The EU Food Information Regulation and Distance Sales Wendy Hederman, Partner Mason Hayes & Curran GS1 Lunch &

1. The EU Food Information Regulation and Distance Sales Wendy Hederman, Partner Mason Hayes & Curran GS1 Lunch & Learn 11 October 2012

2. Introduction • The Food Information Regulation • EU Regulation (1169/2011) • Replaces many previous Directives and Regulations; • Will apply new rules from December 2014; • Significant changes to the labelling and presentation of foodstuffs; and • New requirements for mandatory food information.

3. Foods Sold by Distance Communication “… mandatory food information should also be available before the purchase is concluded.” (Recital 27) To allow consumers make informed purchases

4. Information to be Provided Mandatory information listed in Chapter IV of FIR • Article 9: ingredients, allergens, nutrition declaration, net quantity of food …. . • Further information provided in articles 10 to 35: further information for products containing caffeine, sweeteners, country of origin, alcoholic strength of beverages….

5. Information to be Provided …. …….. for distance sales All mandatory food information to be provided before sale concluded, except for the date of minimum durability or the “use by” date in article 9(f). • Focus on online retailers – but principles apply equally to all forms of distance sale, such as sales by catalogue, by email, by telephone • Automated vending machines and automated commercial premises excluded.

6. Distance Selling – Article 14 “Without prejudice to the information requirements laid down in Article 9, in the case of prepacked foods offered for sale by means of distance communication: • mandatory food information, except the particulars provided in point (f) of Article 9(1), shall be available before the purchase is concluded and shall appear on the material supporting the distance selling or be provided through other appropriate means clearly identified by the food business operator. When other appropriate means are used, the mandatory food information shall be provided without the food business operator charging consumers supplementary costs; (b) all mandatory particulars shall be available at the moment of delivery.”

7. The Food Supply Chain & FBOs • Responsibility to make the information “available” lies with the “food business operator under whose name or business the food is marketed”. (Article 8.1) • Fbo to ensure “presence and accuracy” of food information. (Art 8.2) • Wholesalers/retailers have a duty not to supply foodstuffs they know contains incorrect mandatory food information. (Art. 8.3) • No modification to information if it may mislead consumer. (Art. 8.4) • Fbo obliged to verify compliance (Art. 8.5) • Supplier must ensure mandatory particulars included if “marketed at a stage prior to sale to the final consumer”. (Art. 8.7)

8. Summary– FBO obligations • Primary duty for providing food information - brand owner. • Mandatory Information should be available at various stages of the pre-purchase supply chain. • Retailers cannot sell food that they know is non-compliant with food information law.

9. Distance Sales - Directive 2011/83 • Consumer Rights Directive (2011/83) – must be implemented in national law by 13 December 2013. • Does not apply to deliveries by regular rounds, e.g. milkman. • Stipulates trader must provide information. (Article 14 of the FIR is passive – does not articulate who must make information available.) • Information to include price, characteristics of good, etc. • Logical for retailer to arrange that FIR and Consumer Rights requirements be made available at the same time.

10. How to make the Information Available? • shall be available before the purchase is concluded • and shall appear on the material supporting the distance selling • or be provided through other appropriate means clearly identified by the food business operator • Where other appropriate means are used, the mandatory food information shall be provided without the food business operator charging consumers supplementary costs • cont…

11. How to make the Information Available? • “Other appropriate means” – clear, plain and intelligible language. • Information should be provided: • on the retailers website beside each product; or • by way of clear and prominent link to an external database which is freely accessible by the consumer.

12. Content Services Ltd v Bundesarbeitskammer (CJEU Case C-49/11) • Use of website link does not meet Distance Selling Directive 97/7/EC requirements to receive information via a ‘durable medium’. • Distinguishable from Food Information Regulation (FIR) requirements. • Case mentions Distance Selling Directive requirement (Article. 5) to ‘receive’ information was important. FIR contains no such requirement.

13. Content Services Ltd v Bundesarbeitskammer (CJEU Case C-49/11) • Distance Selling Directive requirements more onerous than the Food Information Regulations. • Use of “other appropriate means” such as a link to a website satisfies the Food Information Regulations provided; • All mandatory Article 9 information is included; and • Costs of providing this information is not passed to the consumer.

14. Summary of Legal Impact (1) • Information must be available: • on or through website prior to purchase; and • without charge to the consumer. • Cannot sell online without providing required information. • Brand owner should make information available to retailer in a website friendly format. • A co-operative system between brand owner and retailer is required to ensure accurate and complete information.

15. Summary of Legal Impact (2) • Pre-purchase information must be provided for the consumer • free of charge prior to purchase • on or through their website • Pre-packed food cannot be sold on a website if the necessary pre-purchase information is not available. • Brand owner should make information available in a user friendly format to retailer. • Brand owner and retailer should co-operate to ensure accurate mandatory information is available.

16. The EU Food Information Regulation and Distance Sales QUESTIONS?

17. Wendy Hederman, Partner Mason Hayes & Curran e: whederman@mhc.ie t: +353 1 614 5857