Marketing standards for milk and milk products are subject to Regulation (EC) No 1234/2007, which establishes a common organisation of agricultural markets, in particular Article 114, Annexes XII and XIII. The Regulation is supplemented and enforced by The Drinking Milk (England) Regulations 2008.1
Foodstuffs intended for human consumption may be marketed as milk and milk products if they comply with the requirements of Annex XII.
Milk and cream, not concentrated nor containing added sugar or other sweetening matter2 may only be marketed in accordance with the requirements of Annex XIII.
There is a separate document on Raw Drinking Milk which covers the specific legal requirements governing the sale and supply of this product.
2 Definition and Requirements – Milk and Milk Products
The term ‘milk’ means exclusively the normal mammary secretion obtained from one or more milkings without addition or extraction.3 However, the term ‘milk’ may be used:
For milk treated without altering its composition or for milk the fat content of which is standardised (see below).4
In association with a word or words to designate the type, grade, origin and/or intended use of such milk or to describe the physical treatment or the modification in composition to which it has been subjected, provided that the modification is restricted to an addition and/or withdrawal of natural milk constituents.
A ‘milk product’ means a product derived exclusively from milk, on the understanding that substances necessary for their manufacture may be added provided that those substances are not used for the purpose of replacing, in whole or in part, any milk constituent. The designations reserved exclusively for milk products include: ‘Whey’, ‘Cream’, ‘Butter’, ‘Buttermilk’, ‘Caseins’, ‘Cheese’ and ‘Yoghurt’.5
Also included are any designations or names stipulated in the implementation of Directive 2000/13/EC on the labelling, presentation and advertising of foodstuffs which are actually used for milk products.6
The term ‘milk’ and the designations used for milk products may also be used in association with a word or words to designate composite products, provided no part takes or is intended to take the place of any milk constituent and milk or a milk product is an essential part either in terms of quantity or for characterisation of the product.
The origin of milk and milk products to be defined by the Commission must be stated if it is not bovine.
3 Definition and Requirements – Drinking Milk
Raw milk: milk which has not been heated above 40oC or subjected to treatment having equivalent effect.9
Whole milk: heat-treated milk with a fat content which meets one of the following:
(i) Standardised whole milk: milk with a fat content of at least 3.50% (m/m).
(ii) Non-standardised whole milk: milk with a fat content that has not been altered since milking by the addition or removal of milk fats or mixing with milk the natural fat content of which has been altered. In either case, the fat content may not be less than 3.50% (m/m).
Semi-skimmed milk: heat-treated milk with a fat between 1.50% and 1.80% (m/m).
Skimmed-milk: heat-treated milk with a fat content no more than 0.50% (m/m).
The following modifications,10 without prejudice to the requirement in paragraph b(ii) above concerning non-standardised whole milk, are allowed:
In order to meet the fat contents laid down for drinking milk, modification of the natural fat content by the removal or addition of cream or the addition of whole milk, semi-skimmed milk or skimmed milk.
The enrichment of milk with milk proteins, mineral salts or vitamins.
The reduction of the lactose content by conversion to glucose and galactose.
The modifications in paragraphs (b) and (c) are allowed only if they are indelibly indicated on the packing of the product and may be easily seen and read.
Finally, drinking milk shall:
Have a freezing point close to the average freezing point for raw milk recorded in the area of origin of the drinking milk collected.
Have a mass not less than 1028 grams per litre for milk containing 3.5% (m/m) of fat at a temperature of 20oC or the equivalent weight per litre for milk having a different fat content.
Contain a minimum 2.9% (m/m) of protein for milk containing 3.5 % (m/m) fat or an equivalent concentration in the case of milk having a different fat content.11
Only milk complying with these requirements may be delivered or sold without processing to the final consumer, either directly or through the intermediary of restaurants, hospitals, canteens or other similar mass caterers. The sales descriptions to be used are those stated above: raw milk, whole milk, semi-skimmed milk and skimmed milk.
The Drinking Milk (England) Regulations 2008 provide that no person may sell or deliver milk, use or omit to use a sales description in contravention of the requirements laid down for drinking milk or those relating to sales descriptions.12 Any person who does so commits an offence and is liable to a fine up to Level 5 on the standard scale.13
A number of provisions of the Food Safety Act 1990 apply for the purposes of the 2008 Regulations, including the extended meaning of sale, presumption that food is intended for human consumption, offences committed due to the default of another and the defence of due diligence.14
4 Hygiene Rules
4.1 Primary Production Rules
Hygiene rules in relation to primary production are more extensively covered in the document on Food Hygiene. A summary of the provisions relevant to the primary production of raw milk is included here.
