Consumer Law

Empowering Healthier Food Choices: A Critical Look at EU Food Information Law 

/ essexlawresearch / Leave a comment

Dr Nikhil Gokani, Lecturer in Consumer Protection and Public Health Law, University of Essex

One of the main ways the EU tries to improve nutrition is to inform consumers through labelling. The Farm to Fork Strategy states that one of the EU’s objectives is “empowering consumers to make informed, healthy…food choices”. However, the current EU food information law may not be as effective in empowering consumers to make informed, healthier food choices as the EU claims. 

UK-style Nutrition Information label for low fat Yoghurt. Source: Wikipedia.

Well-informed consumers? 

EU food information rules – particularly those in Regulation 1169/2011 on the Provision of Food Information to Consumers (FIC Regulation) – seek to ensure that consumers are well-informed by giving food information that is sufficient, accurate, non-misleading, clear and easy to understand. However, EU food law does not achieve this aim. 

Sufficient food information 

Consumer do not actually have access to sufficient food information: 

  • Nutrient content must be declared per 100g/ml as sold. This helps consumers compare similar products because similar products may have comparable water content or portion sizes. It is less helpful for different product types. Information per portion would help but there is no requirement to provide nutrition information per portion. Indeed, there is also no requirement to provide information on recommended portion sizes, which is concerning because consumers are now eating larger portions. It is also does not give an interpretive guidance, as front-of-pack nutrition labelling would do. 
  • Ingredients are listed but the actual quantity of an ingredient is not required unless the ingredient is emphasised on the labelling. For instance, consumers may be aware that a product contains fruit, but they will not necessarily learn the quantity of fruit. Similarly, health consequences of unhealthy ingredients are not displayed. 
  • Mandatory particulars are only required on packaging and on sales websites. Purchase intentions are, however, also influence by advertising, but information is not required on advertising. 
  • There are many exemptions. Most mandatory particulars are not required for products in smaller packaging. A nutrition declaration is not required for 19 products or product categories. Most inexplicably, alcohol (which is defined as food in EU law) is exempt from nutrition or ingredients labelling. 

Accurate and non-misleading food information 

The FIC Regulation prohibits inaccurate information. However, accurate information can still be misleading. 

Mandatory labelling rules can give be misleading information:  

  • The nutrition declaration may also be expressed as a percentage of consumers’ reference intake. However, percentage of reference intake can be misleading because it is a nominal value based on the needs of an average adult female. It is, therefore, inaccurate for most of the population, including many women. 
  • Where nutrition information is given per consumption unit, this can also be misleading because a single consumption unit (such as one square of a chocolate bar) may not reflect a portion size (such as an entire chocolate bar).  

Food labelling that is given voluntarily by manufacturers can also be misleading: 

  • Nutrition and health claims provide positive information about the nutritional or health effects of a food product. They must be accurate and non-misleading as per Regulation 1924/2006 on Food Claims. However, even accurate food claims may be misleading. For instance, the claim that “iron contributes to the reduction of tiredness and fatigue” may be used without any explicit requirement to mention that this is only true if there is inadequate dietary intake. 
  • Nutrition and health claims can also be misleading. For instance, children’s cereal with significant levels of added sugars can be labelled with promotional claims such as “high in fibre” or “contains calcium”. Consumers over-generalise the positive qualities of claims, which creates a health halo, leading consumers to think that products are healthier than they are. 

The FIC Regulation requires that food information “shall not be misleading” but even this does not prohibit all misleading information: 

  • Whether or not information is misleading is assessed using the benchmark of the “average consumer”. This is a notional, rational consumer who is “reasonably well informed and reasonably observant and circumspect”. One difficulty with this is the inconsistency between the assumed behaviour of the “average consumer” and the actual behaviour of consumers. For instance, behavioural economics shows that consumers prefer stability, form habits, have limited cognitive capacity and often evaluate only the most salient information. Even if consumers do make rational choices, rational choices are not necessarily healthy choices. For example, a single parent working full-time on a low income may rationally choose to purchase food that is locally available, has high energy per unit cost and is quick to prepare, even if this might be less healthy. 

