Opinion of the Economic and Social Committee on the 'Simplification of the vertical directives on food:

- Proposal for a European Parliament and Council directive relating to cocoa and chocolate products intended for human consumption,

- Proposal for a Council directive relating to certain sugars intended for human consumption,

- Proposal for a Council directive relating to honey,

- Proposal for a Council directive relating to fruit juices and certain similar products intended for human consumption,

- Proposal for a Council directive relating to certain partly or wholly dehydrated preserved milk for human consumption,

- Proposal for a European Parliament and Council directive relating to coffee extracts and chicory extracts, and - Proposal for a Council directive relating to fruit jams, jellies and marmalades and chestnut purée intended for human consumption` () (97/C 56/06)

On 15 July 1996, the Council decided to consult the Economic and Social Committee, under Articles 43 and 198 of the Treaty establishing the European Community, on the above-mentioned proposals.

The Section for Agriculture and Fisheries which was responsible for preparing the Committee's work on the subject, adopted its Opinion on 3 October 1996. The rapporteur was Mr Gardner.

At its 339th plenary session held on 30 and 31 October 1996 (meeting of 31 October 1996) the Economic and Social Committee adopted unanimously the following Opinion.

1. General comments

1.1. Introduction

This proposal stems from the decision of the Edinburgh Summit in 1992 to simplify or abolish a number of product directives which are no longer in line with the new approach to food legislation.

Under the 'new approach` Commission and Council decided to avoid making further vertical product measures because they were difficult to agree given the diversity of eating habits in the EU and in order to maximize consumer choice. Instead it was agreed to concentrate on horizontal measures to protect consumers and the environment such as:

- labelling,

- additives,

- health rules etc.

In the event, the Commission had wide-ranging discussions with Member States, interested groups and economic operators and finally felt unable to abolish any of the seven directives. However this proposal simplifies them and makes a number of them less prescriptive.

The Committee therefore approves the proposal as a first step in the right direction, subject to the comments in this section and those dealing with the individual foods.

1.2. Additives

These are now regulated by the relevant directives: Additives (95/2/EC), Sweeteners (95/35/EC) and Colours (94/36/EC). Therefore in general, additives are not mentioned. However on occasion they are and the references are not always correct or complete.

For better transparency individual additives should be omitted throughout. Instead in each directive for foods where additives are permitted, there would be a separate Article with a cross-reference to the three Additive Directives.

1.3. Compulsory standardized ranges

These were in several of the existing directives. As a consumer protection measure these have now been superseded by universal unit pricing. However the Committee would encourage maintenance of EU-wide scales on a voluntary basis where the sector wanted them provided it could be shown that this was in the consumer interest and would not impede free movement of products.

1.4. Committee procedure

The Commission proposes that all the directives should be adapted to technical progress by a Committee procedure. This mechanism is approved.

The Committee also emphasizes the need to consult and listen to the various advisory bodies on which the socio-economic interests are represented.

1.5. Legal bases and timing

The Commission has decided to retain the existing legal bases, i.e. chocolate and coffee on 100A and the rest on 43. This is of course entirely within the choice of the Commission.

The proposed implementation dates throughout are unrealistically short. Given the time required nowadays for finalizing directives and the time taken by Member States for national implementation, they should all be revised to start as follows:

- Authorize marketing from publication of the directive.

- Prohibit manufacture (including labelling) of non-complying product two years after publication.

- Permit sales of non-complying product labelled before the second date until stocks are exhausted.

1.6. Languages

In several cases the proposal prescribes product names which are not those used by all consumers in a particular language. In German the Austrian terms required by Protocol No 10 of the Act of Accession have been omitted throughout.

Normal consumer usage should be permitted throughout (see 6.7) and the Austrian terms must be added throughout.

2. 96/0112 - Proposal on cocoa and chocolate products

2.1. General comments

2.1.1. The vegetable fat controversy

This proposal was the most controversial part of the packet. Controversy centred round the addition of vegetable fats other than cocoa butter and a short explanation is therefore necessary.

