On 28 August 2023, an amendment to the Public Health Act was published, including an important change impacting the food industry. After lengthy debate, it was decided to impose an absolute ban on the sale of energy drinks to minors. Ultimately, proposed advertising restrictions were dropped, but new labelling requirements for beverages containing caffeine or taurine remain. Starting 1 January 2024, the new regulation will force manufacturers and vendors to adjust their internal procedures for marketing energy drinks in Poland.
What is an energy drink?
The amendment to the law bans the sale of beverages with added caffeine or taurine (commonly known as energy drinks), for which it provides a specific legal definition. The provisions apply exclusively to beverages which are foodstuffs that contain caffeine in excess of 150 mg/l or taurine, excluding products where those substances occur naturally. Thus, it concerns drinks to which caffeine in the amount of 150 mg/l or taurine (regardless of the amount) is added as an ingredient.
According to the enacted provision, drinks with ingredients containing these substances naturally should not be considered energy drinks. Here, an analogy can be drawn with sugar, which might be added to a product or occur naturally in a product containing, for example, fruit juice.
The adopted definition of an energy drink may raise doubts regarding classification of a product, which has implications for labelling and the opportunity to sell the product.
A ban on the sale of energy drinks, and not only for minors
The amendment bans the sale of such products in three cases:
- To persons under age 18, regardless of the place of sale
- On the premises of educational institutions (e.g. preschools, schools and other institutions), an absolute ban due to the place of sale, regardless of the age of the purchaser
- In vending machines, an absolute ban, as age verification is not feasible with this method of sale.
Therefore, vendors will have to implement appropriate procedures for verifying the age of the purchaser and the optimal method of presentation of such beverages in the store. The new provisions authorise vendors (in practice, cashiers) to demand that the consumer produce a document confirming the buyer’s age.
But the provisions do not impose an obligation to check every buyer’s age. Vendors will be given discretion, but will need to demand proof of age “in case of doubt” whether the buyer is 18 or older.
New labelling requirement for energy drinks
A new requirement for manufacturers and importers of energy drinks will be mandatory marking of the unit packaging of such products with a visible, legible and indelibly and permanently affixed notice reading “energising drink” or “energy drink.” Contrary to earlier plans, such information will not have to be placed in a frame, which was intended to clearly highlight the features of a product widely considered harmful.
However, the new requirement raises several questions. For example, should the information be designed in accordance with the EU’s Food Information to Consumers (FIC) Regulation (1169/2011) regarding font size? The amendment is limited to general terms such as “visibility” and “legibility” of the text, without indicating a specific font size, as provided for in Art. 13(2) of the FIC Regulation.
The Public Health Act, which contains the new provisions for energy drinks, does not expressly refer to any provision of food law. But undoubtedly, energy drinks, as a foodstuff, are subject to food regulations, including the FIC Regulation. Art. 13(2) of the FIC Regulation applies to the mandatory particulars listed in Art. 9(1), which include “the name of the food.” The regulation does not define “the name of the food,” but it should be understood as the name of the foodstuff, which would include how the foodstuff is identified in the regulations. Consequently, it can be assumed that “energy drink” (or “energising drink”) is the name of a foodstuff, which is subject to the requirements for a specific font size for such information.
This is followed by further questions and doubts, for example regarding the placement of the words “energising drink” or “energy drink” on the packaging.
Criminal liability for violations
Violation of the new energy drink rules could subject addressees of the regulation to liability for a petty offence or even a criminal offence.
Failure to properly label the beverages in question as an “energy drink” (or “energising drink”) can carry a criminal sanction in the form of a fine (up to PLN 200,000), imprisonment, or both. A person responsible for production or import of beverages with added caffeine or taurine is considered the perpetrator of this act.
This sanction appears to be limited only to cases of violations of the newly added provision of the amending act. Thus, placement of information not meeting the requirements of the FIC Regulation regarding font size or placement in the field of vision should be enforced under the administrative provisions foreseen in the Food and Nutrition Safety Act.
In turn, the sale of energy drinks to minors, in vending machines or at educational institutions, is punishable by a fine of up to PLN 2,000, which may be imposed on:
- The vendor (cashier) who sold the energy drink in violation of the ban, or
- The manager of a retail or food-service facility who failed to fulfil his or her duty of supervision and thus allowed an offence to be committed at the facility (e.g. in a particular store).
Additionally, the court may order the forfeiture of such beverages, even if they were not the vendor’s property.
Although restricted to the issue of the sale and labelling of these products, the special energy drink regulation is primarily intended to curb minors’ use of products commonly recognised as harmful to their health. Reports cited in the explanatory memorandum to the draft amendment, from the European Food Safety Authority and the National Institute of Public Health, show that in the European Union, nearly 70% of youths age 10–18 consume such products, and sometimes in significant quantities. From this point of view, the ban on sales to minors and in places where minors have regular access appears justified. On the other hand, the imposition of additional requirements entails costs for businesses (and their customers) due to the need to change the labels of such products. The act does not foresee, for example, a sell-off clause allowing products marketed in the current year to be sold until stocks run out. This may result in the need to dispose of some of the products, which generates unnecessary costs and would also be detrimental to the environment.
The coming year will show how the recent amendment to the public health provisions is applied in practice, and whether it actually has a positive impact on young people’s diet and health.
Joanna Krakowiak, attorney-at-law, Jolanta Prystupa, M&A and Corporate practice, Life Sciences & Healthcare practice, Wardyński & Partners