Clear and easy to understand food information 

The FIC Regulation also requires that information shall also be “clear and easy to understand” but this is also rather ineffective: 

  • “Clear” does not mean noticeable. For instance, the mandatory nutrition declaration may appear on the back of packaging, where it is less noticeable. Essential information can also be illegible as the minimum character height of mandatory particulars can be less than 0.9mm 
  • Voluntary information shall “not be displayed to the detriment of the space available for mandatory food information”. However, marketing messages on labelling – such as prominent cartoon characters or bright colours – can be distracting and detrimental to the noticeability of mandatory food information. 
  • Even the requirement that food information is “easy to understand” is not that helpful. For instance, consumers should understand the amount of fat in a product but not whether is a healthy level or not. 

Empowered consumers?  

It is clear that EU food information rules do not inform consumers well. But, if the rules on consumer food information were improved, could such improved rules empower consumers? 

To empower consumers to make healthy decisions the food environment should be conducive to consumers genuinely using health-related information. The EU is well positioned to identify features of the market that not only impede but also facilitate this. In the Consumer Agenda, the Commission stated that “empowering consumers means providing a robust framework of principles and tools” and a “robust framework ensuring their safety, information, education, rights, means of redress and enforcement”. 

Research shows the factors influencing consumer food choice empowerment. These can relate to food-internal factors (eg taste), food-external factors (eg food information and physical environments), personal-state factors (eg physiological needs and habits), cognitive factors (eg skills and attitudes) and sociocultural factors (eg culture and political elements). These broader factors are not acknowledged by the Commission, which instead focusses on safety, information and education, and rights. 

If food choice is a function of both multiple intrinsic consumer qualities and external environmental factors, giving consumers information is not on its own empowering them. Therefore, the EU’s strong emphasis on information regulation to empower consumers to make healthy decisions should be met with scepticism. 

Information regulation as one important part of empowerment 

Even if information regulation cannot, on its own, empower consumers, it is still a significant precursor to empowerment. For information to contribute to empowering consumers to make healthy food decisions, two conditions are needed. 

First, the information rules should be well-designed: 

  • For mandatory labelling, the EU needs to reflect on developing evidence-based and context-sensitive rules on whether consumer information is provided, what is provided, where and when, and how it is provided. For instance, nutrition information should be provided in a way that allows consumers to understand it, such as through mandatory front-of-pack-nutrition labelling. Even though the Commission committed to proposing harmonised front-of-pack nutrition, it continues to miss its 2022 deadline.  
  • Regulating voluntary information more effectively is also essential. Food claims should be prohibited for less healthy products, as should other food marketing designed to or having the effect of increasing the recognition, appeal or consumption of unhealthy food.  

Second, the limitations of information should be recognised:  

  • How consumers make food decisions is multifactorial and complex. In recent decades, it has become clear that unhealthy diets demand tackling the commercial determinants of health that drive poor nutrition. These industry practices are designed to maximise product sales by encouraging individuals to over-consume unhealthy food at the expense of healthy food. This includes creating new, highly palatable products, promoting them aggressively, selling them at lower prices than healthy food, packaging them in large ready-to-eat portions and selling them in widely accessible locations. 

Even though the EU’s strong emphasis on regulating consumer food information to improve diets is misplaced, this is not to suggest that information regulation is unimportant. Rather, it is to say that food information (i) in its current form does not lead to well-informed consumers and (ii) on its own does not empower consumers to make healthy food decisions. 

Better laws that effectively address labelling as well as the other determinants are essential. We continue to call on the Commission to use its power to propose new EU laws for the benefit of consumers and their health. 

This blog post is based on a more comprehensive analysis of EU food information law published in the Journal of Consumer Policy: Gokani, N., (2024). Healthier Food Choices From Consumer Information to Consumer Empowerment in EU Law. Journal of Consumer Policy. 47 (2), 271-296. It is available open access here: https://doi.org/10.1007/s10603-024-09563-0.

