COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT pursuant to Article 294(6) of the Treaty on the Functioning of the European Union   concerning the  position of the Council at first reading on the adoption of a Regulation of the European Parliament and of the Council on the provision of food information to consumers
Date: 2011-02-22
Institutions: European Commission
Subjects: approximation of laws, consumer information, consumer protection, foodstuff, foodstuffs legislation, labelling, packaging, public health

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EUROPEAN COMMISSION 

Brussels, 22.2.2011 
COM(2011) 77 final 

2008/0028 (COD) 

COMMUNICATION FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT 

pursuant to Article 294(6) of the Treaty on the Functioning of the European Union  

concerning the 

position of the Council at first reading on the adoption of a Regulation of the European 
Parliament and of the Council on the provision of food information to consumers 

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2008/0028 (COD) 

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN 
PARLIAMENT 

pursuant to Article 294(6) of the Treaty on the Functioning of the European Union  

concerning the 

position of the Council at first reading on the adoption of a Regulation of the European 
Parliament and of the Council on the provision of food information to consumers 

1. 

BACKGROUND 

Date of transmission of the proposal to the EP and the 
Council (document COM(2008) 40 final – 
2008/0028(COD)): 

1 February 2008 

Date  of  the  opinion  of  the  European  Economic  and 
Social Committee: 

18 September 2008 

Date  of  the  opinion  of  the  European  Parliament,  first 
reading: 

16 June 2010 

Date of transmission of the amended proposal: 

[*] 

Date of political agreement: 

7 December 2010 

Date of adoption of the Council position: 

21 February 2011 

* 

Taking into account the developments in Council following the European Parliament 
first reading, the Commission did not prepare an amended proposal but expressed its 
views  on  the  Parliament  amendments  in  the  "Commission  Communication  on  the 
action  taken  on  opinions  and  resolutions  adopted  by  Parliament  at  the  June  2010 
part-session"  (document  SP(2010)6136)  sent  to  the  European  Parliament  on 
29 September 2010. 

2. 

PURPOSE OF THE COMMISSION PROPOSAL 

The  proposal  consolidates  and  updates  two  important  areas  of  labelling  legislation, 
the  general  food  and  nutrition  labelling  covered  by  Directives  2000/13/EC1  and 

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Directive  2000/13/EC  of  the  European  Parliament  and  of  the  Council  of  20  March  2000  on  the 
approximation of the laws of the Member States relating to the labelling, presentation and advertising of 
foodstuffs (OJ L 109, 6.5.2000, p. 29). 

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90/496/EEC2 respectively. The proposal recasts also six other Directives concerning 
the labelling of certain categories of foods. The objectives of this proposal are: 

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To  simplify  the  food  labelling  legislation  by  creating  a  single  instrument  for 
principles  and  requirements  for  horizontal  labelling  requirements  regarding 
general and nutrition labelling; 

To include specific provisions on the responsibilities along the food chain with 
respect to the presence and accuracy of food information; 

To  establish  measurable  criteria  for  certain  aspect  of  legibility  of  food 
labelling; 

To  clarify  the  rules  that  apply  with  respect  to  country  of  origin  or  place  of 
provenance labelling; 

To  introduce  mandatory  nutrition  labelling  in  the  principal  field  of  vision  for 
the majority of processed foods; 

To  establish  a  system  of  governance  for  certain  aspects  of  voluntary  food 
labelling through endorsement by Member States. 

3. 

COMMENTS ON THE POSITION OF THE COUNCIL 

3.1. 

General comments 

The  European  Parliament  (EP)  adopted  its  position  at  the  first  reading  on 
16 June 2010.  The  Commission  accepted  in  full,  in  part,  or  in  principle  113  out  of 
247 amendments adopted at the first reading as it considered that these amendments 
clarified or improved the Commission proposal and were consistent with the general 
aim of the proposal. 

