James Peach, LLM, FMCG Regulatory Specialist at NIQ Brandbank, discusses digital food information governance in today’s evolving digital landscape
Conceptually Incomplete
To date, UK and EU food information law (1) (as it applies to distance selling) has focused on the provision of food information to consumers before purchase (2), to support informed purchasing decisions. This made sense in the relatively static world of digital technology that existed when the rules were written. Indeed, this approach still makes sense today, except it is now conceptually incomplete. The nature of how we consume digital food information has changed, and the ongoing and adaptable nature of todays’ digital food information disclosures, which persist long after purchase, would seem to merit a review of these rules.
It is worth remembering that the regulations, within which the current distance selling provisions sit, also create the broader objective to ensure consumers are appropriately informed about the products they consume (3), a duty which, of course, necessarily persists long after the point of purchase.
2D barcode technology
Today, 2D barcode technology (such as QR codes and Data Matrix codes) offers the opportunity to provide ever-more information to consumers on an ongoing basis, including long after purchase.
So, if we consider that 2D barcodes (with their inherent capability to provide ongoing and updated consumer information) can be used not only to support purchasing decisions, but can also continue to provide food information to consumers long after purchase – and we consider that such information is capable of being modified – it quickly becomes apparent that this presents a new challenge for food regulation and policy; especially when viewed through the imperative mentioned above to inform consumers about the product they are consuming (over and above having already told them about the product they have purchased).
Do we have appropriate regulatory safeguards in place to ensure the fidelity of the digital food information accessible to consumers after purchase and before consumption? In this sense, we must consider whether existing regulatory provisions governing the communication of food information to consumers are adequately conceived for this new reality.
A hypothetical scenario
Consider a hypothetical scenario where a consumer buys a long-life product and places it in their kitchen cupboard for a few weeks (or even months) before eventually choosing to use it.
If the consumer then decides to access food information available on the product through a printed 2D barcode, how can we be satisfied that the product manufacturer (or the party who controls the digital food information) has not changed the information being surfaced to the consumer?
Moreover, at what point (if ever) would it be deemed permissible to do so? These key questions must inform food information policy & regulation as we stride into an increasingly digital world.
The opportunity to improve food safety through digital means is real; so too, however, is the potential to undermine it. Suppose, for a moment, a manufacturer reformulates a product to no longer contain an allergen and then updates the food information available via a 2D barcode printed on an earlier version of the same product. The (already purchased) physical product’s composition has not changed, and any consumer who subsequently accesses the 2D barcode for ingredient information will be potentially dangerously misinformed by the updated information.
Responsibility
When the current EU food information to consumers regulation was published, its distance selling provisions (while not perfect) were the first example anywhere in the world of specific legal provisions to ensure consumers received certain key food information before buying foods remotely (including online). Those same regulations also include provisions designed to clearly allocate responsibility for changed, or modified food information. However, this may not be adequate to stop the food information in the above scenario from being altered, as the rules are not preventative in nature.
Of course, in the above scenario, the on-pack, printed ingredients declaration may have helped to provide clarity (if checked by the consumer), but relying on consumers to do this would then seem to modify the function of such on-pack information from one of informing consumers about risk, to one of defending manufacturers against ambiguity; perhaps not an acceptable policy position to meet the risks presented by this new reality?
Information divergence
A core principle of digital food information must be that it cannot diverge from what is true of the physical product. This demands that appropriate safeguards must be put in place, and there must be a clear allocation of responsibility for the same, regarding specific digital activities that may threaten to undermine that principle.
Voluntary food information
While food safety concerns will rightly remain the priority, digital technology also enables greater amounts of voluntary food information to be presented to consumers. Voluntary food information may take the form of nutrition and/or health claims, quality certifications, animal welfare claims, and many more information-types, including of course, claims going to environmental sustainability.
It is therefore interesting to note the recent report (4) from the European Court of Auditors, which identified that ‘…[official control] checks on voluntary information and online retail are not sufficient’. It seems likely then that increasing focus will be placed on the need to substantiate evidence supporting product claims made in the digital sector. Of course, the ease with which product claims can be made using 2D barcodes will demand equally nimble official controls.
Data intermediaries
Working with third-party data intermediary companies with robust checks & balances to control digital food information may offer a workable solution here. It is abundantly clear that the new reality of connected digital packaging stands or falls on the industry’s ability to collaborate to achieve workable solutions.
Equally important will be the ability of policymakers and legislators to engage with industry to create a digital food information regulatory framework that is fit for today’s digital reality but, at the same time, leaves room for innovation. Concepts such as an obligation regarding the digital provision of mandatory food information up to the point of consumption (going beyond the point of purchase) and controls to ensure that a digital food product version cannot diverge from what is true of its physical counterpart, are perhaps good places to start. These will be key to the future fidelity of the digital food information supply chain and demand pioneering, visionary and collaborative action from all stakeholders.
References
- Regulation (EU)1169/2011 on the provision of food information to consumers.
- Art 14(1)(a), Regulation (EU)1169/2011 on the provision of food information to consumers.
- Regulation (EU)1169/2011 on the provision of food information to consumers, recitals (3) & (4).
- European Court of Auditors, Special Report: Food Labelling in the EU, Consumers can get lost in the maze of labels, 25th November 2024.
