On 8 March 2023, the proposal to amend the Food Information Regulation (EU) No 1169/2011 – in the part concerning the 'bestbefore' (or shelf life, TMC) – with the idea of reducing food waste of non-perishable products. However, the proposed solution does not appear consistent with the shared objectives. Details and brief notes to follow.
1) Food Information Regulation, the false promises of reforms
The European Commissioner for health and food safety Stella Kyriakides has repeatedly announced a series of reforms of the Food Information Regulation. And DG SANTE of the European Commission has in fact organized two public consultations (1,2), for the revision of the reg. EU 1169/11 on:
- Front-of-Pack Nutrition Labeling (FOPNL). The long-awaited introduction of the NutriScore for public health needs, promised by the end of 2022, has in fact been postponed to the next legislature (3,4),
- labeling of origin of products and/or origin of their ingredients, for the enhancement of local agri-food chains. No further news on this,
- change of wording 'bestbefore' (in Italy, 'to be consumed preferably by'). And it is only this modification that is carried forward, precisely because it is the only one that does not disturb the Corporation to which the Commission is dominated.
2) 'Use by''bestbefore'
The reg. EU 1169/11 indicates - among the mandatory information to be reported on the label of packaged food products - the 'date marking'. (5) To be expressed, depending on the case, with the words:
- 'Use by'('to be consumed within'). The expiry date must be applied to the labels of rapidly perishable foods from a microbiological point of view. In fact, every product subject to the cold chain ('cold chains'),
- '.'('to be consumed within'). The minimum durability term is instead applied to all non-perishable products. Stable foods, sometimes dry, including those subjected to the frost chain ('ice chain'. E.g. deep-frozen, frozen products). (6)
3) The great enigma
DG SANTE made use of at least three public procurement contracts, between 2015 and 2021, to understand whether European consumers are able to distinguish the concepts of 'bestbefore' is 'use by' (7,8,9). Rivers of words have been spent on semantic and socio-anthropological analyses, with further collection of feedback of 32.000 consumers. (10)
The great riddle is whether there is a more effective way to express the concept of 'bestbefore'('to be consumed preferably by'). To enable consumers to understand that a pack of pasta (or breakfast cereals, oil, honey, spices, etc.) can also be consumed later. And thus reduce food waste.
4) Changing labels to reduce food waste? The proposal of the European Commission
The proposed change of the reg. EU 1169/11 boils down to adding to the mandatory wording 'bestbefore...' the phrase - also mandatory - 'often good after'.
It is proposed the use of mandatory indications provided for each of the official languages (see table. In Italian, 'Best before …. Often good as well').
The only certainty of this hypothesis, however, in the humble opinion of the writer, create confusion in consumers, the operators of the agri-food chains, the control authorities.
4.1) Technical and food safety issues
The proposed claim can it really apply to all foods that are not rapidly perishable from a microbiological point of view? Or, more likely, does it apply to some categories of products (e.g. pasta) but not to others, instead subject to progressive deterioration due to natural phenomena known in scientific literature (e.g. oxidation of oils)?
Food safety must also be considered in relation to Food Contact Materials. Has anyone considered the durability limits of materials in contact with foodstuffs (MOCA), of particular relevance in the case of migrations of dangerous substances from plastics, (11) recycled plastics (12) and bioplastics?
4.2) Legal issues
Legally, who assumes the responsibilities of a tax statement ex lege? The European Commission perhaps? How can the operator responsible for the information on the label be called to answer for any non-conformities of the product after the deadline defined by him following adequate testing of shelf life?
Who can guarantee a priori – without being able to check the effective compliance with the particular conservation conditions (e.g. 'keep away from sources of light and heat') that the products 'often' maintain the same nutritional, organoleptic properties? The issue is also relevant in terms of product compliance with the requirements of sector regulations (e.g. olive oils) and with the quantities declared on the label (13,14).
4.3) Practical issues
From theory to practice, how can i italian retailer – not only large-scale distribution, but also small neighborhood shops – and consumers interpret the vague concept of 'often'('good even beyond')?
Is essential in any case organize public information programs, the effectiveness of which depends on understanding the basic concept (bestbefore).