The present EU directive lays down compositional standards for the various types of chocolate detailing the minimum levels of cocoa and where appropriate, milk solids. These standards are the same for all Member States and are not changed by this proposal.

In seven Member States (Austria, Denmark, Finland, Ireland, Portugal, Sweden and UK), almost all edible substances may be added to such chocolates, in eight Member States (Belgium, France, Germany, Greece, Italy, Luxembourg, Netherlands, Spain) almost all edible substances except vegetable fats.

In the eight Member States opposition against vegetable fats centred on fears of quality reduction and on concerns of reduced cocoa consumption. In the seven Member States vegetable fats are added to improve consumer acceptance of chocolate and these Member States were strongly in favour of permitting their continued addition.

The quality concerns are due to differing national attitudes of what the consumer wants but a detailed explanation is due regarding cocoa usage.

Here we have to remember that cocoa beans are not eaten directly. They first have to be made into chocolate and other cocoa products. Cocoa bean consumption is maximized if these resulting products best meet consumer demands.

Consumers in the EU have increasingly come to prefer milk chocolate (85-90 % of sales) which has much less cocoa than dark chocolate though it has a more expensive formulation. Equally in recent years there has been a strong growth in consumption of filled chocolates, coated biscuits etc. which typically have 25-50 % chocolate and this generally milk chocolate.

There has therefore been considerable growth in products with lower cocoa content since these best satisfied consumer demand. The net result of these two trends - higher consumption of chocolate but lower average cocoa content has been good for cocoa bean usage which has doubled since 1980 in the EU (12).

2.2. Detailed comments

2.2.1. Types of vegetable fat

To safeguard the health of the consumer, the Commission should specify labelling of the origin of the vegetable fats that are used.

2.2.2. Seventh preamble

The directive needs to emphasize throughout that other foods (including vegetable fats) may only be used on top of the legal chocolate components and not as substitutes. The wording therefore needs to be changed to:

'Whereas the addition to chocolate products ...`.

2.2.3. Eighth preamble

Similarly needs to be changed to:

'vegetable fats to add to their national products...` .

2.2.4. Ninth preamble

Since the proposal envisages differing rules in various Member States, the right of establishment has to be emphasized by adding the words:

'Whereas in order to guarantee the right of establishment and the single ...`.

2.2.5. Eleventh preamble

This is wrong, chocolate cannot be made without fats. It refers to particular claims and should be changed to:

'Whereas in pursuance of that directive it is possible to claim vegetable fats other than cocoa butter have not been used providing this does not mislead consumers.`

2.2.6. Twelfth preamble

For the reason given in 2.2.2 this needs to be changed to:

'whereas in the case of chocolate products with added ...`.

2.2.7. Article 2

2.2.7.1. The wording of this article would perpetuate the present situation where almost half the Member States permit the addition of vegetable fats to chocolate made in their territory and the others do not.

A uniform solution would have been preferable but given the situation outlined in 2.1 the Committee might accept the proposal as the best that is currently achievable but insists on a review in five years from implementation of the directive to see whether harmonization is then possible.

2.2.7.2. However again the words 'contain vegetable fats` must be changed to 'to which vegetable fats have been added`.

2.2.7.3. The Committee welcomes the extension of ingredient labelling to chocolate.

Non cocoa butter vegetable fats, if used, will feature in the ingredient list. A further separate declaration is superfluous. Indeed the ECJ has recently ruled that this type of second declaration is unnecessary (Béarnaise case, C-51/94).

However, if the Council and Parliament were to go ahead with such a declaration, then its position should always be next to the list of ingredients.

2.2.8. Article 3.4

This should read: '... sugars and/or sweeteners added...`.

2.2.9. New Article (to be added)

'Additives may be used only in accordance with Directives 94/36/EC, 95/2/EC and 94/35/EC`.

