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The New European Regulation on the Provision of Voluntary Indication of Origin or Place of Provenance of Foods

On last May 28, the European Commission implemented Article 26.3 of the European Regulation no. 1169/2011 (“FIC Regulation”) providing the rules for indicating the country of origin or place of provenance of the primary ingredient of a food (“Implementing Regulation”).

The Implementing Regulation applies when the country of origin or the place of provenance of a food is displayed, voluntarily or mandatorily, by any means such as statements, pictorial presentation, symbols or terms, and this displayed country of origin or place of provenance is not the same as that of its primary ingredient. Under such circumstances, the new Regulation provides an obligation to tell the consumers the origin of the primary ingredient where the origin of the food is displayed on the label. Specifically, this labeling is mandatory when its omission could mislead the consumers regarding the true country of origin or place of provenance of the food ingredients. However, there are some exemptions that apply in connection with: a) customary and generic names which include geographic terms that literally indicate origin but whose understanding is not an indication of origin or place of provenance of the food, such as “Bolognese sauce”; and b) protected geographical indications and registered trademarks.

With regard to the mandatory labeling explained above, the Implementing Regulation provides several options that may be chosen to design a label that is in compliance with the new rules, such as:

  1. – a reference to a geographical area: ‘EU’‘non-EU’or ‘EU and non-EU’;
  2. – regions or any other geographical area either within the several Member States or third countries;
  3. – FAO fishing areas, sea or freshwater body;
  4. – member state(s) or third country(ies);
  5. – the country of origin or place of provenance in accordance with specific Union provisions
  6. applicable to the primary ingredient(s) as such.

Alternatively, according to the Implementing Regulation, food business operators (FBOs) may use the following or similar statement to inform the consumers that the primary ingredient(s) “does not originate from the country of origin or the place of provenance of the food”.

The Implementing Regulation, however, raises several interpretation issues which remain unsolved. In particular, this regulation does not further clarify the notion of the ‘primary ingredient’. It, therefore, remains unclear whether, according to the definition given by the FIC Regulation, the notion of “primary ingredient” refers to one or several ingredients, or what happens in cases where the quantitative ingredient declaration is not required.

The deadline for compliance with the said new rules on the indication of the country of origin or place of provenance of the primary ingredient of a food is April 1, 2020 (instead of 1 April 2019 as initially proposed). In the meantime, transitional measures will apply to food placed on the market or labeled before 1 April 2020 which they could be further marketed in accordance with such measures until exhaustion of stocks.

Compliments of AEM Carnelutti, a member of the EACCNY