Finding a route through the labyrinth

The impact of EC legislation in the labelling and advertising field is felt strongly by the manufacturers and distributors of alcoholic drinks sold in the EU.

A wholesale reform of the food presentation field is currently ongoing and the new rules will directly affect the alcoholic beverage industry. This reform includes the imminent enactment of a new EC Regulation on the labelling, presentation and advertising of foodstuff which (i) groups together the rules on labelling and those on nutrition labelling, and (ii) for the first time addresses the issue of alcoholic beverages.

Recent developments have resulted in new rules for spirits and a dramatic change of position on wine labelling. The EC regulators have introduced strict rules on nutrition and health claims and further action is expected. The reform in the wine sector has just begun. Detailed rules on wine labelling will come into force in 2009. Soon, there will be new rules dealing with the definition, description and presentation of aromatized wines, wine-based drinks and wine-product cocktails.

In the advertising of alcoholic beverages field, the EU’s strategy is to support Member States to reduce alcohol related harm. The European Commission offers the industry a last chance to self-regulate the advertising of alcoholic drinks in the EU in an effective manner. Compliance with these self imposed rules will be a key factor when considering their efficiency. Failure to do so would most likely conduct to legislative proposals at the EU level.

Significant sanctions may be applied for failure to comply with the beverage presentation rules. Such sanctions may vary from one Member State to another, but could include fines, a prohibition on placing the products on the market or the removal of products from the market altogether. In addition, considerable costs could result from the obligation to modify all the labels of a category of drinks if these labels do not comply with the conditions set out by law.

Our aim is to provide our clients with prompt, accurate, relevant and up-to date legal advice on all aspects of alcoholic drinks labelling and advertising both at the EU and national level. We carefully monitor legislative proposals and changes in this sector so we can promptly update our clients and provide accurate advice.

In January 2008, the European Commission adopted a general proposal for a Regulation on the provision of food information to consumers, which also covers nutrition labelling. For the first time, this will include provisions on the marketing of alcoholic beverages. Here, the European Commission highlighted the need for consumers to be aware of the role played by alcoholic beverages in their overall diet and required that labels on alcoholic mixed beverages include information on their nutritional content. The initiative is meant to replace the currently applicable EC Directive on the labelling, presentation and advertising of foodstuff and the EC Directive on nutrition labelling for foodstuffs.

An EC Regulation on food enzymes was recently published in the Official Journal of the EU (OJ) on 31 December 2008. Only enzymes which feature on a list established at the EU level may be used and they will need to be declared on the label in the same way as allergens. This is the first time enzymes have been regulated at the EU level.

The European legislator has recently adopted a new Regulation on food additives and a new Regulation on flavourings. The changes to existing legislation on food additives and flavourings will also affect manufactures of alcoholic beverages. For example, it will be mandatory to provide information on food colours and flavourings on the label. These regulations were published in the OJ on 31 December 2008.

The 2006 EC Regulation on nutritional claims signalled a dramatic change of approach by the EU, through the introduction of a system of pre-market approval for advertising claims. The European Commission is expected to finalize a list of generic health claims by 2010. At present, the list proposed by the European Commission sets out 44,000 claims. The European Commission will finally adopt the list after its review by the European Food and Safety Authority (EFSA).

A new Regulation, setting out the conditions under which spirits can be marketed was adopted on 15 January 2008 and will be fully applied by May 2009. It will introduce a well defined policy for spirit drinks based on three product categories, rooted in the present definitions of products. Concerning geographical indications, the new Regulation takes into account the recent case law of the European Court of Justice, and foresees that technical files for these indications shall be published within seven years of the entry into force of the Regulation. Nonetheless, some issues are still under discussion (e.g. the use of compound names for the product).

Wine

A new Regulation on the common organisation of the market for wine was adopted on 29 April 2008. The Regulation aims at simplifying and clarifying the legislation previously adopted, but it also establishes new rules relating to the name of wines, property rights and geographical indications which will come into force on 1 August 2009. The International Organisation of Vine and Wine (OIV) is preparing a dossier supporting an exemption from the new requirements for the declaration of egg and milk (allergens) in wine.

Aromatised drinks

In December 2007, the European Commission launched a proposal for a Regulation to amend the current legislation concerning the general rules on aromatized drinks. The adoption procedure is still ongoing. This proposal aims at codifying all the amendments which affected the initial Regulation which was adopted in 1991.