2.2.10. Annex A.3 and A.4

The product defined in A.4 is given as:

- 'Milk chocolate with high milk content` in three languages.

- 'Pale milk chocolate` in one language version.

- 'Household milk chocolate` in five language versions.

- 'Kitchen chocolate` in one language version.

The last two are somewhat pejorative, dating from the time when this was a cheap product.

With the evolution in milk prices, the cost of both types of milk chocolate is now very close together and well above that of chocolate. Using the standards in the proposal:

Typical raw materials prices per tonne of three main chocolates ()

>TABLE>

Given that the present names in many languages actually disfavour the use of milk, a nutritionally valuable EU raw material, the Committee suggests:

- Either permit everywhere the more factual names for A.4: 'Milk chocolate with high milk content` or 'Pale milk chocolate`.

- Or using the same name 'milk chocolate` for both types as is proposed for the UK and Ireland but requiring the milk content to be given.

2.2.11. Nutritional advice is now in favour of limiting the 'intake of fatty foods` (). The requirement to have at least 25 % fat therefore is an anachronism and stops the development of lower fat chocolates. It should be deleted.

2.2.12. Annex C

The first sentence to be changed to:

'...... after deduction of the weight of additions provided for in point B and Article 2.`

'Additives` appears to be in error. Also all the additions provided by Article 2 need to be covered.

3. 96/0113 - Proposal on sugars

3.1. General comments

Much of this proposal is not needed for consumer protection and it includes several products which are never sold to the ultimate consumer. Part of it is there only to support the sugar regime. It should therefore be considerably simplified when this regime is finally reformed.

3.2. Article 2.3

'Actual` dry matter levels of liquid products pose problems due to batch to batch variation. This labelling is for trade only. If and when sold to the final consumer, QUID (Quantitative Ingredient Declaration, according to the Labelling Directive) will apply i.e. average or minimum levels.

The same rule should apply throughout.

3.3. New article (to be added)

'Additives may be used only in accordance with Directive 95/2/EC`.

3.4. Annex A

Delete all reference to sulphur dioxide in line with point 1.2.

Some of these sugars can now be produced at lower sulphur dioxide levels and Directive 92/2/EC should be revised at an early stage to take account of this.

3.5. Annex B

Some of these tests are now out of date. They should be up-dated or preferably the whole Annex 2 should be deleted as one of the many prescriptive provisions inconsistent with the new approach to EU legislation. Up-to-date standards could well be devised outside legislation and the Commission should be 'asked to encourage` these as in Article 3 of the honey proposal.

4. 96/0114 - Proposal on honey

4.1. Article 2.1

The following phrase needs to be corrected in the English version:

However 'except in the case of ...`.

4.2. Article 2.1, second paragraph

Change 'may be supplemented by` to 'shall be supplemented by`.

4.3. Article 2.1, second paragraph, first indent

Change 'essentially` to 'predominantly`.

4.4. Article 3

Add at end:

'Where such methods replace present empirical methods (apparent sucrose, apparent reducing sugars), the compositional criteria may also have to be changed.`

4.5. Annex 2, 7(a)

Diastase activity is a method which is now well out of date and should be replaced by a modern method in line with Article 3.

4.6. Annex 2, 7(b)

The present Directive has a figure of 40mg/kg of HMF with a possible derogation to 80 mg, which is the figure used in Codex. There is no public health reason for 40mg/kg.

40 mg/kg is a reasonable figure when the honey is produced but this level increases during storage, especially in warm countries. Recent shop surveys in southern Member States have shown a number of samples where the HMF had risen above this figure. 7(b) should therefore be changed to:

>TABLE>

(The heading to 7 in the proposal will then have to be changed accordingly.)

5. 96/0115 - Proposal on fruit juices etc.

5.1. Article 2

Several Member States still put barriers against products with added vitamins. The Commission should accelerate agreement on ways of lifting such barriers.

