Another marketing tool in the EU?
September, 2021 in Issue 3 - 2021, Nutrition
In March and April, respectively, retailers Colruyt in Belgium and Lidl in Germany announced the implementation of Eco-Score, a new front-of-pack (FoP) labelling scheme for some of their products. The label aims at indicating the environmental impact of food products in a simplified way.
Eco-Score looks very similar to Nutri-Score, a widely known voluntary FoP nutrition label. Eco-Score was developed in France by the ECO2 Initiative, a consulting firm focusing on environmental transition. The method for calculating the Eco-Score consists of two components:
These elements are converted by the system’s algorithm into a code for a food product consisting of one of five letters of the alphabet, each with a colour – from A (green) for the lowest environmental impact of a product, to E (red) for the highest environmental impact.
On its part, Nutri-Score is a colour-coded system that rates the nutritional value of a food product by assessing the content of key nutrients: salt, fat, saturated fat, sugar and total calorie count. Unlike the ‘traffic light’ label, which highlights key individual nutrients, the Nutri-Score system – introduced in France in 2017 – provides a single score for the entire product, giving consumers an overall assessment of the product.
Based on an algorithm, Nutri-Score gives a rating to any food except single-ingredient foods and water. The rating ranges from dark green A (best) to red E (worst), by weighing the prevalence of ‘good’ and ‘bad’ nutrients.
For both Nutri-Score and Eco-Score, the very idea of a ‘score’ means that they cannot convey any specific information to the consumer on the actual nutritional properties or the specific environmental impact. Notably, these schemes have outpaced ongoing developments at the EU level.
On May 20, 2020, the European Commission (EC) adopted its Farm to Fork (F2F) strategy for a fair, healthy and environmentally-friendly food system, as part of the European Green Deal.
The strategy announced that, in order to promote sustainable food consumption and facilitate the shift to healthy and sustainable diets, the EC would adopt measures to empower consumers to make informed, healthy and sustainable food choices. In particular, the strategy announced that the EC would propose a harmonised mandatory FoP nutrition labelling.
In relation to environmental labels, the F2F strategy announced that the EC would ‘also examine ways to harmonise voluntary green claims and to create a sustainable labelling framework that covers, in synergy with other relevant initiatives, the nutritional, climate, environmental and social aspects of food products’.
Evolving legal framework
The main question related to claims on food products is how they are substantiated. This concerns claims about nutritional, health or environmental properties. Unlike for nutrition and health claims under Regulation (EC) No. 1924/2006 on nutrition and health claims made on foods, there is currently no specific legal framework in the EU on the substantiation of environmental labels or claims.
Competent authorities in the EU member-states can prohibit environmental claims that they find to be misleading towards consumers on the basis of a case-by-case application of existing consumer protection laws.
In particular, the laws are:
The EC is currently preparing a legislative proposal on ‘substantiating green claims’. The related Inception Impact Assessment (i.e. Roadmap) notes that it concerns ‘claims made in relation with the environmental impacts covered by the Environmental Footprint methods’.
According to the Product Environmental Footprint Initiative, these methods measure the environmental performance of a product throughout the value chain, from the extraction of raw materials to the end of life, using a large variety of categories: ‘Some of them are focused on a single issue, e.g. carbon footprint, whereas some encompass multiple environmental themes.’
The Roadmap points out that, ‘in order not to mislead, environmental claims should be presented in a clear, specific, unambiguous and accurate manner’. The initiative aims to ‘make the claims reliable, comparable and verifiable across the EU – reducing greenwashing (companies giving a false impression of their environmental impact)’. This, in turn, ‘should help commercial buyers and investors make more sustainable decisions and increase consumer confidence in green labels and information’.
According to the EC, a proposal for a regulation on green claims was planned for the second quarter of this year. However, it appears that the proposal has been delayed and will only be published during the second semester of this year. A proposal for a directive on consumer empowerment for the green transition that aims at establishing specific rules to combat greenwashing was similarly expected in the second quarter, but will now likely only be published during the second half of this year.
Mandatory scheme?
Alongside the F2F strategy, the EC published a Report to the European Parliament and the Council regarding the use of additional forms of expression and presentation of the nutrition declaration (FoP Report). This included a reference to schemes providing information on the ‘overall nutritional quality of foods’, such as the Nutri-Score scheme, which has been introduced in various EU member-states.