At the EC level, there is no legislation specifically dedicated to the advertising for alcoholic beverages. Since December 2007, the EC general rules on misleading and comparative advertising have contained specific provisions on the advertisements for alcoholic beverages. The principal aim of this Directive is to control misleading advertising in the interests of consumers.

Some EC Member States have enacted more specific regulations on the advertising of alcoholic beverages. For example, the French legislation provides for a strict regulatory framework in this field. This can be summarized as a general prohibition on the advertising of alcoholic drinks, with limited exemptions from such prohibitions. Very limited possibilities to advertise alcoholic drinks exist (e.g. in newspapers or on the radio). Even advertising on a company’s own internet website is currently prohibited, a move which has been highly debated in France.

Other EC Member States, like the UK and Ireland, have embraced a softer approach. Authorities there have given the industry a chance to set its own rules on the advertising of alcoholic drinks. The Advertising Standards Authority (ASA) in the UK and the Irish Advertising Standards Authority (IASA) have successfully achieved their regulatory and watchdog role. The European Commission is encouraging self-regulation where statutory laws have not been adopted. However, should these rules fail to achieve a satisfactory degree of consumer protection, further Regulation at the EC level cannot be excluded.

Norton Rose LLP has a long-standing relationship with clients in the food sector, including those active in the alcoholic beverages market. Our aim is to provide advice on the most effective way to meet EU regulatory challenges and maximize the opportunities they involve.

Our regulatory team, based in our Brussels’ office has considerable experience advising clients in relation to foodstuff law, not only at the EC level, but also at a national level (e.g. France, Belgium, Germany, Italy, the UK, Spain or Romania). The breadth of our experience and capabilities is a significant advantage for our clients as it has allowed us to build an in-depth understanding of labelling and advertising issues, including both general EC rules and national laws enacted in the majority of the EC Member States.

We have the judgment and knowledge to help clients manage the risks created by this changing environment.

Common legal framework applicable to all type of alcoholic beverages¹

EC legislation currently applicable

• Regulation 1924/2006 of the European Parliament and of the Council of 20 December 2006 on nutrition and health claims made on foods. No amendment envisaged.
• Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertising. No amendment envisaged.
• Directive 90/496/EEC on nutrition labelling for foodstuffs recently amended by Directive 2008/100. Ongoing legislative proposal for an EC Regulation to replace the current Directive upon adoption.
• Directive 2000/13/EC of the European Parliament and of the Council of 20 March 2000 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs. Ongoing legislative proposal for an EC Regulation to replace the current Directive upon adoption.

EC legislation adopted and providing for transitional periods

• Regulation 1333/2008 of the European Parliament and of the Council of 16 December 2008 on food additives.²
• Regulation 1334/2008 of the European Parliament and of the Council of 16 December 2008 on flavourings and certain food ingredients with flavouring properties for use in and on foods.³
• Regulation 1332/2008 of the European Parliament and of the Council of 16 December 2008 on food enzymes.⁴

EC proposals to be adopted

• Under Regulation 1924/2006, list of permitted generic health claims. To be adopted by the European Commission by 2010.
• Proposal for a Regulation on the provision of food information to consumers, COM 2008 (40). To replace Directives 2000/13/EC and 90/496/EEC.

Legal framework applicable to specific categories of alcoholic beverages

Footnotes

1. This applies to alcoholic beverages which are specifically defined in the EC legislation (i.e. spirits, wine, aromatised drinks) and also to drinks which are not specifically defined in the EC legislation (such as beer or cider).
2. Regulation 1333/2008 was published in the OJ on 31 December 2008. The new Regulation replaces current EC provisions on food additives. It will apply from one year and 20 days following its publication in the OJ. However certain provisions on labelling will apply from two years and 20 days or eighteen months and 20 days following publication in the OJ.
3. Regulation 1334/2008 was published in the OJ on 31 December 2008. This Regulation replaces current EC provisions on food flavourings. Most of the provisions, including those on labelling, will apply from two years and 20 days after the date of publication in the OJ.
4. Regulation 1332/2008 was published in the OJ on 31 December 2008. This is the first time enzymes are regulated at EC level. It will enter into force 20 days following its publication in the OJ. However provisions on labelling will apply from one year after the entry into force of the Regulation.