Alcohol labelling and warnings: how progress at the Codex Alimentarius Commission can help States overcome challenges at the World Trade Organization

/ nikhilgokani / Leave a comment

By Nikhil Gokani, Lecturer in Law, Essex Law School, University of Essex

In this post, Nikhil Gokani writes about the work he is involved in on developing international standards, which can help countries navigate challenges under the rules of the World Trade Organization. Nikhil works on food and alcohol labelling regulation in the UK, EU and globally. He is chair of the Alcohol Labelling and Health Warning International Expert Group at the European Alcohol Policy Alliance (Eurocare). He is also a member of the Technical Advisory Group on Alcohol Labelling at WHO.

Alcohol-related harm and consumer protection

Consuming alcohol is a causal factor in more than 200 diseases, injuries and other health conditions. Alcohol consumption affects other people, such as family, friends, colleagues and strangers. Globally, about 3 million deaths each year result from the use of alcohol. Beyond health, there are significant social and economic burdens.

Consumers do not have sufficient knowledge about the content and effects of alcoholic beverages. Most consumers are unaware of the energy and nutrition values (such as amount of carbohydrates) and ingredients. Few consumers are aware of the health risks, such as alcohol causing at least seven cancers.

Alcohol labelling and global progress

Alcohol labelling is an important source of information for consumers. Labelling is unique in providing information at both the point of purchase and consumption. Labelling improves knowledge. It is an effective measure to help ensure consumers are well-informed and not misled. Increasing evidence also shows that health information can empower consumers to make healthier consumption decisions, including drinking less.

Unfortunately, few countries in the world require that consumers are given essential facts on labelling, such as ingredients lists and nutrition declarations. Even fewer countries require beverages to be labelled with information warning consumers about the hazards of drinking alcohol.

The most recent success was in Ireland where new rules will require alcohol packaging to display warnings that “Drinking alcohol causes liver disease”, “There is a direct link between alcohol and fatal cancers” and a pictogram showing that alcohol can harm the unborn child if drunk during pregnancy. Countries like Ireland, unfortunately, face international legal challenges, particularly under international trade law.

International trade law and international standards

International trade law can constrain the regulatory autonomy of States. Significant to alcohol labelling is the World Trade Organization (WTO) Agreement on Technical Barriers to Trade (TBT Agreement). Most significantly, Article 2.2 of the TBT Agreement states that technical regulations, including rules on alcohol labelling, shall not create “unnecessary obstacles to international trade”. Technical regulations shall not be “more trade-restrictive than necessary to fulfil a legitimate objective”. Preventing alcohol-related harm is indeed a legitimate objective. However, many States trying to introduce better alcohol labelling rules have been challenged because other States have argued that labelling rules go beyond what is more trade-restrictive than “necessary”.

When a WTO State’s rule about alcohol labelling is challenged, international standards can either help or hinder them.

On the one hand, Article 2.4 of the TBT Agreement states that where “relevant international standards exist” States “shall use them…as a basis for their technical regulations” except when this would be ineffective or inappropriate Therefore, where international standards are not aligned with public health interests, they can make it harder for States to introduce effective national rules.

On the one hand, Article 2.5 of the TBT Agreement provides a powerful defence mechanism. It states that, when a technical regulation is “in accordance with relevant international standards”, there is a rebuttable presumption that the national rule does not create an unnecessary obstacle to international trade. Simply stated, where the State complies with a relevant international standard, they have a potentially strong defence for their labelling rules. Therefore, good international standards can be very powerful to help countries defend their national labelling policies.

Codex Alimentarius

An international standard is one which is made by a recognised body and compliance is voluntary. For alcohol labelling, there is indeed an international standard: the Codex Alimentarius is a collection of standards, guidelines and codes adopted by the Codex Alimentarius Commission.

Where alcohol labelling is in compliance with relevant Codex standards, States could use this as a defence under WTO rules. This underlines the importance of having good Codex standards that support effective national rules on alcohol labelling.