While the position of the Council at first reading adopted on 21 February 2011 meets 
largely  the  objectives  of  the  original  Commission  proposal,  on  some  issues  it 
deviates  from  it.  The  Commission  did  not  stand  against  the  political  agreement  on 
the  text  in  order  to  allow  the  legislative  process  to  move  forward.  However,  the 
Commission  indicated  to  the  Council  in  the  attached  declaration  that  the  EP 
amendments  that  the  Commission  had  indicated  it  could  accept  are  not  covered  by 
the Presidency text, in particular the requirement for certain nutrition information on 
the front-of-pack.  

3.2. 

Amendments  of  the  European  Paliament  accepted  by  the  Commission  and 
incorporated in full, in part or in principle in the position of the Council at first 
reading 

Origin labelling – The EP first reading position proposed mandatory origin labelling 
for  meat,  poultry,  dairy  products,  fresh  fruit  and  vegetables,  other  single  ingredient 
products, and meat and fish when used as an ingredient in processed foods (am 101). 

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Council Directive 90/496/EEC of 24 September 1990 on nutrition labelling for foodstuffs (OJ L 276, 
6.10.1990, p. 40). 

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Mandatory  labelling  legislation  already  exists  for  fruit  and  vegetables,  beef,  wine, 
olive  oil,  and  imported  poultry,  and  a  proposal3  has  been  recently  presented  by  the 
Commission which aims at creating a legal basis for possible compulsory labelling of 
place  of  farming  for  all  agricultural  sectors,  following  impact  assessments.  In  its 
Communication  on  the  EP  opinion  the  Commission  partially  accepted,  subject  to 
rewording,  the  EP  amendment  for  an  extension  of  the  cases  of  mandatory  origin 
labelling  as  regards  basic  primary  foodstuffs  which  have  not  undergone  a 
substantial/significant  processing  and  are  generally  considered  as  single-ingredient 
products  subject  to  the  entry  into  force  of  delegated  measures,  based  on  impact 
assessments.  The  Commission  also  indicated  that  in  order  to  take  account  of  the 
expectations of the consumers and the practical constraints related to specific foods, 
the application of mandatory origin labelling should be subject to the entry into force 
of  delegated  measures,  based  on  impact  assessments,  determining  in  particular  the 
way  to  express  information  about  where  the  food  comes  from,  for  all  foods  or 
specific categories of foods.  

The  Council  first  reading  position  would  apply  mandatory  origin  labelling  to 
unprocessed  meat  from  swine  (pig  meat),  sheep,  goat  and  poultry,  subject  to  the 
adoption of implementing rules within 2 years of entry into force of the Regulation. 
The  Council  also  proposes  that  the  Commission  must  submit  to  the  EP  and  the 
Council  within  3  years  from  the  entry  into  force  of  the  Regulation  a  report  on  the 
mandatory  origin  labelling  of:  milk;  milk  used  as  an  ingredient  in  dairy  products; 
meat  used  as  an  ingredient;  unprocessed  foods;  single  ingredient  products;  and, 
ingredients representing more than 50% of a food. The Commission can accept the 
approach  of  mandatory  labelling  for  pig  meat,  poultry,  sheep  and  goat  meat. 
However, the Commission considers that, in light of the Treaty on the Functioning of 
the European Union (TFEU), the application of this requirement should be made via 
delegated  acts  given  that  quasi-legislative  elements  are  concerned  (for  example  to 
determine  the  appropriate  geographical  level).  These  delegated  acts  should  be 
adopted in the framework of specific Union provisions applicable to the pig, sheep, 
goat and poultry meat sectors. The legal text should be accordingly adapted, in light 
of  the  TFEU.  The  measures  of  application  of  this  requirement  should  take  into 
account  in  particular  the  need  to  avoid  imposing  unnecessary  and  excessive 
administrative  burden  on  the  food  business  operators  and  enforcement  authorities. 
This  in  turn  should  ensure  a  balance  between  providing  valuable  information  to 
consumers  while  avoiding  that  such  measures  undermine  competitiveness,  disrupt 
trade or create disproportionate costs for business and consumers. The Commission 
considers that the Council's proposed report on the extension of the origin labelling 
to other foods acknowledges the EP interest in mandatory origin labelling for other 
foods but allows for an approach that can take into account the expectations of the 
consumers and the practical constraints related to specific foods as indicated in the 
Commission's  response  to  the  EP,  and  is  compatible  with  approach  taken  in  the 
proposal  of  modification  of  Regulation  (EC)  1234/2007  as  regards  the  origin 
labelling  (COM(2010)738).  Here  the  Commission  considers  the  principle  is 
acceptable but the text may require legal redrafting. 

