On 19 August 2016, France adopted Decree No 2016-1137 introducing mandatory country of origin labelling (COOL) for dairy and meat in processed foods.  The national measures strengthen the regulatory framework that exists at the EU level, which already imposes COOL requirements on specific foodstuffs, such as unprocessed and pre-packed swine, poultry, sheep and goat meat (Art. 26(2) of EU Regulation 1169/2011 of 25 October 2011), unprocessed beef and beef products (EU Regulation No 1760/2000 of 17 July 2000), fruit and vegetables, honey, etc.  After receiving the green light from the French State Council (“Conseil d’Etat”) and the European Commission, the trial period will now run for a period of two years, starting on 1 January 2017 until the end of 2018.

In the wake of recent food fraud cases, which shook the confidence of consumers in the food chain, France has been pushing the EU Commission to expand the scope of COOL requirements.  According to a 2013 study from the European Commission, 90% of consumers find it important that the origin of meat used in processed foodstuffs is labelled, while a 2014 Eurobarometer survey has highlighted that 84% of consumers are in favour of COOL for milk and dairy products.

Under the pilot scheme, foodstuffs that contain processed meat must indicate the countries of birth, rearing and slaughter of the animals.  COOL requirements will apply to any kind of meat.  In addition, milk and foods with dairy ingredients must indicate the countries where the milking was done and where the milk was transformed.  Where all these operations are conducted in EU Member-States, the names of the countries can be replaced by the term “Origin: EU”.  This information must appear in the list of ingredients, either immediately after the name of the relevant ingredient, or at the bottom of the list.  Companies must keep in their records all documents showing compliance with COOL requirements for a period of five years.  Failure to comply with COOL requirement may be subject to financial and ancillary penalties.

Noteworthy, COOL requirements will not apply to:

(i) Non-French companies: Article 6 of the Decree makes it clear that products that are manufactured or marketed in another Member State or in a third country do not have to comply with COOL requirements;

(ii) Foodstuffs containing meat or dairy ingredients where their quantity remains below a certain threshold to be soon determined by the Agriculture Minister;

(iii) Foodstuffs with protected designation of origin (EU Regulation 1151/2002) and organic products (EU Regulation No 834/2007).

The Decree also provides for transitional measures. Pre-packed foodstuffs manufactured or marketed before the entry into force of the Decree and whose labelling does not comply with COOL requirements may be put on the market until 31 March 2017.

The French initiative has recently paved the way for similar measures in other EU Member States.  In particular, Italy, Lithuania and Portugal are about to introduce mandatory COOL requirements for milk products and have recently notified the European Commission of their draft decrees. Back in May 2015, the European Parliament had already voted a non-binding resolution calling for COOL requirements for drinking milk and “lightly processed” meat and dairy products.

The food industry and trade associations have criticized the French initiative as being burdensome for food producers, costly for consumers, discriminatory and likely to jeopardize the functioning of the Single Market.  Until now, the European Commission has favoured voluntary labelling measures and remained unwilling to introduce mandatory COOL due to “limited consumer willingness to pay for such information, the administrative burden and more generally, the impacts that this may have on EU competitiveness and trade” (see here).  The report to be delivered by the French authorities at the end of the trial period may lead the European Commission to reconsider its views.

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Photo of Brian Kelly Brian Kelly

Brian Kelly is a partner in the European Life Sciences group and also co-chair of Covington’s Global Food Industry Group. Brian’s practice focuses on EU food and drug regulatory law, public and administrative proceedings, EU procurement advice and challenges, internal investigations, European Union…

Brian Kelly is a partner in the European Life Sciences group and also co-chair of Covington’s Global Food Industry Group. Brian’s practice focuses on EU food and drug regulatory law, public and administrative proceedings, EU procurement advice and challenges, internal investigations, European Union law, and product liability and safety. The Chambers Europe Guide to the legal profession lists Brian as part of our “world-class [regulatory and public affairs] team and describes him as a notable practitioner who is “very ambitious, thorough with a sharp intellect”. The Chambers UK Guide quotes clients saying: “his communication and work ethic stand out, he is very hard-working and dedicated when it comes to his cases.”

Brian’s advice on general regulatory matters across all sectors includes borderline determinations, food classifications, tissue and stem cell regulation, adverse event and other reporting obligations, manufacturing controls, labeling and promotion, pricing and reimbursement/procurement, procurement/tenders (including emergency use tenders, EU-wide tenders, Covid-19-related tenders), product life cycle management (foods and medicines), nanotechnology, and anti-bribery and corruption advice. Brian has also been advising on UK and European “Brexit” related issues including tariffs.

Brian has also advised and co-ordinated international projects on advertising/promotion, clinical research, data protection, the regulatory status of borderline products, food/cosmetic ingredient reviews and advises on regulatory aspects of corporate/commercial deals, particularly regulatory due diligence.

Brian is also experienced in representing clients in administrative and enforcement proceedings before regulatory authorities and in the UK and EU courts.

Brian is an honorary lecturer at University College London.