The FoP Report states that, given the political priority of the F2F strategy – namely the potential of FoP schemes enabling consumers to make health-conscious food choices – ‘it seems appropriate to introduce a legislative proposal on a harmonised mandatory FoP nutrition labelling scheme at EU level’.
In the F2F strategy, the EC announced that, by the fourth quarter of 2022, after launching an impact assessment on the different types of FoP schemes, it intends to prepare such legislative proposal on harmonised mandatory FoP nutrition labelling.
No specific scheme has been recommended in the FoP Report. It appears that schemes providing information on the FoP on the overall nutritional quality of foods, such as the Nutri-Score, do not appear to be appropriate for a harmonised mandatory nutrition labelling scheme under the current legal framework of Regulation (EU) No. 1169/2011 of the European Parliament and of the Council of Oct 25, 2011, on the provision of food information to consumers (FIR).
In particular, they arguably fall short of complying with Article 35(1) of the FIR According to this, the mandatory nutrition declaration may be complemented by a voluntary repetition of the energy value and the amount of nutrients in the principal field of vision (also known as the FoP), in order to help consumers see at a glance the essential nutrition information when purchasing foods. Nutri-Score does not provide for such a repetition of the energy value and the amount of nutrients.
Setting of nutrient profiles
The FoP Report also includes a reference to nutrient profiles. According to the World Health Organisation, nutrient profiling is the categorisation of foods according to their nutritional composition using predefined criteria. Nutrient profiles have a variety of applications around the world, for example, for purposes of regulating food marketing to children.
Nutrient profiling is also commonly used in FoP nutrition labelling schemes. Regulation (EC) No. 1924/2006 on nutrition and health claims made on foods requires the EC to adopt nutrient profiles. According to the F2F strategy, the setting of nutrient profiles to restrict the promotion of foods that are high in fat, sugar and/or salt and to stimulate sustainable food processing and reformulation, is foreseen for the fourth quarter of 2022. Nutrient profiles and their categorisation of foods according to their nutritional composition could also become relevant in determining the ‘overall nutritional quality of food’.
There is no doubt that nutrition labels must be based on science. On Dec 14, 2020, in accordance with Article 29(1)(a) of Regulation (EC) No. 178/2002 of the European Parliament and of the Council of Jan 28, 2002 – laying down the general principles and requirements of food law; establishing the European Food Safety Authority (EFSA); and laying down procedures in matters of food safety – the EC requested the EFSA to provide scientific advice for the development of harmonised mandatory FoP nutrition labelling and the setting of nutrient profiles for restricting nutrition and health claims on foods.
In particular, the EFSA was requested to provide scientific advice on the following:
The EFSA has accepted the proposed deadline and expects to deliver its scientific advice by March 31, 2022. In this context, the EFSA will hold a public consultation on its draft scientific opinion.
The food industry now awaits the EC’s proposal for a regulation on the substantiation of green claims and a proposal for a directive on consumer empowerment for the green transition for 2021. The EC also intends to prepare a legislative proposal on harmonised mandatory FoP nutrition labelling by the fourth quarter of 2022. But in the meantime, schemes like Eco-Score and Nutri-Score are spreading around the EU.
Supporters of Nutri-Score and Eco-Score claim to be transparent and to strictly take into consideration scientific criteria – on nutritional aspects for Nutri-Score and on the environmental impact for Eco-Score. However, these schemes are also criticised as being mere marketing tools.
“A system similar to Nutri-Score for environmental aspects would create more confusion and would be equally misleading as it would be intended not to inform consumers but to tell them what to buy,” a spokesperson of the No-Nutriscore Alliance stated.
Notably, an official of the EU has publicly denounced the “ideological fallacy in describing the Nutri-Score as a panacea”.
In light of all this, it is important for the EU to establish a legal framework requiring companies making green claims to substantiate them. The same should apply to nutrition labels, which should inform and educate consumers rather than simply influence their purchasing decisions. Stakeholders in the agri-food sector should carefully observe both initiatives, taking action to ensure that their legitimate interests are voiced and represented within all relevant fora.
FratiniVergano’s Trade Perspectives©