Add equivocal wording on the labels of all products does not help consumers to understand the value of correctly storing food, nor to distinguish between different foods, with potential food safety risks (e.g. eggs). (15)
5) Use-by date, Expiration date. The real issues to be resolved
The first, real question to be solved – for a reform of the Food Information Regulation useful for reducing food waste – is the absolute presumption of riskiness of foods subject to an expiration date (use-by date) starting on its next day.
The presumption juris et de jure unexpectedly introduced in the reg. EU 1169/11, as the writer has repeatedly denounced (5,16), is in clear contrast with the risk analysis criterion which governs the European food law.
Another question to be addressed is the national rules that lead to food waste through enforcement ex lege from 'bestbefore' is 'use by' fixed in contrast to EU law. The writer has complained to the Commission and allo European Ombudsman the Italian law which causes an unacceptable waste of milk, without receiving feedback (17,18,19,20).
Common sense wanted.
(1) Dario Dongo. EU Reg. 1169/11, reform on the horizon. GIFT (Great Italian Food Trade). 5.2.21
(2) Dario Dongo. Reform reg. EU 1169/11, public consultation. GIFT (Great Italian Food Trade). 16.1.22
(3) Dario Dongo. NutriScore and nutritional profiles, updates from Brussels. GIFT (Great Italian Food Trade). 10.5.21
(4) Marta Strinati, Dario Dongo. FOPNL, open letter to the European Commission. GIFT (Great Italian Food Trade). 25.12.22
(5) Dario Dongo. TMC and expiration date. GIFT (Great Italian Food Trade). 31.3.18
(6) TMC or expiration and method of conservation on the label of frozen foods. The lawyer Dario Dongo answers. FARE (Food and Agriculture Requirements). 31.12.21
(7) Flash Eurobarometer 425. (2018). Food waste and date marking. https://data.europa.eu/data/datasets/s2095_425_eng?locale=en GESIS, Leibniz Institute for the Social Sciences
(8) European Commission, Directorate-General for Health and Food Safety (2018). Market study on date marking and other information provided on food labels and food waste prevention: final report https://data.europa.eu/doi/10.2875/808514
(9) Open Evidence, London School of Economics, Brainsigns, BDI (2021). Consumer research study to identify new ways of expressing date marking that meet consumers' information needs whilst minimizing food waste https://food.ec.europa.eu/system/files/2022-02/fw_eu_actions_dm_20211130_report_1.pdf
(10) 'Only 49,5% of the survey participants interpreted the labels correctly and the difficulties of understanding are much greater for the 'best before' labels than for the 'use by' ones, reports the Commission. However, it would be useful to check the context and the ways in which the questions were asked
(11) TMC on vinegar in PET? The lawyer Dario Dongo answers. FARE (Food and Agriculture Requirements). 19.3.19
(12) Martha Strinati. Recycled PET, more chemicals migrate from bottles to drinks. GIFT (Great Italian Food Trade). 21.3.22
(13) Dario Dongo, Giulia Pietrollini. Marketing of olive oils, reg. EU 2022/2104. GIFT (Great Italian Food Trade). 20.11.22
(14) Dario Dongo. Shelf-life, food safety and weight loss. An integrated approach. GIFT (Great Italian Food Trade). 17.8.20
(15) Maria Ada Marzano, Dario Dongo. Fresh eggs, EU 'sell-by date' extended from 21 to 28 days. GIFT (Great Italian Food Trade). 15.1.23
(16) Dario Dongo. Expiry date and TMC, EFSA guidelines for the reduction of food waste. GIFT (Great Italian Food Trade). 20.12.20
(17) TMC and milk expiration date? Clarifications by the lawyer Dario Dongo. FARE (Food and Agriculture Requirements). 18.3.18
(18) Dario Dongo. Food waste, our battle over fresh milk. GIFT (Great Italian Food Trade). 24.7.19
(19) Dario Dongo. Establishment headquarters, milk origin and expiry decrees, GIFT denounces the Commission to the European mediator. GIFT (Great Italian Food Trade). 27.1.20
(20) Dario Dongo. Farm to fork, appeal by the meat and dairy industries to the European Commission. GIFT (Great Italian Food Trade). 5.3.20
Dario Dongo, lawyer and journalist, PhD in international food law, founder of WIISE (FARE - GIFT - Food Times) and Égalité.