Imitation/substitute foods: The EP amendment that explicitly prohibited misleading 
practices regarding "imitation foods" (am 78) was considered to be partly acceptable 

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COM(2010)738. 

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by the Commission. The Council first reading approach of strengthening the general 
provisions  regarding  misleading  presentation  is  in  line  with  the  Commission’s 
position  on  the  EP  amendments  and  can  be  accepted.  The  Council's  position  of 
including in the Annex a requirement that the components or ingredients that replace 
those that a consumer would expect to be normally used or naturally present should 
be clearly indicated on the label (not only in the ingredient list) can, in the spirit of 
compromise,  be  accepted  by  the  Commission.  However,  the  Commission  does  not 
accept  to  have  the  name  of  the  food  or  ingredient  to  be  described  for  example 
"substitute" cheese or ham etc, or "imitation cheese" or "imitation ham" as proposed 
in the EP amendment 230. 

Labelling  of  'nano'  ingredients:  The  EP  position  that  would  require  ingredients 
derived  from  nanotechnology  to  be  labelled  as  such  (am  130)  was  accepted  in 
principle  by  the  Commission.  The  Council  proposal  to  include  a  cross  reference  to 
the  definition  of  "engineered  nanomaterials"  and  the  requirement  to  indicate  in  the 
list of ingredients that such ingredients are present is acceptable to the Commission. 
The  Council  position  is  in  line  with  the  discussions  on  the  revision  of  Regulation 
(EC) No. 258/97 on novel foods and novel food ingredients. 

Mandatory  information  requirements  for  non-prepacked  foods:  The  EP  first 
reading  position  is  that  non-prepacked  foods  should  be  out  of  the  scope  of  the 
Regulation (am 30). However, the EP position concerning the national measures for 
non-prepacked food (am 184), accepts the principle of the provision of information 
on  presence  of  ingredients  containing  substances  that  may  cause  allergies  or 
intolerances (allergenic ingredients). The Council has also accepted this principle of 
providing information on allergenic ingredients on non-prepacked food. 

Both  the  EP  and  the  Council  first  reading  positions  are  to  change  the  principle 
underlying  the  provision  of  mandatory  information  (other  than  information  on 
allergens) with respect to non-prepacked food. The original Commission proposal is 
in  line  with  the  existing  legal  framework  that  in  principle  provides  that  mandatory 
food information should be available for all foods within the scope of the legislation. 
But,  in  the  case  of  non-prepacked  foods,  Member  States  may  decide  that  certain 
information  does  not  need  to  be  always  available,  provided  that  the  consumer  is 
sufficiently informed. Both the EP (am 184) and the Council positions are to reverse 
the  approach  of  the  Commission  proposal  and  allow  Member  States  to  require 
provision of information on the mandatory particulars covered by the Regulation, in 
addition  to  information  on  allergens.  This  proposed  change  is  acceptable  as  the 
change  in  the  form  of  the  legal  Act  to  a  Regulation  would  have  meant  that,  in  the 
absence of rules by a Member State, a food business operator would have to provide 
all the mandatory particulars, not just information on allergens. 

