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

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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.

Uber in London: the battle between public and private regulation

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Dr Yseult Marique, Senior Lecturer in Law, University of Essex

Dr Yseult Marique and her co-author Enguerrand Marique have published a chapter, entitled ‘Uber in London: The battle between public and private regulation’, in the collection Uber & Taxis: Comparative Law Studies, which was edited by D Renders and R Noguellou (Bruylant 2018).

The expansion of Uber as a major transport provider over the last ten years transforms deeply what is expected from transportation policies in many capitals around the world. It also draws the attention on the digital economy and its social and economic consequences for drivers. Tensions arise about the best ways to tackle the externalities arising from the digital economy: should Uber be banned all together as it has been the case in Spain and France? Should it be more strictly regulated as in California? Or should the market be left to bring competition and self-regulation of some kinds? To try to better understand the strategies followed across the world, the book Uber & Taxis: Comparative Law Studies brings contributions pertaining to 22 countries together, looking in a systematic way into two specific areas: first, how were taxis regulated before the advent of Uber and similar digital platforms? Secondly, how has regulation changed since Uber appeared and how does it address the specific social, economic and environmental challenges posed by Uber?

Our book chapter tries to answer these questions in the specific case of London. London is especially emblematic for its taxis and black cabs. It has also undergone a dramatic expansion of private hire (‘PH’) (such as Uber) in a very short time: in 2011, there were only 77,000 taxis and PH drivers throughout England. In 2017, the taxi and PH market in London represented ca. 150,000 drivers, i.e. nearly 40 % of the overall 356,000 licenced drivers on the English market. Very few aspects of this market are regulated. The quality of taxi drivers, the standards of vehicles and fares are subject to regulation mainly. However, the number of taxis is not limited, and taxis have no monopoly: besides taxis, PH has been operating since the 1960s and regulated since 1998. Therefore, the market is left largely unregulated regarding its outcomes themselves.

Such an expansion brings specific challenges for London in terms of the number of drivers to control and how to ensure that this control could be maintained at an appropriate level. It also means that many Uber drivers were not professional as black cab drivers had previously been, making the need arise for a range of driving practices to be policed (e.g. taxi ranks and priority lanes). Yet, London manages to address these challenges without new powers being delegated to it or without having to invent new regulatory tools. In short, the regulatory toolbox is at first sight satisfying. Let us unpack this claim before reflecting on it.

Transport for London’s (TfL) toolkit includes licensing, which has two main noticeable features: a) a fit for purpose test for drivers and b) a licensing fee. These two features have been tweaked in the case of Uber. Firstly, the fit for purpose test is no longer applied by Transport for London itself in the PH system (such as Uber). It has been transferred to Uber which now bears the risks of poor assessment of drivers’ qualities (i.e. withdrawal of the license). Secondly, the licensing fee became more differentiated. In the case of Uber, it has been multiplied by 1000 (Yes!) and stands now at £ 2,900,000 payable over 5 years. Other aspects such as a technical test, an English test, waiting times, tariffs and taxi meters, and hotlines have all been subjects to discussions and tensions. For instance, establishing a hotline for non-urgent matters is a significant burden for Uber, while not proving efficient. Similarly, the use of a taximeter, and of smartphone computing time and distance into a price, has been challenged, but ultimately accepted by the courts. Small differences remain to distinguish taxis from PH. For instance, upon a reference for a preliminary ruling to the European Court of Justice by English courts, the court recognized that ‘instant hailing’ was distinct from ‘hailing’. Waiting time and waiting areas cannot end up decreasing public safety. Yet, regulatory principles basically have not been changed after the advent of Uber in London.  

The regulation of Uber in London triggers three comments. First, the main problem brought by Uber is not the availability of regulatory tools to address Uber’s innovative features, but the need for TfL to adapt its enforcement strategy. In looking for ways to ensure compliance in a changed environment, more inspectors are needed, which is costly for TfL, yet extremely important to ensure clients’ security all over the city. Here, TfL made Uber bear in the first place the extra costs that it generated for TfL. Secondly, the London Mayor is not satisfied with the current solution and he has asked the national level to get broader powers to regulate private hire (and to impose a maximum number of licence). Thirdly, Uber is only one part of the transport policy in London. The overall policy objective in London is to ensure more sustainable transport, which means that too many cars – Uber car or otherwise – are not welcome in London. A range of measures are thus taken to seek to limit their use in general. At the same time, a broad range of transport means is welcome as it makes mobility more flexible. In short, London can see Uber both as a blessing and a curse – what matters is not to ban it, only to keep it within reasonable measure. This leads TfL to seek to tweak Uber’s licence to adapt it to the ongoing changes in the ways in which mobility platforms work. Here a striking development is the fact that Uber is now operating in London under a short-term licence that is regularly renewed subject to modifications. Such practice of short-termism compels economic actors to behave on their best at all time, mindful to take social interest to hart rather than thinking about price cuts in the long term. A creative way to keep Uber under TfL’s control without making any drastic innovative changes to the regulatory tools?