Sales, Advertising and Labelling: General Food Labelling - QUIDs, Durability Indicators and Provenance

1 Introduction

The general labelling requirements are covered in the document on Sales, Advertising and Labelling: General Food Labelling.

 

2 Quantitative Ingredient Declarations (QUID)

The quantity of an ingredient or category of ingredients (QUID) used in the preparation of a food must be indicated where the ingredient or category of ingredients:

1. Appears in the name of the food or is usually associated with that name by the consumer.

2. Is emphasised on the labelling in words, pictures or graphics.

3. Is essential to characterise a food and to distinguish it from products with which it might be confused because of its name or appearance.

The FSA’s guidance notes on QUID¹ place similar guidance developed by the European Commission² in a UK context and should be read in conjunction with regulation 19 of the 1996 Regulations.³ The guidance sets out helpful examples of how QUID declarations work in practice for illustrative products such as ‘Lancashire Hot Pot’ and ‘Summer Pudding’,⁴ both of which have customary names, the former being associated with mutton and latter soft fruit berries.

In general, where emphasis is placed on an ingredient a QUID declaration is required and the third category covers foods marketed under the same name but having a significantly different composition across EU countries. The only examples recognised at EU level are mayonnaise and marzipan.⁵

A QUID for an ingredient or category of ingredients is not required in the following situations:

1. The drained net weight (in addition to the net weight) of which is indicated in accordance Directive 2000/13/EC,⁶ namely where a solid foodstuff is presented in a liquid medium, the drained net weight of the foodstuff must be indicated on the labelling.⁷

2. The quantities are already required to be given on the labelling under EU provisions.⁸

3. Which is used in small quantities for the purposes of flavouring.

4. Which, though it appears in the name of the food, does not govern consumer choice because the variation in quantity is not essential to characterise the food or does not distinguish it from similar foods.

5. Where specific EU provisions stipulate precisely the quantity of an ingredient or category of ingredients without providing for their indication on the label.

6. In the cases referred to in Section 3 paragraph (d) above concerning ingredients mixed in varying proportions.

The QUID must be expressed as a percentage, determined as at the time of use of the ingredient or category of ingredients in the preparation of the food and appear in or next to the name of the food or in the list of ingredients. The following exceptions apply:

1. Where food has lost moisture as a result of treatment, the QUID must be expressed as a percentage determined by reference to the finished product unless that quantity, or the total quantity of the ingredients or categories of ingredients indicated, would exceed 100%, in which case the QUID must be on the basis of the weight of the ingredient or category of ingredients used to prepare 100g of the finished product.

2. The QUID for a volatile ingredient or category of volatile ingredients used must be on the basis of its proportion by weight in the finished product.

3. The QUID for an ingredient or category of ingredients used in concentrated or dehydrated form which is reconstituted during preparation of the food may be on the basis of its proportion by weight before concentration or dehydration.

4. Where the food is in concentrated or dehydrated form and is intended to be reconstituted by the addition of water as directed in the labelling of the food, the QUID for the ingredient or category of ingredients may be on the basis of its proportion by weight in the food when reconstituted as so directed.

 

3 Durability Indications

There are two forms of 'appropriate durability indication',⁹ in the case of:

1. Food other than one specified in the next following paragraph b) below, an indication of minimum durability.

2. Food which, from the microbiological point of view, is highly perishable and in consequence likely after a short period to constitute an immediate danger to human health, a 'use by' date.

The consequences of a breach of the requirements relating to ‘use by’ dates are more serious than those concerning ‘best before’ dates reflecting the difference between highly perishable foods which may become a safety risk after the ‘use by’ date and those where optimum quality is in decline after the ‘best before’ date. It is an offence to sell food after the 'use by' date, but not after the 'best before' date. Where food is sold after the 'best before' date results injury to a consumer, this fact may become evidence and taken into account in any civil proceedings which may be brought.

The use of terms such as ‘display until’ have no legal basis but exist for the convenience of food retailers and as instructions to staff.

3.1 Minimum Durability or ‘Best Before’

The minimum durability of a food¹⁰ must, subject to the exceptions explained below, be indicated by the words 'best before' followed by:

1. The date up to and including which the food can reasonably be expected to retain its specific properties if properly stored.

2. Any storage conditions which need to be observed if the food is to retain its specific properties until that date.

The ‘best before’ date must be expressed in terms of a day, month and year (in that order), except that in the case of a food which can reasonably be expected to retain its specific properties for:

1. Three months or less, it may be expressed in terms of a day and month only.

2. More than three months but not more than 18 months it may be expressed in terms of a month and year only, if the words 'best before' are replaced by the words 'best before end'.

3. More than 18 months it may be expressed either in terms of a month and year only or in terms of a year only, if (in either case) the words 'best before' are replaced by the words 'best before end'.

The ‘best before’ date and any storage conditions which need to be observed if the food is to retain its specific properties may appear on the labelling separately from the words 'best before' or 'best before end' provided that these words are followed by a reference to the place where this information can be found, for example, ‘best before 30 November – see lid’.

3.2 ‘Use By’

There is no list of foods which require a ‘use by’ date. The decision whether or not a food, from a microbiological point of view, is highly perishable and in consequence likely after a short period to constitute an immediate danger to human health is for the manufacturer or packer who first marks the food. Guidance issued by Defra states:

The ‘use by’ date mark is a clear instruction to consumers not to consume the product after that date. An inaccurately determined shelf life can potentially pose a danger to human health. The ‘best before’ date should be applied to shelf stable foods that are safe to consume or perishable foods that do not deteriorate rapidly and become unsafe to eat, after the date mark.¹¹

The guidance goes on to provide a useful decision tree which outlines key points in deciding which mark to apply.¹²

Where food requires a 'use by' date it must be indicated¹³ by the words 'use by' followed by:

1. The date up to and including which the food, if properly stored, is recommended for use.

2. Any storage conditions which need to be observed.

The 'use by' date must be expressed in terms either of a day and month (in that order) or of a day, a month and a year (in that order).