Responsibilities  of 
food  business  operators:  The  Council  position  on 
responsibilities  of  food  business  operators  (Article  8  of  the  Commission's  original 
proposal)  is  in  line  with  the  principles  of  the  Commission’s  proposal.  The  EP  first 
reading position (am 84, 86, 88, 89 and 326) adapted the Commission's proposal to 
the  approach  that  had  been  adopted  in  Regulation  (EC)  N°  767/2009  on  feed 
marketing  and  labelling.  The  Commission  had  accepted  the  EP  amendments. 
However,  given  the  sensitivity  of  the  issue  and  the  controversial  debate  in  the 
Council,  in  the  spirit  of  compromise  the  Commission  can  accept  the  Council  first 
reading position.  

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3.3. 

Amendments  of  the  European  Paliament  rejected  by  the  Commission  and 
incorporated in full, in part or in principle in the position of the Council at first 
reading 

National  schemes:  The  EP  position  in  first  reading  deleted  Chapter  VII  on  the 
development of national schemes (am 301). The Council position includes the same 
proposal.  The  Commission  regrets  that  neither  the  EP  not  the  Council  shared  the 
vision of the Commission to provide a framework for the exchange of best practice 
on voluntary labelling schemes. 

The  EP  amendments  (am  155,  156,  298,  299)  in  the  first  reading  that  changed  the 
criteria  concerning  additional  forms  of  expression  of  nutrition  information  and 
combining them with the criteria on graphical forms of presentation were rejected by 
the  Commission.  The  Council  has  also  proposed  to  combine  the  criteria  for 
additional  voluntary  forms  and  presentation  of  nutrition  information  (AVS).  In 
addition,  the  Council  position  includes  the  introduction  of  provisions  that:  permit 
Member  States  to  promote  specific  AVS  on  their  territory;  oblige  Member  States  to 
ensure appropriate monitoring of AVS on their market; and notes that the Commission 
can  facilitate  the  exchange  of  information  and  best  practice  on  AVS.  The  Council 
position obliges the Commission to adopt implementing rules with respect to the criteria 
in Article 34 and to report within 5 years after the application of the Article to the EP 
and  the  Council  on:  the  use  of  AVS;  their  impact;  and,  the  advisability  of  their 
harmonisation.  The  Commission  considers  that  the  proposed approach of the Council 
could provide a basis for the review of the AVS for nutrition labelling in the future and 
the Commission can accept the Council proposal. 

Nutrition  information:  With  respect  to  nutrition  labelling  the  Commission  had 
rejected  that  EP  position  for  the  expansion  of  the  list  of  mandatory  nutrients 
(am 144).  The  Council  position  in  first  reading  is  that  the  mandatory  declaration 
should  be  expanded  to  include  protein.  The  Commission  is  concerned  about  the 
additional  costs  to  the  economic  operators,  in  particular  small  and  medium  sized 
enterprises, and would prefer to have a short list of mandatory particulars. However, 
given that both the EP and the Council have proposed to include protein, which is the 
only  macronutrient  that  was  not  included  in  the  Commission's  proposal,  it  can  be 
accepted. 

Nutrition  information  in  relation  to  per  portion:  The  Commission  proposal 
introduced the possibility that under certain circumstances the nutrition information 
could  be  provided  on  a  per  portion  basis  alone.  The  EP  (am  313)  and  the  Council 
positions  have  both  deleted  this  possibility.  The  Council  requires  that  the  nutrition 
information  should  always  be  provided  on the  basis  of  per  100g  or  100ml  and  that 
the per portion information can be an additional voluntary declaration. On the other 
hand, the EP proposes that the information should be always provided on the basis of 
100g or 100ml and per portion. The Commission considers that the proposal of the 
EP  is  not  acceptable  as  it  would  be  an  added  burden  to  industry.  Regarding  the 
Council's position, the Commission can accept that having the nutrition information 
provided  on  the  same  basis  would  allow  consumers  to  more  easily  compare  the 
nutrient composition of different foods. 

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3.4. 

