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The EU has notified the World Trade Organization (WTO) that it intends to allow two new labels on foods for people intolerant to gluten:
- „gluten-free“: max. 20 ppm gluten (unchanged).
- „very low gluten“: max. 100 ppm gluten (unchanged).
- New label: „suitable for people intolerant to gluten“: may accompany „gluten-free“ or „very low gluten“ labels, without further requirements.
- New label: „specifically formulated for people intolerant to gluten“: may accompany „gluten-free“ or „very low gluten“ labels, if the product is specially produced to
- reduce the gluten content of gluten containing ingredients (i.e. gluten-free wheat starch), or
- substitute the gluten containing ingredients with other ingredients naturally free of gluten.
Furthermore, the regulation explicitly forbids the use of these labels on baby milk, pointing to an earlier directive forbidding the use of gluten-containing ingredients in all baby milk.
Although the notification was sent to the WTO on 25 March 2014 already, it seems to have gone unnoticed by the celiac community until now, probably because the document was never really announced and is unlikely to be stumbled upon.
The draft was uploaded to a specific EU-WTO notification database called TBT, without further announcement to the general public. In fact, the European Commission seems to stall individual celiacs asking about this regulation by having them watch sources through which no publications on this regulation can be found even until today (1 June 2014), while food industry representatives were able to comment on an earlier draft of the legislation in November 2013 already. (Update 3 June 2014: Mr. Mathioudakis states that the Commission shared the early draft with Member States, not with stakeholders and that „[t]he fact that certain stakeholders managed to obtain a copy of it might depend on the policy of national authorities for consulting stakeholders“.)
- Draft of 25 March 2014: Commission Implementing Regulation on the requirements for the provision of information to consumers on the absence or reduced presence of gluten in food (SANCO/10123/2014, POOL/E4/2014/10123/10123-EN.doc).
- Draft of 11 November 2013: Commission services working document.
- Presentation of 28 November 2013 by the German food industry lobby group BLL, a member of European lobby group FoodDrinkEurope, showing it possessed the 11 November 2013 draft (page 62 onwards).
(The Serious Celiac did not possess or know of these documents or their contents before 31 May 2014.)
My frustration about the lack of transparency aside, I must say the Commission found a good way to satisfy all parties
The proposal allows products that are „specially produced“ to „substitute gluten containing ingredients with other ingredients naturally free of gluten“ to carry the label „specifically formulated for people intolerant to gluten“. However, the proposal fails to explain how it should be determined that there were „gluten containing ingredients“ in the first place. Does the original recipe of the producer’s grandmother count? If his grandmother’s recipe called for wheat flour in the sauce, but the producer decided to use corn flour instead, can he then label his product as „specifically formulated for people intolerant to gluten“? Or should we further consider his intentions, by asking him if he did this „specially“ for the celiacs, or not? Details need to be filled in here, and hopefully the Commission does not intend to let local authorities make those decisions, because that will once again lead to differences between member states.
Furthermore, the Commission should consider how to ensure that people who are intolerant to gluten are adequately informed of the difference between a food that is specially produced, prepared and/or processed in order to reduce the gluten content of one or more gluten-containing ingredients and other food that is made exclusively from ingredients naturally free of gluten. — Recital 41, Regulation (EU) No 609/2013
Remember this recital came after long and heated debate in both the European Parliament and the Council. In the end, they agreed to only ask the Commission to come up with a solution for foods of which the gluten content of gluten-containing ingredients was reduced, in other words: foods with stuff like gluten-free wheat starch. Not to invent some completely new „ingredients substituted“ category.
If nobody asked the Commission to create this category, then why did they do it? I don’t know if it came directly from the dietetic foods industry, but it suits them rather well. Regular food producers will be scared away from this disease-related, poorly defined label and thus the dietetic food industry gets some market protection after all. The problem I have with this two-class labeling for essentially the same foods (naturally gluten-free, max. 20 ppm gluten), is that it will reduce attention for the existing „gluten-free“ label. Patients will be misled, thinking the „gluten-free“ labelled products are not as safe as the „specially formulated“ ones (while actually, both can have max. 20 ppm)… And, actually, maybe they are right: With two-class labelling, food authorities might even become less inclined to enforce the maximum gluten content of the simply „gluten-free“ labelled foods („Oooh, you really cannot have gluten? Why didn’t you choose the one specially formulated for your disease then?“)… Reduced demand for „gluten-free“ labelled foods (as opposed to „specially formuled“ foods) will lead to reduced supply from regular food producers… Result: Reduced (or more expensive) choice for the celiac consumer.