The ‘use by’ date and any storage conditions which need to be observed may appear separately from the words 'use by', provided these words are followed by a reference to the place where this information can be found, see the example above in relation to ‘best before’ dates.

3.3 Durability Indication not Required

The following foods need not be marked or labelled with an appropriate durability indication:¹⁴

1. Fresh fruit and vegetables (including potatoes but not including sprouting seeds, legume sprouts and similar products) which have not been peeled or cut into pieces.

2. Wine, liqueur wine, sparkling wine, quality sparkling wine, quality aromatic sparkling wine, aerated sparkling wine, semi-sparkling wine, aerated semi-sparkling wine, aromatised wine and any similar drink obtained from fruit other than grapes.

3. Any specified drink¹⁵ made from grapes or grape musts.

4. Any drink with an alcoholic strength by volume of 10% or more.

5. Any soft drink, fruit juice or fruit nectar or alcoholic drink, sold in a container containing more than 5 litres and intended for supply to catering establishments.

6. Any flour confectionery and bread which, given the nature of its content, is normally consumed within 24 hours of its preparation.

7. Vinegar.

8. Cooking and table salt.

9. Solid sugar and products consisting almost solely of flavoured or coloured sugars.

10. Chewing gums and similar products.

11. Edible ices in individual portions.

3.4 Offences and Penalties

A person who sells any food which is not marked or labelled in accordance with the provisions of Part II of the 1996 Regulations or sells any food after the date shown in a 'use by' date relating to it, or being a person other than the manufacturer, packer or seller established within the European Community, who was originally responsible for so marking the food, removes or alters the appropriate durability indication relating to that food, is guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.¹⁶

In any proceedings for an offence where it is alleged the defendant removed or altered the appropriate durability indication it is a defence for the person charged to prove that the removal or alteration was done in pursuance of written authorisation from a person capable of making the removal or alteration without committing the offence.

In Torfaen County Borough Council v Douglas Willis Limited¹⁷ the wording of the regulation¹⁸ was considered in the Supreme Court and it was held that all the prosecution had to prove to secure a conviction was that (i) the food was in Douglas Willis’ possession for sale, (ii) that the food had a ‘use by’ date or label ‘relating to’ it, and (iii) that the date shown had passed. There is more about this case on the Artisan Food Law Blog.

 

4 Origin or Provenance of Food

Country of origin labelling (COOL) is a current topic of discussion in many areas. Where COOL provision is made in relation to particular foods it is covered in the relevant document. What follows is of more general application and draws upon FSA guidance.¹⁹

Food which is ready for delivery to the ultimate consumer or to a catering establishment must be marked or labelled with “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 origin or provenance of the food.”²⁰

There is also the general requirement that such particulars be easy to understand, clearly legible and indelible, marked in a conspicuous place which is easily visible and not be in any way hidden, obscured or interrupted by any other written or pictorial matter.²¹

There is a range of foods exempt from the requirement²² concerning place of origin or provenance are as follows:

• Food (other than milk²³) which is not prepacked or which is prepacked for direct sale, including such foods sold at catering establishments.

• White bread or flour confectionery.²⁴

• Individually wrapped fancy confectionery products not enclosed in any further packaging and which are intended for sale as single items.

• Carcasses and parts of carcasses that are not intended for sale in one piece.

• Any prepacked food (other than milk) contained in an indelibly marked glass bottle intended for re-use which has no label, ring or collar.

• Any prepacked food contained in packaging where the largest surface area of such packaging is less than 10 square centimetres.

• Any prepacked food sold or supplied as an individual portion which is intended as a minor accompaniment to another food or service.

There is no statutory definition of ‘place of origin or provenance’ in domestic or EU food legislation. In the International Food Standards of the Codex Alimentarius and under World Trade Organisation rules the country of origin is taken to be the place of last substantial change, which would be consistent with other domestic legislation.²⁵ The FSA adopts this approach in its interpretation of the 1996 Regulations and seeks to illustrate how best to avoid misleading origin labelling which might be considered to be a breach of the 1996 Regulations.

Some products carry the name of a country or place to describe their origin as part of the name of the food. ‘British Steak Pie’ or ‘French Beef Bourguignon’, for example, which forms an origin declaration. If the place that is declared as the of origin of the food, according to the principle of last substantial change, is not the same as the place of origin of its primary ingredients, in order for labelling not to be misleading it may be necessary to provide information on the origin of those ingredients. The FSA provides the following examples:²⁶

• Pork sausages made in Britain using pork from countries outside the UK are not described as "British pork sausages". Instead they could bear the name “Pork Sausages” and if helpful, a further declaration could be made as described –

"Made in Britain from pork imported from Denmark or Belgium (i.e. more than one country)"; or

“Made in Britain from Dutch pork”

• Salmon smoked in Scotland but made from Norwegian salmon is not described as “Scottish smoked salmon” but is described as –

“Norwegian salmon smoked in Scotland”, or

“imported salmon smoked in Scotland”.

Other terms that could similarly be used are “Baked in …”, “Pressed in …”,

“Packed in …”, “Sliced and packed in …” or “Processed in …”.