Food labelling and language requirements: a disturbing new law

In what language must the mandatory information on food packaging appear in Belgium, a country which has three national languages? Is it sufficient to mention them in a language that is easily understood by the consumer? Or should they appear in one or more languages depending on the linguistic region where the products are placed on the market? A law published on September 22, 2022 seeks to clarify the answers to these questions.

Context

Initially, the language in which the compulsory information had to be appear on the packaging of food products was only determined by the Belgian law of January 24, 1977 relating to the protection of the health of consumers with regard to foodstuffs and other products. This law provided in article 8, paragraph 1 that:

“the information on the label which are made compulsory in execution of the present law, are at least mentioned in the language or languages of the linguistic region where the products are placed on the market” (unofficial translation).

The Royal Decree of September 13, 1999 was adopted in order to specify the content of the compulsory information in implementation of the law of 1977.

Since 2011, however, the matter of mandatory information to be included on the packaging of food products is largely regulated at European level by Regulation (EU) No. 1169/2011 on the provision of food information to consumers, commonly known as the “FIC” Regulation.

Regarding language requirements, Article 15 of the Regulation provides that the mandatory food information “shall appear in a language easily understood by the consumers of the Member States where a food is marketed“. However, the same article 15 leaves it up to the Member States to impose on their territory that the information appear “in one or more languages […] among the official languages of the Union“.

Following the adoption of the FIC Regulation, controversy arose as to the scope of article 8 of the law of January 24, 1977. Indeed, this article did not explicitly refer to the information made mandatory by the European Union regulations, but only to the information made mandatory in execution of the 1977 law. However, its implementing decree had been repealed in 2019. Consequently, some authors considered that, given the adoption of the Regulation and the lack of its transposition into the law of 1977, only the FIC Regulation determined the language requirements (cf. notably G. Sorreaux, Publicité et étiquetage des denrées alimentaires, 2016, p. 144).

Another interpretation was that the two legislative instruments were complementary. According to this interpretation, by maintaining article 8 of the law of 1977, the Belgian legislator had made use of the possibility granted to the Member States to impose that the mandatory information be present in several languages depending on the linguistic region where the product is placed on the market.

Both interpretations led to different consequences. For instance, suppose a foodstuff is placed on the market in the German-speaking region. For those who believed that only the FIC regulation was applicable, the indication of the mandatory information in French was in principle sufficient, since French is a language that is easily understood by the inhabitants of this region. On the other hand, for those who believed that the two texts were complementary, it was compulsory to mention the information in German, as it is the official language of the German-speaking region.

Such discrepancies created legal uncertainty.

The new regulation

The Belgian law of July 12, 2022, published on September 22, put an end to these controversies – at least at first glance. This law modified article 8 of the law of January 24, 1977 as follows:

“The information that appears in the labeling and that is made mandatory in execution of this law, or by regulations and decisions of the European Union on this subject must at least appear in the language or languages of the linguistic region where the products are placed on the market” (unofficial translation).

A clear reference to the FIC Regulation is now added to this provision and the applicability of article 8 of the 1977 law is thus confirmed. It follows that the Belgian legislator has therefore simply made use of the possibility offered to him on the basis of Article 15 of the FIC Regulation.

The new law will apply from September 22, 2022. The authorities have promised a certain tolerance in terms of controls until the end of 2023, to allow companies to adapt their food packaging in the meanwhile. However, this is not a good solution in terms of legal certainty.

The new law also replaces the term “label” with “labelling”. According to the FIC Regulation, the former refers solely to product packaging, while the latter also includes any document accompanying the packaging. The language requirements are therefore made more stringent in that they are also mandatory for any document accompanying food packaging. One can think, for example, of a notice mentioning allergens contained in non-prepackaged foodstuffs.

An unresolved issue

One question remains unanswered despite the modifications brought by the new law. This question relates to the notion of “placed on the market“. Indeed, this notion is still not defined by the law, nor in the FIC Regulation. Yet, this will have practical consequences.

For instance, consider an orange juice manufacturer established in the Brussels-Capital Region. He sells his products to a wholesaler, who in turn sells them to supermarkets throughout the country. Is the manufacturer obliged to include the compulsory information on his packaging in all three languages, or is it sufficient for him to include them in the two official languages of the Brussels-Capital Region, i.e. French and Dutch? The answer to this question depends on the interpretation to be given to the concept of “placing on the market”. Does this notion refer to the first act of sale or does it include the sale to the final consumer? On the one hand, the manufacturer does not necessarily know where his products will ultimately be distributed. On the other hand, an overly strict interpretation of the notion of placing on the market undermines the objective of consumer protection. The law does not provide an answer to this question, which risks allowing legal uncertainty to persist in this area…

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