Food Law News - UK - 2002

FSA News Release (2002/0237) and Consultation Letter, 6 August 2002

CHOCOLATE - FSA consults over implementation of EU directive to allow UK to keep traditional chocolate recipe

The Food Standards Agency is consulting on draft regulations to implement a new European Directive that defines chocolate. The directive, negotiated upon by the UK, means that the UK's traditional milk chocolate recipe can stay the same, with just a small change to its labelling when sold elsewhere in Europe.

The FSA has been part of on-going debates over the definition of chocolate in the European Council and European Parliament. This related specifically to the rights of different countries to continue to follow their own traditions of making chocolate and still call the product 'chocolate'.

The UK argued strongly the case for our traditional recipe, keen that our consumers and producers be able to keep eating and making the chocolate they prefer. The debate has come to an end and as a result of the FSA's pressure, the Directive will continue to allow British chocolate makers to keep to their usual recipe. They also continue to have the right to call their chocolate 'milk chocolate' when on sale in the UK. To distinguish it from other recipes of chocolate, it will be marketed as 'family milk chocolate' when sold in other European countries. The Directive also introduces restrictions on the types and numbers of vegetable fats that can be used.

Mark Woolfe, in the FSA's Food Labelling and Standards Division, said he was pleased with the way the final Directive turned out;
'An early suggestion from other EU member states was to call our chocolate "vegelate" which was totally unsatisfactory. We have negotiated hard and managed to come to an agreement with other member states so that our producers can keep to their own traditional recipe.'

The UK has the second highest consumption per person of chocolate in Europe, with a market value of £4 billion. However the chocolate traditionally produced in the UK for the British consumer is different from chocolate produced in most of Europe. It is generally made with more milk and less cocoa; UK manufacturers have also used small amounts of vegetable fats other than cocoa butter in their chocolate for decades.

Views from stakeholders on the new Directive are being sought by the Agency, prior to full implementation by August 2003.

In addition, the Agency is also seeking the views of stakeholders on the use of the word 'chocolate' to describe products with a chocolate flavour. This is to resolve an apparent confusion in the labelling regulations over whether using chocolate refers to a chocolate flavour derived from the cocoa powder or from 'real' chocolate as an ingredient.

Background Information

The first European Union chocolate directive was agreed in 1973 and allowed the then new entrants to the European Community, the UK, Ireland and Denmark, to use a small amount of vegetable fats in their chocolate. The directive allowed the UK to call its chocolate 'milk chocolate' when marketed nationally but it had to be called 'milk chocolate with high milk content' when sold elsewhere in the EC.

Consultation Details - Cocoa and Chocolate Products (England) Regulations 2003

Council Directive 2000/36/EC, provides reserved sales names for cocoa and chocolate products, and lays down compositional standards and some additional labelling requirements for products marketed under those reserved sales names. The Directive replaces the existing 1973 Chocolate Directive, and must be implemented into national legislation by 3 August 2003. To this end, the Agency has produced the following documents, on which they invite comments.

The Cocoa and Chocolate Products (England) Regulations 2003: This draft Statutory Instrument (SI) implements Council Directive 2000/36/EC, providing for its enforcement, creating offences and providing penalties in respect of non-compliance with the new requirements. The SI will apply in England only (Scotland, Wales and Northern Ireland will be making their own separate, but similar, legislation).

The draft SI prescribes definitions and reserved descriptions for designated cocoa and chocolate products and restricts the use of these descriptors to the products within its scope. The SI also lays down certain specific labelling or marking requirements in addition to that of the Food Labelling Regulations 1996.

The draft SI takes up a number of optional provisions provided for in the Directive.
The SI will allow "family milk chocolate" to be described as "milk chocolate" when it is marketed in the UK, as provided for in Annex 1(4)(d) of the Directive.
The SI will allow the use of coconut oil for chocolate used in the manufacture of ice cream and similar frozen products, as provided for in Annex II of the Directive.

The new SI also now permits the use of vegetable fats in all chocolate up to a maximum of 5% in Member States of the European Union. These are, however, restricted to only those tropical fats listed in Schedule 2, and whose use must be accompanied by a conspicuous and clearly legible statement with the words "contains vegetable fats in addition to cocoa butter". Vegetable fats are no longer considered to be optional ingredients, and must be included as part of the calculations when meeting the minimum requirements for cocoa solids etc.

Guidance Notes: The guidance notes prepared by the FSA set out and attempt to clarify the requirements of the new Regulations. They aim to provide practical advice for businesses and enforcement bodies, with the aim of achieving consistent application and enforcement of the new provisions. It is important to note that the guidance notes are non-statutory, providing advice on best practice and should be read in conjunction with the relevant legislation. They should not be taken as an authoritative statement or interpretation of the law as only the courts have this power.

Use of the word chocolate

In addition the FSA are also seeking comments on the use of the word "chocolate" to describe products which have a chocolate flavour. Current provisions appear to be leading to some confusion as to whether the word "chocolate" in the description of a product refers to a chocolate flavour derived from cocoa powder (as allowed by Schedule 8 of the Food Labelling Regulations), or that derived from the presence of 'real' chocolate as an ingredient.

The problem has undoubtedly arisen as a result of changes in consumers' expectations; the current provisions originate from a time when most chocolate flavoured products, such as chocolate drinks, were flavoured only with cocoa powder. However the market is changing and tastes and expectations appear more discerning. As a result, a number of "chocolate products " currently on the market do now contain 'real' chocolate. It is therefore quite likely that purchasers may now assume that a "chocolate drink" or "chocolate spread" etc is made with real chocolate.

The FSA are seeking views therefore on how to resolve this confusion and assist consumers in differentiating products made with 'real' chocolate and those containing a chocolate flavour (cocoa powder).

On option would be to amend Schedule 8 of the FLR, removing any reference to chocolate flavour. The provisions relating to chocolate flavour would then be no different to the rules relating to flavours in general - i.e., a product described in such a way as to imply a chocolate flavour, would in effect be required to contain chocolate as an ingredient. A product deriving its chocolate flavour from cocoa powder alone would need to be described as "chocolate flavour x" or similar.

The FSA acknowledge that there would be a number of products which are traditionally described as "chocolate x" but which the consumer will understand contain no chocolate (e.g. chocolate cake). The FSA would want to allow such products to continue to be described as they are at present, where the descriptions of these products could be considered "customary names". The FSA may need to draw up an informal list of customary names for this purpose.

The FSA would be grateful for views on this proposal, or alternatively any suggestions for other ways in which to address this issue. It is not intended that any action will be taken on this issue as part of the current exercise to implement the new Directive; any proposals to amend the current requirements would be the subject of a further public consultation at a later date.

To go to main Foodlaw-Reading Index page, click here.