wrappers. To some extent, retailers and manufacturers are caught between a rock and a hard

• place. While the need for minimal packaging is accepted, manufacturers and retailers

are often merely responding to consumer demand. In a television documentary in 2007, a leading supermarket was asked why peppers were sold both loose and col- lectively in plastic bags.51 Apparently, the supermarket had surveyed its customers but there was demand for peppers to be sold collectively, notwithstanding that the same volume of loose peppers could be purchased loose on an individual basis. Accordingly, the packaging industry’s complaint is that it is not responsible for the anti-social disposal of packaging because that is what people do, not what packaging does. Yet the packaging industry cannot absolve itself from responsi-

• bility. By analogy, car producers cannot claim that it is car drivers’ fault that the

atmosphere is polluted with car fumes on the basis that such producers are merely responding to consumer demand and do not put the petrol in the car which leads to the fumes. Rather, many are seeking to develop more eco-friendly cars. Similarly,

50 Shoppers want less packaging, survey shows, THE INDEPENDENT, July 9, 2007. 51 Channel 4 documentary entitled “Packaging is Rubbish.”

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manufacturers and retailers have a responsibility to educate and inform consum- ers and change their habits, and many have been pro-active in this respect. This is not necessarily an easy task. For example, while the introduction of a “plastax”

• f about 20 pounds on each plastic bag in Ireland in 2002 resulted in a 90 percent

reduction in their use, more plastic bin liners were purchased instead which are environmentally worse than carrier bags. Some suggest going further than merely educating consumers. Mark Constantine from Lush Cosmetics argues that a consumer revolution is needed.52 He suggests that this should range from asking cafes and restaurants to stop using sachets for milk, sugar and sauce (he demonstrated that it can take up to 120 individual packets

• f these products to fill one large carton/container) to boycotting supermarkets

which over-package their products and returning to markets and smaller shops where products are sold either loose or with minimal packaging. Yet while people may be educated to appreciate the reasons why a more environmentally friendly approach to packaging and packaging waste is advocated, it is difficult to see the revolution he suggests materializing at any time in the immediate future. In par- ticular, critics have depicted this as protectionism masquerading as a concern for the environment, with particular concern voiced about the desire to help poorer countries in the context of current initiatives to reduce third world debt and promote the growth of third world economies.

• IX. LEGAL MEASURES PROPOSED TO TACKLE PACKAGING AND

PACKAGING WASTE

If there is not to be a consumer-led revolution any time soon, it would appear that advocates of minimal packaging will have to rely on legal measures, some of which were referred to above.

• A. Essential Requirements

One of these elements is the lack of prosecutions under the Essential Require-

• ments. This has faced criticism, in particular given the limited nature of the fines

and broad defenses operating where there is “consumer acceptance,” a need to “provide identification” or for “stimulating purchase.” So far, there have been only four successful prosecutions of offenses under the Essential Requirements:

• Office World was found consistently to use large boxes to dispatch very small

items (on one occasion, it used a box over 14 times larger than the goods it contained) and was fined £2,000 plus £500 costs.

• A butcher sold pre-packed meat on an upturned polystyrene tray inside another

larger tray, making the meat appear bigger than it was. He was fined £1,000.

• Following a customer complaint that Cadbury’s Giant Chocolate Fingers at

Tesco were not actually giant (they came in a tin over 16 centimeters long but inside were individually wrapped chocolate fingers less than 12 centimeters long), the company responsible, Burton’s Foods Limited, was fined a total of £5,000.

52 Channel 4 documentary entitled “Packaging is Rubbish.”

2008 127 EUROPEAN UNION FOOD LABELING AND PACKAGING

• A firm called Nadia Luciani was fined £500 after a tin of dried mushroom

powder had a false bottom, making it three inches longer than necessary. Where prosecutions have been successful, they have tended to be linked with

• ffenses of misleading consumers under the Trades Descriptions Act (such as the

butcher) or involved transit packaging where a defense of consumer acceptance is less tenable (such as Office World). While it has been claimed that the subjective criteria in the regulations which

• perate as defenses have made enforcement difficult, it appears unlikely that there

will be any immediate change to the regulations until the next revision of the Pack- aging and Packaging Waste Directive. At a meeting of the European Technical Adaptation Committee (TAC) on packaging (chaired by the European Commission and comprised of members who are national experts from each of the EU member states) on September 4, 2007, it was announced that there would be further research into the implementation of the Essential Requirements following which it would be considered whether it was necessary to revise the legislation or introduce better enforcement measures.53 Part of the problem, at least in the UK, is that there may be insufficient resources that can be diverted to prosecutions, not least when trading standards officers are already overstretched. It has been suggested that a new national body should be created to deal with prosecutions of large-scale producers in conjunction with such

• fficers, and this notion was supported at the Liberal Democrat Party Conference
• n September 19, 2007.
• B. Producer Regulations

Meanwhile, the Government’s Waste Strategy for England 2007 has proposed that the Producer Regulations be amended to set optimal packaging standards for a product class, so that producers would be expected to use the lightest weight packaging where such an option exists.54 While this could be a positive step, the cost implications for small- and medium-sized enterprises will need to be carefully considered, and it remains to be seen whether any such amendment will, like the current Producer Regulations, exclude a number of such businesses from the ob- ligations (currently those having a turnover of £2 million or below and/or which handle 50 tons or less of packaging in a calendar year are excluded).

