Flavourings currently fall under directive 88/388. However the regulatory situation is set to change next year, with the anticipated adoption of FIAP (Food Improvement Agent Package), Joy Hardinge of AJH Consulting told attendees at the SAFC symposium in Grasse, France, last week.
Whereas directive 88/388 covered flavourings, under FIAP (which also relates to additives, enzymes, and the common authorisation procedure) the scope is extended to cover "certain food ingredients with flavouring properties".
Directive 88/388 covers flavouring preparations, process flavourings, smoke flavourings, and three categories of flavouring substances - natural, nature identical (NI) and artificial.
But with the proposed regulation the scope is set to change.
Firstly, it looks to replace process flavours with 'thermal process flavours' - that is flavourings obtained after a heat treatment from a mixture of ingredients that do not necessarily have flavouring properties themselves. One ingredient must contain an amino nitrogen, and one be a reducing sugar.
It also does away with the NI and artificial categories of flavouring substances - a big change, since the claim that a food "contains no artificial flavourings" currently holds much marketing sway.
"Industry has lobbied hard to retain NI and artificial, but with little success," said Hardinge.
Finally, the new proposal adds two new categories: precursor flavourings, such as an unheated blend of xylose and cystene, for example, which is heated and reacts inside a food; and a catch all category called 'other flavourings'.
Article seven allows that flavouring preparations, thermal process flavourings and flavour precursors do not require evaluation or approval, provided they are from food sources are produced within the set guidelines. Food ingredients with flavouring properties also do not need evaluation or approval.
Here, however, much hinges on the definition of food. The regulation does not give a definition, as such, but recital 14 states that "material for which there is significant evidence of flavour use is considered as food even if the source has never been used for food and does not need to be evaluated".
By this logic, rose wood and strawberry leaves, for instance, would not need to be evaluated or approved.
Most things are foods, but the advise would be to stay well within the boundaries, otherwise there would be a need to go through pre-market approval, said Hardinge - a process that can be very lengthy.
Another big challenge is in articles 12 to 14 on business-to-business labelling of flavourings, which contain some sections that are unclear and open to interpretation.
In particular, the definition of natural is a point of contention. The term "natural" can only be used in the sales description of the flavouring is made up of flavouring preparations and/or natural flavouring substances only. This means that process flavours and smoke flavourings are never natural.
At present, it states that a natural flavouring must be 100 per cent natural. The flavour part must be at least 90 per cent derived from the food it is intended to taste of, while the other 10 per cent can come from another food source.
The Parliament has proposed that the percentages be changed to 95-5 - an option for which the Commission has signalled support.
The Council, meanwhile, is open to 90-10, but with the proviso that the 10 per cent cannot taste of what the 90 per cent is.
This, Hardinge said, would be "absolutely ludicrous" and "open to chaos".
For her, the worst possible scenario would be 95-5, but with the 5 per cent not tasting of the 95.
Some people in the industry have a different view, however. They say that 90-10 with no taste would not be so bad, since it is so subjective that it would be impossible to enforce it.
It is hoped that a decision on the percentages will be reached at the Council meeting on December 6. After that, it will revert to the Parliament.
Articles 12 to 14 also state that: "Natural X flavouring with other natural flavourings has to contain enough X to be easily recognisable."
The problem with this is that "easily recognisable" is very much open to interpretation.
Finally, the phrase natural flavouring can only be used if the flavouring compounded is derived from different sources, and where a reference to the source materials would not reflect their flavour or taste - for example, BBQ flavouring.
"The argument is that you don't grind up BBQs and put them in a flavour," said Hardinge. "But you would expect to grind up a raspberry".
Another big difficulty is in articles 16 and 17, which require business operators to report to the Commission the annual amounts of flavouring substances added to foods in the EU, and the use levels for each food category.
It also requires Member States to monitor the consumption and use of both substances on the community lists and in Annex III.
This, said Hardinge, is impossible since companies purchasing flavourings do not know how exactly they are made, and the flavour firm, in turn, does not know how exactly their products are used in end products.
She is optimistic that this will be changed, most likely so as to allow the Commission to ask for more details in case of any problem.
FIAP is a regulation rather than directive. This means that it automatically becomes law across the bloc, thus preventing differences between member states.
A directive, on the other hand, only becomes law when a member state brings it into its own legislation - and they may take two or three years to do so if they are not keen on it.
This means that there are set to be some big changes in the food regulation framework over the next three years. At present the new regulation is being discussed in the European Council and Parliament, and it is expected that it will be adopted in mid 2008.
With two years for full enactment, the new regulation would then fully apply by mid-2010.