Yet another shop has opened where all the food (and non-food) products are being sold without packaging. This time in Berlin. Following suit from ‘Unpackaged’ in London (which has since shut), neighbourhood shop ‘in.gredients’ in Austin, Texas (US), grocer’s ‘Luzners’ in Vienna, and ‘Robuust: The Zero Waste Shop’ in Antwerp, Berlin supermarket ‘Original Unverpackt’ recently opened its doors (after a crowd-funding campaign).

These shops sell vegetables, fruit and various other foods (such as coffee, tea, fresh fruit juices, dairy products, sweets, nuts, grains and spices) as unpackaged, loose goods (in bulk). The difference with self-service ‘pick ‘n mix’ stands at drug stores and sweets shops is that the consumer brings (or buys at the shop) a container, bottle or other (sustainable) packaging material to carry the items.

No packaging, with new labelling requirements on the way
The underlying idea behind offering various products (such as food) without packaging, i.e. reducing the amount of packaging and allowing consumers to decide the exact quantity they buy, appeals to many (though there are also critics who question how sustainable this whole set-up actually is). Perhaps a ‘packaging-free’ shop will open in the Netherlands soon as well, following on the shops abroad mentioned above. On the other hand, we are on the eve of new labelling requirements for food. Do such requirements not stand in the way of offering food unpackaged?

Regulation 1169/2011 on the provision of food information to consumers (hereafter: the Food Information for Consumers Regulation) takes effect on 13 December 2014 in the Netherlands. With the Food Information for Consumers Regulation in mind, the Dutch legislator has adopted a new Food Information (Commodities Act) Decree (hereafter: the Commodities Act Decree). Most of the provisions of this decree also take effect as of 13 December 2014.

The Regulation applies to ‘food businesses’ like the shops mentioned above: the Food Information for Consumers Regulation applies to all foods supplied to (or intended for) the ‘end user’ (the consumer, therefore) by such shops. It is relevant that different labelling requirements apply for food that is not pre-packaged, as opposed to pre-packaged foods.

Labelling requirements for food that is not pre-packaged
The Food Information for Consumers Regulation makes an important distinction between pre-packaged food and food that is not pre-packaged. It follows from article 2 (2) opening lines and (e) that an important difference between ‘pre-packaged’ and ‘not pre-packaged’ lies in the possibility of changing the contents without opening or compromising the packaging material. It will surely not surprise anyone that the ‘shops without packaging’ work with foods that are not pre-packaged.

For foods that are not pre-packaged, only the following information needs to be reported:
1. substances and/or products that could cause allergies or intolerances.

This refers exclusively to allergens incorporated in the product. These must be actively reported (it is not enough to wait for questions from the consumer on this, therefore). Possible cross-contaminations do not need to be reported (but may be mentioned voluntarily, of course), also see the article about a KLM passenger who went into anaphylactic shock).

In appendix 2 the Regulation identifies various substances and/or products that could cause allergies or intolerances.

None of the other requirements that the Regulation prescribes apply for foods that are not pre-packaged. There are no fewer than 15 appendices to the Regulation citing requirements for what must be reported on the labels of pre-packaged foods. These labels must, for instance, state: the name of the food, its ingredients (some exceptions apply: certain ingredients do not need to be mentioned), whether technical consumables listed in appendix 2 to the Regulation are used and in what quantity, the net quantity of the food, the minimum shelf-life or ‘consume by’ date, whether special instructions for storage and/or use apply, the (trade) name and address of the operator of the food business, in some cases the country of origin or place of origin, instructions for use if necessary, the alcohol percentage and nutritional value of the product. None of these rules apply for foods that are not pre-packaged, therefore.

2. the product name.

This is a supplementary requirement imposed by the Dutch legislator which is included in section 8 of the Commodities Act Decree.

The Food Information for Consumers Regulation stipulates that food information may not be misleading and must be accurate, clear and easy for the consumer to understand. The Dutch regulations (section 3 of the Commodities Act Decree) add that the information in the Netherlands must at least be provided in Dutch. For guidelines, also see the manual prepared by the Netherlands Food and Consumer Product Safety Authority (NVWA) in cooperation with the Dutch Food Retail Association (CBL) and the Dutch Food Industry Federation (FNLI).

The question of course is how information on foods that are not pre-packaged must be reported (for pre-packaged foods, see the article ‘Presentation of food information’). The information on allergens and intolerances must be provided in writing unless the Member States have taken specific national measures (see the answer to question 2.5.2 from the Questions and Answers published by the European Commission). Other means of communication that the European Commission cites for the provision of food information, such as ‘other accompanying material or other means, including modern technological aids or verbal communication (i.e. verifiable oral information)’ are not sufficient if there are no national regulations on this point.

At the shops concerned here, allergen information can be reported on the object in or on which the food is located or on a sign or card above that object. The information will therefore have to be indicated in writing on the silos and self-serve bins used at ‘Robuust: The Zero Waste Shop’ and the ‘bulk bins (spender systems)’ used at ‘Original Unverpackt’. This applies similarly for (other) traditional businesses (for instance the pastries in the shop window of the patisserie). An information flap can also be affixed to the shop window or display.

The supplementary Dutch requirement is less strict as far as the product name is concerned. It is not required that this be reported in writing: it is also permitted to indicate what food is involved in some other clear way, in the immediate environs of the food. In this last case, a product book, pamphlet or even a ‘speaking information pillar’ could provide the information, according to the Explanatory Memorandum to the Commodities Act Decree.

The EU’s Food Information for Consumers Regulation and the Commodities Act Decree in the Netherlands do not stand in the way of shops offering foods for sale without packaging. Practical solutions can be thought up for how these kinds of shops (and other traditional businesses where foods are offered without packaging) can report product names and allergen information. These solutions are usually already being applied.

The labelling requirements for unpackaged foods are not as strict as those for packaged and pre-packaged foods. If these kinds of shops do not voluntarily satisfy the labelling requirements that apply for packaged and pre-packaged foods, the customers of these shops will be less informed about the properties of the foods to be purchased there than in a shop where foods are indeed sold in packaging. This may not only be at odds with the type of consumer (a person who frequents an ‘unpackaged supermarket’ will do so deliberately and after consideration, even though on the other hand he is being given less assistance in making an informed decision on foods he may want to consume), but also with the reasoning of the Food Information for Consumers Regulation (a high level of consumer protection).

Finally, shopping at ‘unpackaged supermarkets’ may also involve other (increased) risks. There is good reason why the website of the Antwerp shop ‘Robuust: The Zero Waste Shop’ states: ‘We ask customers to clean their own containers properly before refilling. We hope you will understand when we say that we cannot be held responsible for any form of contamination once the customer has put the food into his own containers.’

By Mascha Timpert