5.2. Article 3

5.2.1. Article 3.1 (see also 6.8 below)

The name commonly used by the consumer may be different and may even vary in the same language between different countries. While 'particular designations` have an important function they must not become a barrier to trade. The following words should therefore be added at the end of Article 3.1.

'However the sales name in the Member State of production or names commonly used by the consumer shall also be allowed`

5.2.2. Article 3.5

At end of second indent add:

'.... and pulp/cells.`

These may also be lost to some extent during production processes. It is also doubtful that minerals can be lost in processing.

5.3. New article (to be added)

'Additives may be used only in accordance with Directive 95/2/EC`.

5.4. Annex 1

Under the 'new approach` there is no need for detailed raw material specifications for raw materials and intermediate products not sold to the final consumer. The proposal deletes these in others of the proposed directives and that could well be done here.

If that is not acceptable for fruit juice then this part needs to be completed and corrected as follows:

5.4.1. Annex 1.I.1 (b)

The quantity of water extracted from the juice is generally not known exactly. Therefore the reconstitution of juice from concentrate to the original state is not possible in practice.

Currently juices are reconstituted using amounts and quality of water in line with an agreed industry code of practice. The flavours and minerals must come from the named fruit(s). Edible fruit pulp and/or cells should also be restorable.

The proposal should make provision for all this. Under the 'new approach` this could be done outside legislation by asking the Commission to encourage such codes. (As proposed in Article 3 of the honey proposal.)

5.4.2. Annex 1.I.2

Prohibiting products with less than 50 % concentration is an unnecessary limitation of consumer choice. Proper labelling (QUID) is a better safeguard.

5.4.3. Annex 1.I.4 (a)

The current directive permits sugars and honey in nectars at up to 20 %. The proposed reduction will deprive consumers of some established products and should therefore be deleted.

5.5. Annex 1.II.1

5.5.1. First indent add at end:

'Pulp and/or cells used in restoration must come from the named fruit(s).`

Further restoring minerals by means of volatile substances appears to be an error.

5.5.2. Third indent

Acidity as such (pH) cannot be regulated by sugar.

5.5.3. Add sixth indent:

'Carbon dioxide as an ingredient`.

This is needed for sparkling drinks and as in carbonated water it is not covered by the additives directive.

5.6. Annex 1.II.2 - Authorized treatments and substances

This needs updating in line with modern technology. In particular:

5.6.1. Third indent

The Committee notes that the use of the diffusion process for grape juice is banned by the Community wine regulation, which covers grape juice. This juice can in fact be produced from grape must.

5.6.2. Last indent should be replaced by:

'fining agents, adjuvants and chemically inert absorbents which comply with EU directives on materials and objects in contact with foodstuffs.`

5.7. Annex 2. 4 (a)

If a prescriptive list of sugars is really thought necessary, then it has to be complete to read:

'- sugars as defined by Annex A of Directive ...;

- fructose;

- sugars derived from fruits;

- honey.`

5.8. Annex 3

This list is incomplete and the remarks under 6.8 apply here too. There are two Dutch variants of fruit nectars and the following is missing:

(f) (in Finnish) ....'Mehu` and 'Makeutettu ... Mehu`;

(g) (in Swedish) 'Äppelmust`.

5.9. Annex 4

5.9.1. This kind of prescriptive detail is not in line with the 'new approach`. It should be severely pruned.

5.9.2. The part in brackets heading the first column has to be:

' % by volume of finished product.`

Liquids are normally dispensed by volume and not by weight.

5.9.3. In the German version the Austrian terms have to be added throughout.

6. 96/0116 - Proposal on preserved milk

6.1. Article 3.1 (see also 6.7 below)

The name commonly used by the consumer may be different and may even vary in the same language between different countries. While 'particular designations` have an important function they must not become a barrier to trade. The following words should therefore be added at the end of Article 3.1.

'However the sales name in the Member State of production or names commonly used by the consumer shall also be allowed`.

6.2. Article 3.2

Under the new approach this seems superfluous as net quantity is already covered horizontally.

