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Sugar-free? Not so simple

The practice of food labelling inspectors prevents consumers from making informed choices—effectively working against the policy of promoting healthy eating.

The right to information is a basic right of consumers. Therefore food producers are subject to detailed obligations concerning product labelling. The main requirement flowing from these complex and often nit-picking regulations is to provide accurate information about the characteristics of the product. But it is not always permissible to place true information on the product. Is there a rational explanation for this paradox?

When providing information about the ingredients of a product, the producer may also want to communicate to the consumer what the product does not contain. Knowing that a product does not contain salt, sugar or preservatives is important to the consumer and may affect the decision to buy the product.

But the food labelling inspection services object to information about the characteristics of a product that are shared by all products in a given category. For example, it is forbidden to label a product as “free of preservatives” when by law such products cannot contain preservatives. For this purpose, inspectors cite Art. 46(1)(c) of Poland’s Food Safety and Nutrition Act of 25 August 2006, which prohibits suggesting that a food has special properties if all foods of the same type have such properties.

Unclear rules

An example is vegetable purées. According to law, preservatives may not be added to a vegetable purée sold in a glass jar, but preservatives may be added to the same product sold in a paper carton. In disputing the legality of including true information that a vegetable purée sold in a glass jar does not contain preservatives, the inspectors are assuming that the consumer is aware of this distinction and thus has a thorough knowledge of the ins and outs of the Regulation of the Minister of Health of 22 November 2010 on Permissible Additives. This is an erroneous assumption, considering that even food companies and inspection authorities have trouble properly interpreting this regulation, as witnessed by the number of post-inspection recommendations and disputes concerning the composition and labelling of foods.

Statements that a product contains “no sugar,” “no salt,” or “no preservatives” are sought after by consumers, because they enable consumers to make informed choices and to compose their diets rationally. Use of such statements is also consistent with a policy of promoting healthy eating.

One of the manifestations of this policy is the proposed amendment of the Food Safety and Nutrition Act with respect to foods for children. The amendment is intended to prevent consumption by children of food products containing substances which in excess quantities could have a negative impact on the child’s health or development. This concerns artificial sweeteners (e.g. saccharin and glucose-fructose syrup), flavour enhancers (e.g. monosodium glutamate), trans fats, salt in quantities exceeding 1.25 g (or 0.5 g of sodium) per 100 g of product, monosaccharides (exceeding 10 g per 100 g of product), and fatty acids (exceeding 1 g per 100 g of product).

Children protected

If the proposed amendment is enacted, it will be illegal to sell or advertise foods containing the substances identified in the amendment at preschools, elementary schools, middle schools, and other educational and childcare institutions and facilities. In order to protect children’s health, the Polish Parliament is considering such far-reaching restrictions on the freedom to do business in the area of distribution channels for foods regarded as unhealthy due to their ingredients.

Conscious choices

Meanwhile, the practices of inspection authorities described above prevent consumers from making informed choices, and thus in effect run counter to the policy of promoting healthy nutrition. By banning the use of true statements concerning characteristics that are common across a product category, the authorities are placing protection of rules of competition among businesses above the valid interests of consumers. But there are other legal mechanisms to protect competition available to the competing businesses themselves as well as other authorities (such as the Office of Competition and Consumer Protection and the civil courts).

But is there room for a compromise solution under the Food Safety and Nutrition Act in its current form, upholding both the literal wording of the regulations and the need to educate consumers? The interim regulations concerning the labelling of juices, included in the Regulation of the Minister of Agriculture and Rural Development of 15 March 2013 Amending the Regulation on Food Labelling, seems to offer a way out.

Under this regulation, it will be permissible to include information on the packaging of fruit juices, which as a category cannot contain added sugar, stating that “from 28 April 2015 no fruit juices contain added sugar.” Perhaps this exception will open the way for producers of other foods who would also like to communicate to consumers that their products do not contain certain substances, thus allowing them to educate consumers while at the same time promoting their own products and the entire product category.

Joanna Krakowiak, Life Science Practice, Wardyński & Partners

The Polish version of this article was published in Rzeczpospolita daily on 5 June 2013.