Is Italian coffee really from Italy? What about the origin of Belgian chocolate? It will be clearer for consumers soon

Equally absurd is the idea of cocoa plantations around Brussels or Antwerp. Yet many of these products are claimed to be produced in these countries and their packaging boasts national flags.

The European legislation responded to the fact that a conflict between the country of origin of a food and its primary ingredient may in some cases mislead the consumer already back in 2011 with Regulation (EU) No 1169/2011 (the "Regulation"), in particular Article 26 (3) thereof. However, the application of this Article had been postponed until the adoption of an implementing act for its application, which became Implementing Regulation (EU) No 2018/775 (the "Implementing Regulation") only on 28 May 2018. The Implementing Regulation, whose applicability was established from 1 April 2020, should help European consumers find their way around the country of origin or place of provenance of the primary ingredient of a food.

First, it is necessary to clarify several terms. The country of origin of a food is generally considered to be the country where the food was wholly obtained. If its production took place in the territory of more than one country, then the country of origin of the food will be considered to be the country where its last substantial processing took place. [1] The place of provenance means any place where a food is indicated to come from and that is not the "country of origin" as defined above. [2] In this light, the place of provenance may be for example a city, region, group of countries, etc. For the sake of simplicity, the term "country of origin", which for the purposes of this Article also includes the place of provenance, is further used in this text. Finally, it is necessary to clarify what "primary ingredient" means. It is one or more ingredients of a food that represent more than 50 % of that food or which are usually associated with the name of the food by the consumer and for which in most cases a quantitative indication (QUID) is required. [3]

In which cases will the obligation to provide the country of origin of the primary ingredient apply?

First, it is important to note that the country of origin of the primary ingredient does not always have to appear on the food packaging. This obligation is only activated if both of the following conditions are cumulatively met:

1. if the country of origin of the food is given, regardless of whether this is done voluntarily or compulsorily in accordance with Article 26 (2) (a) of the Regulation [4]; and
2. the country of origin of the food differs from the country of origin of the primary ingredient (for example, coffee whose country of origin is Italy and whose coffee beans originated in Ethiopia).

Indication of the country of origin of a food is not only an explicit verbal statement but also any pictorial representation, symbol or term providing a place or geographical area (typically a flag).

The Implementing Regulation provides a few exceptions to which the obligation to indicate the country of origin of the primary ingredient in accordance with the Implementing Regulation does not apply. This is namely the case of

1. geographic terms included in customary [5] and generic names [6] where those terms literally indicate origin but whose common understanding is not an indication of country of origin (for example, Dijon mustard or Wiener schnitzel);
2. geographical indications protected under Regulation (EU) No 1151/2012, Regulation (EU) No 1308/2013, Regulation (ES) No 110/2008 or Regulation (EU) No 251/2014 or under international agreements (e.g. Carlsbad wafers or Lübecker Marzipan);
3. trademarks, if they constitute an origin indication (e.g. Budweiser Budvar).

In the case of geographical indications (point (ii) above) and trademarks (point (iii) above) it is only a temporary exception until specific rules concerning the obligation to indicate the country of origin of the primary ingredient on such indication are adopted.

How is the country of origin of the primary ingredient provided?

If the food business operator is obliged to provide the country of origin of the primary ingredient, they may choose whether

1. to give the country of origin of the primary ingredient (in other words, specify the country from which the primary ingredient originates); or
2. to indicate the country of origin of the primary ingredient as being different to that of the food.

Article 2 of the Implementing Regulation sets out the precise rules for the procedure for the above two options.

If the food business operator decides to indicate that the country of origin of the primary ingredient differs from the country of origin of the food (point (ii) above), this information must appear on the food packaging by means of the following statement: "(name of the primary ingredient) do/does not originate from (the country of origin of the food)". Alternatively, a statement of a similar wording may be used as long as it will have the same meaning for the consumer.