‘Primary production’ means the production, rearing or growing of primary products including harvesting, milking and farmed animal production prior to slaughter. It also includes hunting and fishing and the harvesting of wild products.15 Regulation (EC) 852/2004 on the hygiene of foodstuffs defines ‘primary products’ and sets out general arrangements for food business operators carrying out primary production and related activities.16
‘Primary products’ means products of primary production including products of the soil, of stock farming, of hunting and fishing, and therefore includes raw milk.
The general arrangements apply to the transport, storage and handling of raw milk at the place of production, provided that this does not substantially alter its nature. In the case of milk production the general hygiene arrangements17 in summary cover:
A general duty, so far as possible, to protect against contamination, having regard to any processing milk will subsequently undergo.
Compliance with appropriate EU and national legislation relating to the control of hazards in primary production and associated operations, including measures to control contamination arising from the air, soil, water, feed, fertilisers, veterinary medicinal products, plant protection products and biocides and the storage, handling and disposal of waste; and measures relating to animal health and welfare and plant health that have implications for human health, including programmes for the monitoring and control of zoonoses and zoonotic agents.
Take adequate measures, as appropriate, to:
Keep facilities used clean and, where necessary after cleaning, to disinfect them in an appropriate manner.
Keep clean and, where necessary after cleaning, to disinfect, in an appropriate manner, equipment, containers, crates, vehicles and vessels.
Ensure the cleanliness of animals going to slaughter and, where necessary, production animals.
Use potable water, or clean water, whenever necessary to prevent contamination.
Ensure that staff handling foodstuffs are in good health and undergo training on health risks.
Prevent animals and pests from causing contamination.
Store and handle waste and hazardous substances so as to prevent contamination.
Prevent the introduction and spread of contagious diseases transmissible to humans through food, including precautionary measures when introducing new animals and reporting suspected outbreaks of disease to the competent authority.
Use feed additives and veterinary medicinal products correctly and as required by the relevant legislation.
Take appropriate remedial action when informed of problems identified during official controls.
Keep and retain records relating to:
Measures put in place to control hazards in an appropriate manner and for an appropriate period commensurate with the nature and size of the food business, and make relevant information available to the competent authority and receiving food business operators on request.
Keep records on the nature and origin of feed fed to the animals; veterinary medicinal products or other treatments administered to the animals, dates of administration and withdrawal periods; the occurrence of diseases that may affect the safety of products of animal origin; the results of any analyses carried out on samples taken from animals or other samples taken for diagnostic purposes, that have importance for human health; and any relevant reports on checks carried out on animals or products of animal origin.
Assistance may be provided by other persons, including veterinarians, agronomists and farm technicians, with the keeping of records.
The general arrangements go on to set out recommendations in the development of guidance on good hygiene practice.
4.2 Responsibilities for the Enforcement of Hygiene Legislation for Milk
The Food Standards Agency (FSA) takes the lead role in connection with hygiene legislation relating to milk and milk production, including on farm incidents putting milk or milk products at risk of tuberculosis contamination. Defra’s Animal Health and Veterinary Laboratories Agency is responsible for tuberculosis (TB) infection in cattle and undertakes the necessary enforcement inspections on behalf of the FSA.
5 Labelling Milk and Misleading Descriptions
The general requirements set out under The Food Labelling Regulations 1996 are covered in the section on Food Marketing, but a number of specific provisions which apply to milk are dealt with here.
