European Union: The New EU Regulation On The Provision Of Food Information – Its Application To Airlines

Last Updated: 10 February 2012
Article by Tina Collier and Peter Macara

EU Regulation 1169/2011 on the provision of food information to consumers was published in the Official Journal of the European Union on 22 November 2011 and entered into force 20 days later. Via the use of transitional periods of 3 and 5 years, its provisions will not become immediately applicable. The Regulation has direct effect in all Member States. Importantly also, its provisions will apply not only to EU airlines and caterers, but also to non- EU airlines whose flights depart from an EU Member State.

The Regulation

The aim of Regulation 1169/2011 is to consolidate, modify, simplify and clarify current legislation on labelling, presentation and advertising of foodstuffs (including nutrition labelling) so that food information can be more easily understood by the final consumer, thereby assisting the consumer to make, for example, particular health choices. The Regulation repeals (amongst others) EC Directive 90/496/EEC on nutrition labelling for foodstuffs and EC Directive 2000/13/EC on food labelling.

Regulation 1169/2011 uses European Commission "delegated acts" to allow for suggested amendments and additions to the Regulation. In this way, the intention is for the Regulation to evolve over time into something that is workable in practice and that can be adapted to the changing social, economic and technological environment. The Commission must also produce reports on how to deal with further issues, such as energy labelling on alcoholic beverages and trans fat (ie, chemically altered vegetable oils used to prolong shelf life, but which have no nutrional value and increase "bad" cholesterol). A watchful eye therefore needs to be kept over these evolving provisions.

Mandatory food information

The main provisions of the Regulation deal with mandatory food information which must be displayed (using a specified minimum font size) on prepacked food. Some of these requirements already existed in the repealed legislation mentioned above. Article 9 of the Regulation sets out the required mandatory food information including, amongst others things, the name of the food, its ingredients, any ingredient or processing aid (specifically identified by the Regulation) which can cause allergies or intolerances, and the date of minimum durability or the 'use by' date. Additional mandatory particulars under Article 10 and Annex III of the Regulation apply to certain specified foodstuffs - for example (amongst other things), it should be stated that drinks (excluding coffee and tea) with high caffeine content have a high caffeine content and that they are not recommended for children or pregnant or breast-feeding women.

For non-prepacked food, Article 44 specifies that being able to provide the allergen/intolerances information is mandatory, but that the remaining food information requirements in Articles 9 and 10 and Annex III are not, unless Member States adopt national measures requiring some or all of those particulars to be provided. National measures may therefore differ between Member States for non-prepacked food.

These mandatory food information provisions will apply along with most of the remainder of the Regulation from 13 December 2014, i.e. a transitional period of 3 years has been allowed.

There is a mandatory nutrition declaration (under Article 30 of the Regulation) which must be presented in tabular format on prepacked food. It is to consist of the energy value and amounts of fat, saturates, carbohydrates, protein, sugars and salt, indicated per 100ml or per 100g, and which may additionally be shown on a per portion basis. All of this information is to be displayed in the same field of vision. The nutrition declaration will apply from 13 December 2016, i.e. 5 years after the Regulation's entry into force. However, voluntary implementation of the above provisions prior to their specified applicability date is allowed.

Application to airlines

Under Article 1(3) of the Regulation, its provisions are applicable to "catering services provided by transport undertakings when the departure takes place on the territories of the Member States to which the [EU] Treaties apply". By this wording and as stated in the introduction above, the Regulation therefore applies to all airlines (both EU and non-EU), as transport undertakings, with flights departing from the EU, even when the destinations of those flights are outside of the EU. It is apparent from previous drafts of the Regulation that this provision was inserted at a late stage of the drafting process. Initially, application of the Regulation was to "routes between two points within Union territory" . However, the final version of the Regulation reaches much further and has much wider implications for both EU and non-EU airlines operating from the EU.

EU-based catering companies and all airlines will therefore need to ensure that the Regulation's provisions are complied with after expiration of the transitional periods, where their food is being provided on flights departing from an EU Member State. A potentially big impact will probably be on airlines that accommodate passengers' tastes by loading prepacked food in a non-EU Member State for consumption by passengers on a flight departing from the EU. For example, on long haul flights to Asia prepacked noodles might be loaded in Tokyo for consumption on the leg of the journey departing from the EU. In this scenario, airlines and their caterers will need to ensure that such prepacked food complies with the new Regulation, even though the packaging might be completed by a non-EU based caterer and loaded onto the aircraft outside the EU. Under the Regulation, where the food is imported into the EU for consumption by a final consumer, ultimate responsibility for incorrect labelling will lie not with the non-EU caterer but with the "importer" into the EU market. Although at this stage it is not tested, it looks probable that the airline as the potential "importer" will be ultimately responsible for ensuring that the packaging complies.

The Regulation will have less impact on fresh foods loaded onto aircraft, which are not prepacked, although as stated above, any allergen/intolerances information will need to be known and detailed. One query which surrounds the definition of prepacked food, i.e. "any single item for presentation as such to the final consumer", is whether meal trays will be classed as a whole, as a single prepacked item (thereby requiring the prepacked food mandatory information to be stated), or whether (which is probably more likely) it will be considered to be made up of both non-prepacked and prepacked items.

A further issue is that this Regulation would appear to have some extra-territorial jurisdictional effect. However, as we have seen with the Emissions Trading Scheme (ETS), the EU may argue that the Regulation's provisions only apply if an airline chooses to operate a flight departing from an EU Member State and thereby subject itself to the unlimited jurisdiction of the European Union. The Regulation's provisions will not apply if an airline's flight is merely flying over EU airspace and does not arrive into or depart from an EU Member State. It would appear therefore that, even where an airline is potentially able to monitor its provision of food to its passengers so that this only occurs once the aircraft is outside EU airspace, if that flight is due to arrive into or has departed from the EU the Regulation will need to be complied with.

Regulation 1169/2011 can be found at: 2011:304:0018:0063:EN:PDF

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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