Amendments  of  the  European  Paliament  accepted  by  the  Commission  as  such 
or subject to rewording, but not incorporated in the position of the Council at 
first reading:  

A  number  of  amendments  in  the  EP  first  reading  position,  some  of  an  editorial 
nature,  were  accepted  in  principle  by  the  Commission.  The  issues  where  the  first 
reading  positions  of  the  EP  and  the  Council  clearly  differ  are  discussed  in  detail 
below. Also mentioned are some of the changes that concerned matters of substance 
and  that  entailed  inclusion  of  new  provisions  in  the  position  of  the  EP  and  were 
accepted in principle by the Commission but have not been included in the Council 
first reading position. 

Nutrition  declaration  in  the  principal  field  of  vision  (front-of-pack):  In  the 
Commission  Communication  on  the  EP  position,  the  Commission  indicated  its 
agreement  to  mandatory  front-of-pack  (FOP)  nutrition  labelling  for  five  elements 
(energy,  fat,  saturates,  sugars  and  salt)  (am  313)  and  the  Commission  agreed  in 
principle with the EP amendment 162 that the application of the requirement of FOP 
to  foods  that  are  regulated  under  the  framework  of  Directive  2009/39/EC  on  foods 
for  particular  nutritional  uses  would  need  to  be  clarified.  The  declaration  of  the 
Commission (attached) specifically notes that the Commission regrets the position of 
the Council to remove the requirement for some nutrition information to be provided 
on  the  FOP.  On  this  issue  the  Commission  continues  to  believe  that  FOP  labelling 
would  allow  consumers  to  readily  see  the  nutrition  information  when  purchasing 
foods  and  the  Commission  reserves  the  right  to  support  the  EP  position  to  include 
five nutritional elements on the FOP.  

Name of the food business operator: The EP position (am 100) would oblige, not 
only  the  name  and  address  of  the  food  business  operator  under  whose  name  or 
business  name  the  product  is  marketed,  but  also  the  name,  business  name  or 
trademark of the manufacturer of  the  food itself. The Commission accepted the EP 
amendment.  However,  the  Council  position  is  that  the  name  of  the  food  business 
operator should be the one identified as responsible for the labelling, i.e. the operator 
under whose name or business name the food is marketed or, if he is not established 
in  the  European  Union,  the  importer  into  the  European  Union  market.  The 
Commission continues to support the intention of the EP position as it would provide 
transparency for the consumer on the manufacturer of the product. 

Date of minimum durability: the Commission agreed to the EP position (am 61) on 
the need to clarify the distinction between "use-by" and "best before" dates. A recent 
study  led  by  the  European  Commission4  indicated  that  food  wastage  represents  a 
huge amount of waste with an average of about 76 kg/person/per year at households 
level, of which 60% could be avoided. Some of this avoidable wastage would be due 
to a poor understanding of the date labelling system. 

Scope of the Regulation: The EP proposed (am 39) that the Regulation should not 
apply to transport catering services, such as planes and trains, on routes that are not 
wholly  within  the  EU.  The  Commission  believes  that  there  is  merit  in  considering 
further the issue of how the regulation should apply to transport catering services.  

4 

http://ec.europa.eu/environment/eussd/reports.htm  

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In the same amendment, the EP also proposed to include a provision in the enacting 
part of the Regulation reflecting Recital 15 of the Commission's proposal that certain 
activities are outside the scope of the Regulation. In this case, the Commission notes 
that the Council carefully considered this issue and decided not to include a provision 
in  the  enacting  part.  The  recital  provides  guidance  on  the  intended  scope  of 
application  of  the  Regulation  so  the  Commission  did  not  oppose  the  Council's  first 
reading position on this point. 

Definition of ingredient: The Commission's original proposal included a simplified 
approach to the definition of "ingredient" as compared to the existing legislation. It 
has since been noted that the simplified approach proposed by the Commission has 
an  impact  on  the  application  of  other  legislative  texts  that  make  reference  to 
"ingredient" as defined in the general labelling Directive 2000/13/EC. Therefore, the 
Commission considers that the definition of "ingredient" from Directive 2000/13/EC, 
adapted to take account of the EP amendment 49, should replace the Commission's 
original proposal. The change in approach would have an impact on the drafting of 
some other Articles.  