I can accept, for Italy’s sake, that we create this additional „specially formulated“ label, but only for a clearly defined category of foods then (Article 3(3)(a) of the proposal: the gluten free wheat starch type of foods), and not for some vaguely defined subset of naturally gluten-free foods like „ingredients substituted“ (Article 3(3)(b)). Taking that notion out of the proposal again would be in line with the mandate of EU 609/2013. (end of update 2 June 2014)
So, I propose the entire Article 3(2) is taken out as well.
Update 6 June 2014 (cont.): Considering the only remaining new category that I can, for Italy’s sake, agree with (Article 3(3)(a), foods specially produced to reduce the gluten content of gluten containing ingredients, i.e. gluten-free wheat starch), I think the wording currently proposed does not reflect the true meaning of this category and wrongly suggests that these foods are a better choice for people intolerant to gluten than naturally gluten-free foods. I propose the following wording:
The food information referred to in paragraph 1 may* be accompanied by the statement „specifically formulated to reduce the gluten content of the gluten containing ingredients“ if the food is specially produced, prepared and/or processed to reduce the gluten content of one or more gluten containing ingredients. — My proposal
(end of update 6 June 2014)
Regarding the explicit prohibition of „gluten-free“ labels on baby milk, I personally would like to see a „gluten-free“ label on baby milk, even if all baby milks are gluten free, because I simply did not know that all baby milks are gluten free by law! Are all new parents supposed to know about European Directive 2006/141/EC? I don’t think so. I also don’t really see why any baby milk producer would not want to communicate this fact to their customers. Even if some producers don’t, then I think the producers that do want to should at least be allowed to make some statement. According to Fratini Vergano, a European law firm, the Germans came up with the idea of forbidding „gluten-free“ on baby milk, suggesting the statement “produced without gluten-containing ingredients according to the law” instead. Even though this phrase could also lead to questions („according to the law“ sounds like a caveat), it’s better than nothing. But the Commission did not adopt this alternative statement in its proposal. It forbid the use of „gluten-free“ on baby milk, but forgot to allow the alternative.
The proposal is not clear about the use of „gluten-free“ labels on naturally gluten free foods. From what I understand about the situation under current legislation (sorry, no sources), some national food authorities can be very uptight about (what they call) „misleading“ use of gluten-free labels, forbidding a producer to put a „gluten-free“ label on food that is actually gluten free for the sole reason that that particular authority deems all similar foods to be gluten free.
I think European regulations should not allow local judgement calls on this matter. For starters, the term „similar foods“ allows different interpretations. Food categories might seem gluten free at first glance (e.g. yoghurt), but can be found in supermarkets mingling with gluten-containing variants (e.g. breakfast yoghurt containing wheat, yoghurts containing wheat fibre for digestion, etc.). As a celiac consumer, I would like to see „gluten-free“ logos on yoghurts, but producers that try to use them might run into uncooperative officials, depending on the country where they are located.
Second, there are those cases of foods that should just be gluten free, because they are by nature, but end up in the shops with gluten contamination, such as millet, rice, buckwheat, sorghum, soy, spices, sauces, etc. The list of naturally gluten free foods found to have been affected by cross-contamination keeps growing and growing and seems to be only limited by the number of gluten tests that are performed. Internet forums are filled with celiac consumers avoiding entire (naturally gluten free!) food categories, such as corn, soy, chocolate, etc., because they cannot make any distinction between the cross-contaminated ones and the truly gluten free ones. At the same time, individual producers that go out of their way to ensure their product is really gluten free are not certain they will be allowed to communicate the results of their efforts to the market by means of a „gluten free“ label!