The 1996 Regulations apply generally to food which is ready for delivery to the ultimate consumer or to a catering establishment19 and ‘milk’ means the milk intended for sale, or sold, for human consumption of:
One or more cows, and includes skimmed, semi-skimmed and whole milk; or
One or more ewes, goats or buffaloes.20
An indication must be provided where a purchaser could be misled by the omission of a reference to a treatment to which milk has been subjected. For example, milk which has been
'pasteurised', ‘homogenised’, 'sterilised', 'condensed' or subjected to 'UHT' should carry an indication of the relevant process on the label.21
Milk which is prepacked for direct sale is not subject to the general labelling requirement22 except for the name of the food and the requirement to 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. In the case of raw milk there is the additional requirement to include the name or business name and an address or registered office of the manufacturer or packer.23
Cows’ milk ‘prepacked for direct sale’ means milk put into containers on the premises where the milk is produced by the person owning or having control of the herd from which the milk is produced, for sale on those premises or from a vehicle or stall.24
In the case of milk contained in a bottle, any particulars required to be given, may be given on the bottle cap.25
The container of any product consisting of skimmed milk together with non-milk fat, which is capable of being used as a substitute for milk, and is neither an infant formula or a follow-on formula, nor a product specially formulated for infants or young children for medical purposes, must be prominently marked or labelled with a warning that the product is unfit, or not to be used, as food for babies.26
The 1996 Regulations prohibit a range of misleading food descriptions. In regard to milk, the word 'milk' or any other word or description which implies that the food being described contains milk must not be used as part of the name of a food that contains the milk of an animal other than a cow, unless:
The milk has all the normal constituents in their natural proportions and the word or description is accompanied by the name of that animal; or
The milk has been subjected to a process or treatment, and the word or description is accompanied by the name of that animal and an indication of that process or treatment; or
The word or description is used in accordance with any regulations made, or having effect as if made, under the Food Safety Act 1990 or any order having effect as if contained in regulations so made.27
It is an offence28 punishable with a fine not exceeding level 5 on the standard scale for any person to:
Sell food not marked or labelled in accordance with the 1996 Regulations
Sell or advertise for sale food in respect of which a claim is made, nutrition labelling is given or a description or a name is used in contravention the 1996 Regulations.
Sell food from a vending machine in contravention of regulation 29.
Sell food after the date shown in a 'use by' date relating to it.
Remove or alter the appropriate durability indication relating to food being a person who is not the manufacturer, the packer, or the seller established within the European Union originally responsible for so marking the food.
8 Milk and Country of Origin Labelling (COOL)
The European Commission is considering the adoption of mandatory country of origin labelling (COOL) for milk and milk used as an ingredient in dairy products. The move is opposed by the European Dairy Association on the grounds that it would create unnecessary complications for the industry. Dairy UK, on the other hand accept COOL will cause problems but consumer preference should be the priority.29
It remains to be seen what approach the Commission takes on this issue, it is commissioning a study on the impact of such legislation. Meanwhile, the Commission has blocked a move by Italy to require shelf-stable milk to indicate on the label the country of origin of the dairy farm from which the milk came.30
7 Condensed Milk and Dried Milk
Condensed milk and dried milk are subject to The Condensed Milk and Dried Milk Regulations 200331 which give effect to Directive 2001/114/EC. The 2003 Regulations generally require products be labelled with the percentage of milk fat, expressed by weight in relation to the finished product. The Food Standards Agency has produced comprehensive non-statutory guidance aimed at facilitating the uniform application and enforcement of the law with particular reference to those provisions which ensure consumers are presented with meaningful and accurately labelled products which meet the production requirements.32
8 Milk Imported from Outside the EU
Regulation (EU) 605/2010 lays down animal and public health and veterinary certification conditions for the introduction of raw milk and dairy products intended for human consumption to the EU. The import of raw milk and dairy products from designated third countries must be authorised by Member States.
Products imported into the European Union for sale as drinking milk must comply with Article 114 and Annex XIII.
3 Ibid., Annex XII, para II(1)
4 See paragraph 3(b)(i) below.
5 Op. cit., Annex XII, point II(2)(a)
7 Op. cit., Article 114 and Annex XIII, para I(a)
8 Op. cit., Annex XIII, para I(b)
9 There is a separate document on Raw Drinking Milk.
10 Op. cit., Annex XIII, para III(2)
11 Op. cit., Annex XIII, para III(3)
13 Currently £5,000
14 Food Safety Act 1990, ss2, 3, 20 and 21
17 Ibid., Annex I, Part A, para II
23 Ibid., r23(2)(a) and (b); see also r26 in its application to indelibly marked glass bottles intended for re-use and r27 in relation to milk sold at catering establishments such as restaurants, pubs, schools, hospitals, etc. The provisions applying to raw milk are more fully considered in a separate document.
29 Prioritise consumers not industry in milk origin labelling debate, Dairy UK urges EDA, DAIRYreporter.com, 8 August 2013 <http://www.dairyreporter.com/Regulation-Safety/Prioritise-consumers-not-... accessed 4 September 2013
30 2013/444/EU: Commission Implementing Decision of 28 August 2013 concerning the Italian draft Decree on the methods for indicating the origin for shelf-stable milk, UHT milk, microfiltered pasteurised milk and high-temperature pasteurised milk
32 Food Standards Agency, The Condensed Milk and Dried Milk Regulations 2003 (as amended) Version 2, 29 April 2008