• C. Retail Packaging Recycling Bill

Another measure proposed was the Retail Packaging Recycling Bill. Introduced in the UK Parliament by Andrew Stunnell MP, its aim was to place the responsibil- ity for excessive packaging onto retailers, similar laws in Germany and Switzerland having successfully saved money and landfill according to the MP. The Bill required that certain retailers shall provide free of charge during business hours a collection point for any packaging materials sold or supplied by them and to require them to re-use or recycle the materials (where reasonably practicable)

• r safely dispose of such materials using a licensed waste disposal contractor. The

53 Unofficial note attached at the UK Government’s Department for Business Enterprise and

Regulatory Reform website at http://www.dti.gov.uk/innovation/sustainability/packaging/Packaging% 20in%20the%20EU/page38919.html

54 Page 61.

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retailers to which the bill was intended to apply must have a sales area greater than 250 square meters (2,690 square feet). In addition, the legislation did not only cover shops and restaurants and cafes, but also premises used for the provision

• f financial services, professional services (excluding health and medical services)

and any other services (including use as a betting office) which it is appropriate to provide in a shopping area where the services are provided principally to visiting members of the public. An attempt to introduce a similar bill seven years ago was unsuccessful, and this was due for its second reading in late 2007. In any event the government is already seeking to tackle excess retail packaging by the above-mentioned Courtauld Commitment (notwithstanding that this has been criticised for being a voluntary rather than compulsory commitment). In addition, the Bill has faced opposition, including from the British Retail Consortium which believes that supermarkets and other retailers are taking sufficient action (many provide collection facilities for a range of recyclable materials) and that the new legislation is impractical. For example, it could lead to safety risks, create a potential health hazard and fire risk, and place huge demands on staff time. Instead, the British Retail Consortium advocate home collection as part of a local authority’s regular refuse collection, with retailers contributing £4.5 billion to local authorities in business rates annu- ally to fund this service.55

• X. CONCLUSION: INCREASED LABELING OR REDUCED PACKAGING?

In practical terms, the extent to which such measures to reduce packaging are appropriate or are likely to be effective is uncertain. Similarly uncertain is the extent to which packaging needs to or should be minimized, and whether the impetus for change should come from consumers and the way in which packaging is handled rather than the way in which it is produced. Further debate is plainly required. Although the issue of packaging and packaging waste would, on the face of it, seem to be a simple one to resolve, the way forward appears to be anything but

• straight. Perhaps this is most evident in the conflicting desire to minimize packag-

ing at the same time as extending consumer choice and information. Increased labeling requirements form part of this desire. Indeed, the latest emanation of the Labeling, Presentation and Advertising of Foodstuffs Directive56 is based on the principle of functional labeling, and seeks to ensure that the consumer gets all the essential information as regards the composition of the product, the manufacturer, methods of storage and preparation, etc. As discussed earlier, this desire to increase the amount of information available to the consumer has also led to legislation to ensure that such information is not false, ambiguous or misleading, including in relation to nutrition and health claims on food products. It is unlikely that the regulatory powers that be are finished, as highlighted by debate concerning country

• f origin labeling requirements last year.

It is clear that the EU and the UK governments cannot have it both ways, pro- moting consumer choice and information whilst simultaneously hindering its suc- cess in practice by over-minimizing packaging. Whilet the Essential Requirements permit what would otherwise be excess packaging on the grounds of “consumer acceptance,” a need to “provide identification” or for “stimulating purchase,” there

55 Bill to tackle retail waste is put on hold, RETAIL BULLETIN, June 26, 2007. 56 Council Directive 2000/13/EC.

2008 129 EUROPEAN UNION FOOD LABELING AND PACKAGING

is plainly a tension which needs to be overcome, in perception if nothing else. It is easy to forget that packaging performs important functions, including the preserva- tion of food. Two particularly salient features are its use as a marketing tool and its need to provide nutritional and other required information under food labeling law, as the recent Nutrition and Health Claims Regulation and the multitude of other labeling legislation implicitly recognize. It is unlikely that legislative developments will end there, and as labeling requirements increase, a careful balance will need to be struck between both excessive and essential packaging and labeling.