In this environment of cross-contamination and blurring boundaries between food categories, there should be no obstacle for any food producer that is sure that his food is gluten free, to label it as such. Unfortunately, the current proposal only aggravates this problem, because, no matter what your opinion is, Recital 10 is simply… incomprehensible:
(10) It should also be possible for a food containing ingredients naturally free of gluten to bear terms indicating the absence of gluten, provided that the general conditions on fair information practices set out in Regulation (EU) No 1169/2011 are complied with. In particular, food information should not be misleading by suggesting that the food possesses special characteristics when in fact all similar foods possess such characteristics. — Recital 10 of 25 March 2014 draft
It starts out good, stating that it should be possible for naturally gluten free foods to carry a gluten-free label, but then suddenly starts to turn around by making a vague reference to the FIC about „fair information practices“ and ends up even copying a part of it (Art. 7(1)(c)), thereby suggesting that it is actually not allowed! What a mess! And why?? My best guess is that the Commission is afraid to be stepping out of bounds, afraid it would be turning over part of a EP/Council Regulation (the FIC) in a mere implementing act…
On the contrary, I think the Commission has room enough to make a decision on this issue:
The Commission shall adopt implementing acts on the application of the requirements referred to in paragraph 2 of this Article — Article 36(3) FIC (emphasis added)
Food information provided on a voluntary basis shall [..] not mislead the consumer, as referred to in Article 7 — Article 36(2) FIC
Food information shall not be misleading, particularly [..] by suggesting that the food possesses special characteristics when in fact all similar foods possess such characteristics, in particular by specifically emphasising the presence or absence of certain ingredients and/or nutrients — Article 7 FIC
In summary, the Commission is tasked to adopt an act on the application of the requirement that food information should not be misleading by emphasising the absence of gluten when in fact gluten is absent in all similar foods. If national authorities have difficulties determining whether this description applies to a certain food or not (and it is my impression that some find it applicable more readily than others), the Commission is clearly tasked to solve this problem. The Commission should not forsake this duty with an ambiguous recital, but should provide a clear provision, preferably contained in a proper Article.
I suggest Recital 10 to be replaced by the following text:
(10) Considering the omnipresence of gluten contamination in foods and the lack of clear boundaries between food categories, it should also be possible for a food containing ingredients naturally free of gluten to bear terms indicating the absence of gluten. — My proposal
Period. That’s it, no more suggestive remarks about „misleading“ gluten free labels. Then, a proper Article, let’s say Article 3(4):
4. The food information referred to in paragraphs 1 to 3 can not be considered a misleading suggestion under Article 7(1)(c) of Regulation (EU) No 1169/2011 solely by the fact that it is indicated on a food containing ingredients naturally free of gluten. — My proposal
Based on personal symptom experiences, many celiacs choose to avoid foods made with gluten-free wheat starch, oats, foods containing 100 ppm gluten, or even foods containing 20 ppm gluten. Yet all these categories get their special labels suggesting that they are good choices for celiacs! In such a constellation it is unacceptable that naturally gluten free foods, which many celiacs prefer over dietetic foods, are not unambiguously allowed to carry a gluten free mark as well.
According to the WTO notification form, the European Commission aims to adopt the new legislation this month already. However, it also still needs to be discussed within the Standing Committee on the Food Chain and Animal Health (SCFCAH). Summaries of their meetings from 2012 until now show no traces of gluten discussion whatsoever, and their next meeting is scheduled 13 June 2014 (first one after that is 17 October 2014).
Possible explanations for the short time schedule could be that the matter has already been agreed upon in back room discussions, or that the discussion did take place in a SCFCAH meeting, but was left out of the minutes. The discussion of the preceding delegated act in a 24 May 2013 meeting of the FIC Expert Group was also announced in the Agenda, but omitted from the Summary report. According to Basil Mathioudakis, head of the responsible Commission unit, no discussion took place in that meeting on the substantial rules.
How to voice your opinion
Considering the late discovery of these documents, the little time left according to the Commission schedule, the half year head start given to the food industry, and the lack of information about the individual SCFCAH members, I suggest that if you have any important comments, you either contact Basil Mathioudakis directly, or make a comment on this blog post, to which I will send him a link. You could also ask your national ministry, , patient support group, university or research centers if they know who is going to the SCFCAH meeting. Please share your findings with other celiacs in the comments below.
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