Significant progress has been made at the Codex Alimentarius Commission. Alcohol labelling was discussed at four Sessions of the Codex Committee on Food Labelling (CCFL). The Report of the 46th Session of CCFL noted “there was common ground on which to proceed with the work” but little further progress has since been made in recent years. At that Session, the Committee agreed that Russia, European Union and India with assistance from WHO and Eurocare would prepare a discussion paper for consideration at the next meeting. In fact, this was the first time this Committee included an NGO in the preparation of a discussion paper, which is a testament to the global leadership by Eurocare in this field.  Unfortunately, however, no discussion paper was submitted by Russia. Therefore, WHO and Eurocare each submitted their own discussion paper to keep the matter moving forward. The WHO representative spoke objectively and convincingly at the 47th meeting of CCFL. These efforts led to alcohol labelling remaining on the Codex agenda – something which several States, no doubt under the influence of the powerful alcohol industry, had resisted.

The Codex Alimentarius Commission has now started a new consultation process. It issued a Circular Letter which asks State members and Observers to comment on how work on developing alcohol standards should proceed.

For this consultation process to work best for public health and consumer protection, we need everyone to contact their governments (emails here) to demand effective progress at Codex. Please join us in these efforts!

Navigating freezones in the influencerdom: a shadowlands guide

/ essexlawresearch / Leave a comment
Photo by Ronald Cuyan on Unsplash

By Dr. Alexandros Antoniou, Essex Law School

Influencer marketing has emerged as a formidable force in the realm of advertising, wielding substantial power to sway consumer behaviour and shape brand perceptions. Leveraging the credibility and reach of social media personalities, brands can effectively tap into niche audiences and foster authentic connections.

Despite its undeniable impact, there remains a notable lack of comprehensive research and regulatory oversight surrounding influencer marketing practices. As the landscape continues to evolve rapidly, it becomes increasingly imperative for regulators to delve deeper into this field in order to safeguard followers’ interests and maintain the integrity of digital advertising ecosystems in which influencers operate.

My new research looks at the rapidly evolving landscape of influencer marketing and its profound effects on the dynamics between social media users, advertisers, and brands. In my new article, I demonstrate that influencers have transcended the dichotomy of self-publishers vs traditional advertisers, shaping distinct career trajectories.

With the burgeoning influencer industry in mind, I critically examine the regulatory landscape, particularly the responsiveness of the Advertising Standards Authority (ASA) and the Competition and Markets Authority (CMA) to influencers’ professionalisation.

Despite the industry’s growth, regulatory gaps persist, leaving consumers vulnerable to lightly-overseen influencers. I caution that regulators rely on antiquated tools, allowing newcomers in the industry to fly beneath their radar.

For instance, the established advertising rule to make clear that ads are ads predominantly applies to those influencers who have forged brand partnerships. However, I argue that early career influencers who may not monetise their content, still wield significant influence. They have a remarkable knack of cultivating genuine connections that bestow hidden promotional content with an unmatched aura of trustworthiness.

I conclude that, from a regulatory standpoint, we are not seeing influencers’ increasing professionalisation. I advocate for a transformative shift in regulatory perspective to encompass influencers throughout their career journey, challenging the prevailing notion that only high-reach influencers warrant scrutiny.

Therefore, I emphasise the need for a recalibrated regulatory threshold that accounts for emerging influencers, endorsing a more comprehensive definition and a holistic approach that recognises the multifaceted nature of IM practices.

My article, published in the Journal of Computer, Media and Telecommunications Law (Vol. 29, Issue 1, pp. 8-21) urges regulators to adapt to the nuanced and evolving nature of influencer marketing to ensure a more robust oversight and integrity in this emerging profession.

Social Justice in EU Financial Consumer Law

/ essexlawresearch / Leave a comment

Dr Andrea Fejős, Lecturer in Law, University of Essex

Dr Fejős’ recent paper for Tilburg Law Review considers how social justice influences EU financial consumer law. It provides a new way of looking at social justice in consumer law by showing that equality of status based social justice has increasingly come to the fore in modern EU financial consumer law.

This emergent and complex set of private and regulatory rules on credit, insurance, investment and payment products has responded to the consequences of inequality between financial firms and consumers by engaging in product and rights regulation that balances the parties’ rights and duties and protects consumers from the consequences of status-based inequality. Looking forward the paper recommends that this social justice approach must be made transparent and become an express part of EU law and policy, both in order to raise consumer trust in the internal market and to more clearly set the future law and policy agenda.

Photo credit: Fortegra Blog