If a food business operator opts for a specific indication of the country of origin of the primary ingredient (point (i) above), this may be provided by reference to one of the following geographical areas:

1. "EU", "non-EU" or "EU and non-EU" (literally in that wording); or
2. region or any other geographical area either within several Member States or within third countries, if defined as such under public international law or well understood by normally informed average consumers (e.g. Scandinavia, the Mediterranean); or
3. FAO fishing area, or sea or freshwater body if defined as such under international law or well understood by normally informed average consumers (e.g. Black Sea, North Sea); or
4. Member State(s) or third country/countries (e.g. Czech Republic, Switzerland); or
5. region or any other geographical area within a Member State or within a third country, which is well understood by normally informed average consumers (e.g. Pálava, Bavaria); or
6. the country of origin or place of provenance in accordance with specific provisions of the EU applicable for the primary ingredient(s) as such (the EU regulates the indication of the country of origin, for example, for certain types of meat, honey, olive oil, fruit, vegetables).

The country of origin of the primary ingredient must be indicated in a font of a size which is not smaller than the minimum font size as required in accordance with Article 13 (2) of the Regulation (i.e. the height of the lower-case letter "x" must be at least 1.2 mm). If the country of origin of the food is indicated in words, the font height indicating the country of origin of the primary ingredient must not be more than 25 % smaller than the font height of the country of origin of the food (at the same time, the minimum font size according to the previous sentence must be observed). The country of origin of the primary ingredient must in any case be provided in the same field of vision as the country of origin of the food. All the surfaces of a package that can be read from a single viewing point are considered to be the same field of view. [7]

When will the obligation to provide the country of origin of the primary ingredient begin to apply?

As already mentioned in the introduction, the Implementing Regulation will apply from 1 April 2020. This means that from this date onwards, food business operators are obliged to indicate the primary ingredient in the cases specified in the Implementing Regulation.

Under the transitional measures of the Implementing Regulation, food placed on the market or labelled before 1 April 2020 may be marketed until the stocks are exhausted.

In conclusion, it is debatable whether the application of the Implementing Regulation will indeed give the European consumer greater knowledge of the origin of the food purchased or its primary ingredient. The arguments against this include the freely conceived options for specifying the country of origin of the primary ingredient (e.g. an option may be that the primary ingredient originates in EU and non-EU, but its informative value is questionable) or the possibility to provide only a statement that the country of origin of the primary ingredient differs from the country of origin of the food without further specifying the origin of the primary ingredient. Moreover, in most cases it will be possible to completely avoid the obligation to provide the country of origin of the primary ingredient by refraining from indicating the country of origin of the food as such. Nevertheless, it can be summarised that the new legislation will contribute to a certain increase in the transparency of information concerning the country of origin of the primary ingredient. The extent to which this happens in practice, however, will largely depend on the will and attitude of individual food business operators.

footnotes:
[1] See Article 60 of Regulation (EU) No 952/2013.
[2] See Article 2 (2) (g) of the Regulation.
[3] See Article 2 (2) (q) of the Regulation.
[4] According to Article 26 (2) (a) of the Regulation, the indication of the country of origin is obligatory where failure to indicate this might mislead the consumer as to the true country of origin of the food, in particular if the information accompanying the food or the label as a whole would otherwise imply that the food has a different country of origin. The trigger for the obligation to indicate the country of origin of a food will typically be the image on the food label that the consumer usually associates with a particular country of origin when the actual country of origin is different (for example, a windmill image on biscuits manufactured in Germany).
[5] The definition of "customary name" can be found in Article 2 (2) (o) of the Regulation, according to which it is the name that is accepted by customers in the Member State where the food is sold as the name of the food without further explanation.
[6] For the purpose of explaining the "generic term", it may be based on the definition given in Article 3 (6) of Regulation (EU) No 1151/2012, according to which generic terms are the names of products that have become the generic name of the product in the EU, even though they refer to the place, region or country where the products were originally produced or marketed.
[7] See Article 2 (2) (k) of the Regulation.