Labelling  of  meat  consisting  of  combined  meat  pieces:  The  EP  proposed  in 
amendments 276  and  293  that  when  a  food  is  meat  consisting  of  combined  meat 
pieces that this should be indicated on the front of pack or associated with the name 
of  the  food.  The  Commission  believes  that  this  proposal  would  ensure  that 
consumers  are  informed  about  the  specific  characteristics  of  the  food  they  are 
purchasing.  The  Commission  accepts  the  intention  of  the  amendments  in  principle 
but considers that the drafting of the provision needs to be reviewed. 

Labelling of meat with added protein and/or water: The Commission accepted in 
principle the EP position that certain meat and fish products containing added protein 
and/or  water  should  indicate  the  source  of  the  added  protein  and  the  presence  of 
added water on the labelling (am 207 and 226 to 228). The EP amendments for the 
labelling  of  added  protein  are  in  line  with  the  Commission's  interpretation  of  the 
current legislation.  

Other amendments were supported by the Commission, such as: labelling of "date 
of manufacture" for frozen products: (am 62, 97, 140, 141), derogation for micro 
enterprises (am 104), additional information for instructions for use and storage 
(am  142),  introduction  of  criteria  for  the  voluntary  labelling  "vegetarian  and 
vegan" (am 175), sausage casings (am 229). If these were considered in the second 
reading  the  Commission  would  be  willing  to  consider  the  inclusion  of  relevant 
provisions. 

3.5. 

Amendments  of  the  European  Paliament  rejected  by  the  Commission  and  the 
Council and not incorporated in the position of the Council at first reading:  

Legibility:  The  EP  position  on  legibility  (am  53,  334,  111  to  113)  that  deleted  the 
requirement for a minimum font size and proposed that criteria for legibility should 
be established through guidelines was not accepted by the Commission. The Council 
first reading position on legibility maintains a measurable criterion in the Regulation 
itself and helps to clarify this provision by including a reference for the measurement 
of  the  minimum  font  size.  The  Commission  considers  that  the  Council  position  on 
the criteria for a minimum font size improves the original proposal and is acceptable. 

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Scope  of  the  Regulation:  the  first  reading  position  of  the  Council  supports  the 
Commission proposal for the scope of the Regulation to apply to all foods intended 
for the final consumer and the overall consumer focused objective of the Regulation. 
The  EP  first  reading  position  to  restrict  the  scope  of  the  Regulation  to  prepacked 
food (am 38 and 39) and reduce the consumer focus of the Regulation (am 66) was 
not accepted by the Commission nor the Council. 

Nutrition  information:  many  new  provisions  in  the  EP  first  reading  position  that 
relate  to  certain  aspect  of  nutrition  information  were  not  accepted  by  the 
Commission. For example, the extension of the mandatory list of nutrients to include 
protein,  fibre  and  trans  fats  (am  144)  and  the  extension  of  the  list  of  additional 
voluntary nutrients (am 145); the repetition of the information on energy in a specific 
format  on  the  FOP  was  considered  by  the  Commission  as  a  duplication  of 
information (am 158); the requirement to include a statement regarding the basis of 
the reference  intake (am  151) was not  considered  necessary;  many  of  the  proposed 
exceptions  from  mandatory  nutrition  labelling; and, the deletion of the reference to 
the International System of units of measurement for energy (kJ) (am 246, 248, 319). 
The  Council  first  reading  position  does  not  include  these  changes  proposed  by  the 
EP. 

Alcoholic  beverages:  The  EP  position  to  exempt  all  alcoholic  drinks  from  the 
requirement to provide an ingredients list and nutrition labelling pending the report 
of  the  Commission  (am  145  and  294)  was  not  acceptable  to  the  Commission.  The 
Council  position  proposes  that  the  exemptions  to  the  requirements  to  include  an 
ingredient  list  and  a  nutrition  declaration  should  be  extended  to  include  alcoholic 
beverages  that  are  considered  competitive  to  those  already  exempted  under  the 
Commission proposal. The Commission can accept the approach to treat competitive 
products  in  an  equivalent  way.  However,  the  Commission  considers  it  is  essential 
that ready-to-drink mixed alcoholic beverages provide information on the ingredients 
and the nutrient composition. 

