Towards a mandatory country of origin labelling ('COOL') for all products?

A draft "Commission Implementing Regulation on the provision of voluntary indication of origin or place of provenance of foods" released by the Commission in the early days of the New Year has raised concern among stakeholders. Confusion around the actual scope and purpose of the draft piece of legislation raised concerns that the Commission would impose, in the near future, that all prepacked foods would have to mention the country of origin of their ingredients. That is not the case, but the proposed new rules will nonetheless have an impact on products bearing an indication of country of origin or place of provenance and where that country of origin or place of provenance is not the same as that of the primary ingredient in the product.

1. What is the draft implementing regulation about? 

While most provisions of the FIC Regulation became applicable on 13 December 2014, the applicability of some of its provisions was dependent on the enactment of implementing rules. It is notably the case of the rule enshrined under Article 26(3) of the FIC Regulation, that requires that where the country of origin or the place of provenance of a food is given and where it is not the same as that of its primary ingredient, the country of origin or place of provenance of the primary ingredient in question shall also be given or the country of origin or place of provenance of the primary ingredient shall be indicated as being different to that of the food.

Article 26(8) indeed empowered the Commission to adopt delegated acts for the purpose of the application of Article 26(3) and actually, the mandate of the Commission under the FIC Regulation initially entailed that such implementing acts would be enacted by 13 December 2013. 

The draft published by the Commission excludes geographical indications and trade marks from its scope of application, however Article 1(2) leaves open the possibility to adopt specific rules for the application of Article 26(3) to food products bearing GIs or trade marks. It is important to note that the draft implementing regulation applies only  to food products that bear indications regarding country of origin or place of provenance and of which a primary ingredient is from a different country of origin or place of provenance than the one indicated on the product.

2. Content of the draft implementing regulation

In essence, the draft implementing regulation defines (i) the way the country of origin or place of provenance of the primary ingredient must be indicated and (ii) the way the indication must be presented. 

a. Indication of the country of origin or place of provenance

The draft implementing regulation provides for two ways of mentioning the country of origin or the place of provenance of a primary ingredient which is not the same as the given country of origin or the given place of provenance of the food product, i.e. either by a reference to a geographical area, or by means of a particular statement along the lines of "(name of the primary ingredient) does/does not originate from (the country of origin or the place of provenance of the food)". 

When the choice is made to refer to a geographical area, the draft implementing regulation provides for different possibilities: 

• “EU”, “non-EU” or "EU and non-EU"; or
• Region, or any other geographical area either within several Member States or within third countries, if defined as such under public international law or well understood by normally informed average consumers; or
• FAO Fishing Area, sea or freshwater body, if defined as such under international law or well understood by normally informed average consumers; or
• Member State(s) or third country(ies); or
• Region, or any other geographical area within a Member State or within a third country, which is well understood by normally informed average consumers; or
• The country of origin or place of provenance in accordance with specific Union provisions applicable for the primary ingredient(s) as such.

b. Presentation of the information

Similarly to other mandatory particulars appearing on the label of a food product, the reference to a geographical area or, respectively, the particular statement required pursuant to the draft implementing regulation, have to be provided in a font size where the x-height, as defined in Annex IV to the FIC Regulation, is equal to or greater than 1,2 mm.

Furthermore, the draft implementing regulation requires that the reference to a geographical area (or, respectively, the particular statement) appears in the same field of vision as the indication of the country of origin or place of provenance of the food. The latter information may be given either with words or by means of non-scriptural form. In the first case, the draft implementing regulation additionally requires that the font size used to provide the reference to a geographical area (or, respectively, the particular statement) has an x-height of at least 75% of the x-height of the indication of the country of origin or place of provenance of the food. 

3. Planned entry into force and transitional provisions 

In its current wording, the draft implementing regulation provides that the new rules will apply from 1 April 2019. However, a transitional regime is provided for products that have been placed on the market or labelled prior to that date. It will be possible to lawfully market these products until the stocks are exhausted. 

4. Comments on possible impact

In a wider context, rules on COOL have undergone significant developments over the last couple of years, with several Member States including France, Italy, Greece and others having enacted national rules on the mandatory indication of the origin of certain ingredients (see e.g. in relation to the rules enacted in France. The legal basis for these national initiatives is however different from the legal basis of the draft implementing regulation, given that the former are based on Article 39(2) of the FIC Regulation. 

Whether or not the draft implementing regulation will be amended or not before adoption, and whether or not it will be applicable on 1 April 2019, will depend on the next steps of its procedure of adoption. Food business operators are advised to start reviewing their current labels in order to assess whether they may need to take any action to ensure compliance with the new rules.