6.3. Article 3.4

Most of this is already covered by the labelling directive.

6.4. New article (to be added)

'Additives may be used only in accordance with Directive 92/2/EC`.

6.5. Annex 1, 1 (c), (e) and (g)

These have different rules for sale to the ultimate consumer and for trade use. Also in some cases the figures are different from Codex requiring separate manufacture for EU exports which are very substantial.

If these prescriptive rules are still necessary, then the sensible course would be to align all of them on Codex.

6.6. Annex 1.1.4. (a)

This needs up-dating to read:

'by appropriate heat treatment (sterilization, UHT etc.) for the products referred to in point 1(a) to (d).`

6.7. Annex 2

This list is incomplete and should be reviewed, given the provision for 'customary names` in the labelling directive.

There are now 5 national variants of German (including the Luxembourg version which is increasingly being used for labelling local dairy products), 2-3 of French, two of Dutch and 2 of Swedish. Local languages like Catalan are also now used in stores. Given this cultural diversity it is unlikely that the most meaningful consumer information can be fixed by a directive. It should be decided locally and give enough flexibility for future changes.

Aside from that the Swedish term 'Graddpulver` is missing and the German 'eingedicktes Kaffeeobers` needs to be added.

7. 96/0117 (COD) - Proposal on coffee and chicory extracts

7.1. This is acceptable.

8. 96/0118 - Proposal for a directive on jams, jellies, marmalades and chestnut purée

8.1. Article 1

The word 'confectionery` should be added after 'biscuits` in the list.

8.2. Article 2

The Committee welcomes the fact that the Labelling Directive (79/112/EEC) now applies to these products.

8.3. Articles 2.3 and 2.4

These repeat the rules for calculating ingredients from the old 1979 Directive. Since then horizontal measures on nutrition labelling and on QUID (Quantitative Ingredient Declaration) have been or are about to be applied to foods in general. QUID calculates ingredients at the mixing bowl stage, while nutrition labelling calculates the nutrients (such as sugar) as a percentage of the product as sold.

The special jam rules maintain yet a different method of calculation. Having different calculations leading to different numbers on the label is not easy for the consumer and the Commission should review this situation.

8.4. Article 2.5

This needs to state explicitly that if nutrition labelling is used as an alternative that can often not be in the same field of vision for space reasons.

8.5. Article 4

This appears to limit consumer choice without good reason. In principle all wholesome foods of vegetable origin should be permitted with proper labelling.

8.6. New Article (to be added)

'Additives may be used only in accordance with Directives 95/2/EC, 94/35/EC and 95/36/EC`.

8.7. Annex 1

8.8. III

In at least six Member States jams with less than 60 % sugar content have been developed and are widely sold as a result of consumer demand for a choice of lower sugar products.

In the remaining Member States such jams are not permitted and consumers are therefore denied that choice. The proposal maintains that situation. It should be revised so as to give the same choice to consumers throughout the Community.

8.9. Annex 2

As stated in 8.5 much of this could be deleted by permitting 'all wholesome foods of vegetable origin`. This applies in particular to the last indent. The prescriptive list in this is arbitrary and limits consumer choice unnecessarily. For instance walnuts are permitted and pecans or peanuts are not.

This indent should be replaced by 'all wholesome alcoholic and food products of vegetable origin.`

8.10. Annex 3 B. 1 b) and 4

Delete all references to individual additives.

Brussels, 31 October 1996.

The President of the Economic and Social Committee

Tom JENKINS

() OJ No C 231, 9. 8. 1996, p. 1-27.

() Based on: Cocoa Butter: ECU 3 500, Anhydrous Cow Butter ECU 3 981, Cocoa Mass ECU 1 883, Cocoa Powder ECU 648, Full Cream Milk Powder ECU 2 657, Sugar ECU 759 (Per tonne).

() 'European Code Against Cancer`, EC Cancer experts Meeting, Bonn, 28-29. 11. 1994.