Origin labelling: The Council proposal on origin labelling maintains the principle of 
the Commission's proposal that, when the origin of a food is given and the country of 
origin  of  the  primary  ingredient  is  not  the  place  of  last  substantial  change  of  the 
product as a whole, the origin of the primary ingredient should be given also. The EP 
position  was  to  delete  this  provision  (am  172)  which  is  not  acceptable  to  the 
Commission as the intention is to prevent potentially misleading origin indications. 

3.6. 

New provisions introduced by the Council 

Legibility:  as  previously  mentioned,  the  Council  text  maintains  the  Commission 
proposal  for  a  minimum  font  size  to  be  included  in  the  Regulation  but  includes  an 
important clarification on how the font size should be determined. The Commission 
considers that the Council position on the criteria for a minimum font size improves 
the original proposal. 

Labelling  of  substances  causing  allergies  or  intolerances:  In  the  Article 
concerning  the  labelling  of  certain  substances  causing  allergies  or  intolerances,  the 
Council  position  proposes  to  clarify  the  text  with  regard  to  the  approach  to  the 
labelling  of  products  that  do  not  include  an  ingredients  list.  This  clarification  is 
appropriate  and  can  be  accepted  in  principle  as  the  proposal  corresponds  to  the 

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existing  rules  on  the  labelling  of  these  substances.  However,  as  previously 
mentioned, the Commission would like to change the approach on the definition of 
"ingredient. 

Net  quantity:  the  Council  first  reading  position  reintroduces  the  possibility  for 
Member States to maintain rules on the expression of the net quantity for specified 
foods in a different manner to that provided for in the Regulation. The Commission 
can  accept  this  proposal  that  would  allow,  in  the  absence  of  detailed  EU  rules,  the 
maintenance  of  the  existing  approach  in  the  expression  of  net  quantity  for  specific 
food  categories,  in  particular  where  the  nature  of  the  product  can  vary  from  being 
liquid to solid. 

Labelling  of  foods  containing  caffeine:  implementing  rules  in  Commission 
Directive  2002/67/EC  of  18  July  2002  on  the  labelling  of  foodstuffs  containing 
quinine, and of foodstuffs containing caffeine (adopted under Directive 2000/13/EC) 
include specific rules for the labelling of certain beverages containing caffeine. The 
Council  first  reading  position  proposes  that  the  labelling  statement  should  also 
indicate that the products are not suitable for pregnant women or young children. The 
Council first reading position is that the obligation to the specific labelling should be 
extended to foods with caffeine added for a nutritional or physiological purpose. The 
Commission  accepts  the  principle  of  including  labelling  statements  for  foods  with 
caffeine added for nutritional or physiological effect, with respect to the consumption 
of  such  products  by  specific  population  groups  which  are  within  the  scope  of  the 
available scientific advice5  

Final  provisions  and  transitional  periods  (Article  45,  recital  54):  The  EP 
amendment  194  proposed  to  change  the  Commission's  proposal  for  an  additional  2 
year  transitory  period  for  micro-businesses  (with  less  than  10  employees)  from  the 
requirement  to  provide  mandatory  nutrition  labelling  to  be  extended  to  businesses 
with less than 100 employees. The Commission did not accept the EP amendment. 

Regarding  the  date  of  application,  instead  of  a  two  step  application  of  the  rules  on 
nutrition labelling, with an additional 2 years allowed for micro-businesses to adapt, 
the  Council  text  proposes  that  when  nutrition  information  is  provided  it  should 
comply  with  the  new  requirements  from  3  years  after  the  entry  into  force  of  the 
Regulation.  However,  the  obligation  to  provide  nutrition  information  would  not 
come into effect until 5 years after the entry into force. 

