Hungary's draft legislation, which was filed on 19 May, states: “The purpose of the amendment is to introduce a labelling obligation for dual use food chain products."
"The manufacturer and the distributor shall label the food or feed placed on the market in Hungary with different ingredients or with a different ratio of ingredients than in countries outside Hungary, but with the same brand name and appearance, with a relevant distinctive warning.”
The practice of multinational companies selling branded products of a poorer quality in Eastern Europe (such as a lower fruit, vegetable or meat content or a higher salt, fat and sugar content) has been increasingly flagged by politicians such as the Czech Republic which tabled the issue at a Council meeting in 2016.
The language being used is also heating up. “This is unacceptable and insulting,” said Bulgarian Prime Minister Boyko Borissov last month as he called an extraordinary cabinet meeting on the subject. “Maybe this is a remnant of apartheid, for some, food should be of higher quality, and for others, in Eastern Europe, of lower quality.”
Bulgaria, which will take on the EU’s rotating presidency next year, has already indicated that dual quality foods will be a priority issue.
A spokesperson for the Commission confirmed it received the draft legislation, which was notified under a 2008 act on the official supervision of the food chain and not the Food Information to Consumers (FIC) regulation, and is currently studying it.
The Commission, and other member states, now have three months to comment on the draft; a technical mechanism is aimed at ensuring the smooth operation of the internal market and addressing potential issues before regulations are adopted.
According to food law expert and managing director of Hylobates Consulting, Hungary’s draft law is on shaky legal ground in several respects, and the first stumbling block will likely be article 34 of the EU’s Treaty. This guarantees the free circulation of goods within the single market.
The draft law is also difficult to enforce and discriminatory, he said.
“Basically, [the legislation means that] food producers from other member states are not free to distribute in Hungary certain products, unless they bear additional costs for labelling and use a potentially negative marketing.
“Moreover, Hungarian producers may produce an identical food product, in terms of ingredients, without any obligation to label the product with a relevant marking, even if it is nutritionally as bad. I can't see this as anything else than textbook discrimination.”
A sensitive issue
Bucchini added: "Unless the commissioner [for health and food safety], Vytenis Andriukaitis, is determined to unravel five decades of painstaking harmonisation on food labelling, he should say no to this and on the Italian draft legislation on the food production site [which requires manufacturers to state if a product is produced and packaged in Italy].”
Bucchini admits dual quality foods is “a sensitive issue for countries in Central Europe”, but he believes it is being addressed in the wrong manner. Nutritional scoring systems and transparency initiatives offer better avenues for action, he says.
Companies that have been implicated in selling products with poorer quality ingredients in the past include PepsiCo, Ferrero, Nestlé and Danone.
However, a Ferrero spokesperson told this publication: “We can confirm that Ferrero products sold in Eastern Europe do not have higher levels of salt, fat or sugar than the same products sold in Western Europe.”
“We declare all ingredients on our product labels, in line with local legislation, to ensure our consumers have the necessary information to be able to make informed purchasing decisions.
"We also guarantee that our product recipes are defined at a central level, by our Ferrero Group Central Quality Department; they are comparable both from the point of view of the composition and the preparation technology."
Nestlé: We're waiting for clarity
Meanwhile, a spokesperson for Nestle said it has noted the upcoming discussions on the issue of dual quality and is awaiting clarity on what approach the Commission will take.
“Many Nestlé factories in Eastern Europe manufacture products for Western European markets, and vice-versa,” the spokesperson added. “KitKat’s manufactured in Bulgaria are distributed all over Europe and we manufacture Nescafé soluble coffee at production facilities in Switzerland, Germany, France, the UK and Spain for sale across the continent.
Nestlé said all its products comply with its nutritional criteria and that the firm is committed to improving the nutritional profile of its products regardless of the region, for instance by removing modified starches or artificial emulsifiers and lowering the salt content.
However, a spokesperson for the company confirmed that products will not necessarily be reformulated in the same way in each country.
“Our approach is based on consumer perception and acceptance. This may vary across countries, exactly like cuisines styles and cultures. Different countries have different things in their kitchen cupboard.”