The Council position includes a new provision that indicates that there should be a 
transitory period for the application of new requirements, and that products placed on 
the market before the end of the transitory period can continue to be sold until stocks 
are exhausted. They also propose that the date of application should be 1st April in 
any  calendar  year,  except  in  the  case  of  urgency  measures.  The  Commission  can 
accept  the  Council’s  position  concerning  the  application  of  the  Regulation  and 
transition measures. 

Exercise  of  the  delegation  and  delegation  of  powers  throughout  the  text:  The 
alignment  of  the  delegation  of  powers  in  the  Council’s  position  are  broadly  in  line 

5 

Opinion of the Scientific Committee for Food of 21 January 1999 on caffeine and other substances used 
as ingredients in ‘energy drinks’. 

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with the Commission’s approach and are appropriate for the scope of the delegation 
of powers proposed. There are some differences compared with the approach of the 
Commission in response to the EP opinion, however, in the context of the Presidency 
text  the  delegations  are  appropriate  and  can  be  accepted  with  the  exception  of  the 
proposed  implementing  powers  related  to  measures  associated  with  the  mandatory 
origin labelling of meat. 

The  following  changes  introduced  by  the  Council  are  also  acceptable  to  the 
Commission: 

• 

• 

• 

• 

• 

• 

• 

Option  for  the  inclusion  of  a  statement  that  explains  that  the  nutrition 
declaration  on  salt  refers  to  naturally  present  sodium/salt.  This  voluntary 
labelling provides clarification; 

Chapter  on  national  measures  –  the  Council  has  amended  Article  37  of  the 
Commission's original proposal which clarifies the scope of the Chapter; 

Annex V – new requirement for labelling "defrosted"; 

Annex  VI  B  –  the  obligation  to  indicate  whether  a  hydrogenated  oil  or  fat  is 
fully or partitally hydrogenated; 

Annex  IX  –  deletion  of  the  exemptions  from  "best  before  date"  for  certain 
products; 

Annex XI – change to reference quantity for the significant amount of vitamins 
and minerals; 

The  simplification  of  the  Annex  providing  the  order  of  presentation  of  the 
vitamins  and  minerals  (Annex  XIII  of  Commission's  original  proposal)  as 
proposed is acceptable.  

3.7.  Major problems when adopting the position of the Council at first reading 

The  position  adopted  by  the  Council  at  first  reading  contains  elements  departing 
from  the  Commission's  proposal.  They  concern,  in  particular,  as  highlighted  above 
certain aspects of nutrition labelling, origin labelling, the inclusion of the name of the 
manufacturer, and the definition of ingredient. 

4. 

CONCLUSION 

The  Commission  takes  the  view  that  the  position  of  the  Council  at  first  reading 
contains  elements  departing  from  the  Commission's  proposal.  Although  there  are 
remaining  concerns,  in  order  to  allow  the  legislative  process  to  move  forward,  the 
Commission did not stand against the position adopted by the Council by qualified 
majority. 

The  Commission  indicated  to  the  Council  in  the  attached  declaration  that  it 
particularly regrets the Council decision to delete the requirement for a front-of-pack 
nutrition declaration. 

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ANNEX 

Declaration by the Commission 

In a spirit of compromise, the Commission will not stand against a qualified majority vote in 
favour of the Presidency text although there are remaining concerns given that the Presidency 
text  contains  some  elements  departing  from  the  Commission's  proposal  and  some  legal 
elements  to  be  revised  in  line  with  the  Treaty  on  the  Functioning  of  the  European  Union. 
Furthermore,  the  Council  has  not  considered  the  EP  first  reading  opinion  and  consequently 
the EP amendments that the Commission had indicated it could accept are not covered by the 
Presidency text.  

In particular, the Commission regrets to see that the Council has opted for deleting the "front-
of-pack" nutrition declaration. The Commission considers that this is weakening the benefits 
that the consumers could get from the mandatory nutrition declaration and is convinced of the 
benefits that front-of-pack labelling would bring to consumers by allowing them to readily see 
the nutrition information when purchasing foods.  

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