After years of wrangling, the new regulation on flavourings was finally adopted by EU Agriculture and Fisheries ministers on November 17. The new rules are part of a wider overhaul of legislation known as the FIAP (Food Improvement Agent Package), which covers additives, enzymes and cultures.
The FIAP regulations will be published in the Official Journal of the European Union - probably in January 2009 - and will then apply across all member states 20 days later. A two-year transition period will follow, with most of the rules expected to come into full force in January 2011.
The exception for flavours is Article 10. This says that, of the flavours that need to be evaluated for safety, only those on an approved Community list currently being drawn up by the European Food Safety Authority (EFSA) can be placed on the market. This won't come into force until mid-2012.
"The regulation will come in step-wise with a number of transitional measures, but it won't bite fully on the UK industry till the two years are up," says James Ridsdale of the Food Standards Agency (FSA). "Some bits and pieces will come in beforehand and the FSA will be producing guidance as and when."
The main changes are in the definitions of flavour categories. The old categories of 'nature identical' and 'artificial' flavouring substances have gone. Flavourings are now classified as 'flavouring substances', 'natural flavouring substances', 'flavouring preparations', 'thermal process flavourings', 'smoke flavourings', 'flavour precursors' and 'other flavourings'. The regulation also covers 'food ingredients with flavouring properties', which are used to impart flavour but also add 'undesirable substances' to the food.
Predictably, the industry was critical of a number of the changes that were proposed at the start of negotiations. Some of these contentious proposals have since been shelved, while others are still causing concern.
For example, 'natural flavouring substances' now have to contain 95% of the substance they are supposed to taste of, such as strawberry. Many natural flavours contain closer to 90% of the named substance, so that will present technical challenges. But there was also a suggestion that the new rules might insist that the remaining 5% must not taste of the named flavour, which industry viewed as a pointless restriction on its ability to formulate products. In the end however, that hasn't happened.
The loss of the term 'artificial' has also caused some anxiety, since so much marketing cachet can be gleaned by using 'free from artificial flavours' on packaging. However, Ridsdale says that such labelling will still be permitted, "as long as it does not mislead consumers". The FSA is currently drafting guidance to clarify the labelling situation.
One change that is likely to have a significant practical impact is the loss of nature identicals as a separate category. These synthetic flavours are chemically identical to those found in the foods they mimic. In labelling terms, nature identicals gave manufacturers a middle way between natural and artificial flavours, but now they are simply lumped together with other compounds as 'flavouring substances'.
This, combined with the current obsession with all things natural, could be a problem, says Stephen Pearce of Omega Ingredients. "All this will do is put the prices up. Manufacturers can now only put flavours or natural flavours on the label and natural flavours have to be 95% from the named substance.
"It will also create some very specific problems. For example, vegetarians can no longer have natural lamb flavour in a product because it will have to be made from sheep. Vegetarians will have to have flavours that don't comply with the definition of natural."
"This is supposed to be driven by consumers, but they haven't been consulted," says David Baines of Baines Food Consultancy, and current president of the British Society of Flavourists. "What they're asking us to do is extract the flavour from a flock of sheep and throw the meat away. Do they really want us to kill a herd of animals just to make flavours?"
Worse still, Baines is convinced that the new legislation may actually place consumers at increased risk. He is especially critical in the two key areas of smoke flavourings and thermal process flavourings.
Under the new regulation, smoke flavourings can only be produced by the fractionation and purification of condensed smoke. "I know which chemicals create the smoke flavour and they're harmless and non-carcinogenic," says Baines. "But the people who do the labels don't want them. They want smoke flavour and now you can only call something smoke flavour if it's actually extracted from smoke."
"Smoking naturally puts genotoxic carcinogens into food, but it's another step to take the smoke and make a liquid of it. I don't think it's morally justifiable. It should only be used to replace traditional smoking, but it could end up right through a lot of products. Potato crisps haven't been traditionally smoked, for instance," he says.
"There is a particular problem with smoke flavours where the regulations will insist we give carcinogenic products to consumers, whereas we currently use very effective non-carcinogenic substitutes," agrees Pearce.
The newly categorised thermal process flavours are a product of the Maillard reaction, which is a reaction between a nitrogen-containing compound and a reducing sugar. It is this reaction that is largely responsible for the flavour of bread crusts and browned meat.
"Thermal process flavours are my speciality and I'm very careful to make thermal process flavours that do not contain mutagens and carcinogens. I do it by choosing the right precursors, but if you start to use the meat itself as the legislation requires you start with a less controlled blend of precursors that could create mutagens and carcinogens," argues Baines. "Safety should be paramount and this new legislation flies in the face of safety."
Industry concerns remain
There is also consternation over some of the technical fine points in the regulation. Annex V defines the specific process conditions required to make thermal process flavours, namely heating the ingredients for up to 15 minutes at 180°C, with a doubling of the time allowed for every 10 degree Celsius drop in temperature, up to a maximum of 12 hours. This can be interpreted to mean that the minimum permissible temperature for making thermal process flavours is 125°C.
"Most thermal process flavours can be made at below 125°C," says Baines. "This has left a question mark over them because of the stupid wording. We pointed it out during the negotiation process and other wording was proposed, but we were ignored."
There seems little doubt that the biggest concerns are on the savoury side. "From the fruit side the industry is pretty well happy, but it's one of the worst pieces of legislation ever for savoury flavours," says Baines.
Some impact will be felt across the board, however, such as the combination of growing consumer demand for natural products and the new definition of natural flavourings. "Naturals are expensive and it will push up costs," says Pearce. But he stresses that it will be consumers who will end up paying, not the flavour industry. "We can supply the ingredients and solutions that companies need so we hope we can be even more successful at what we do. We've got the innovations, but they don't come cheap."
In fact, he believes that the global economic downturn and rising flavour prices may spark a shift back to synthetic flavours: "This could force the situation full circle, with everyone seeing again why nature identical products are so good. They're safe, effective and cheap. You don't have to worry about the Spanish apricot crop or the Polish blackcurrants."
Any number of events - from bad weather to the falling bee population - can make the price of natural products extremely volatile. For example, apple concentrate looks set to shoot up in price following a Polish pickers strike that left the crop on the trees for longer, thereby reducing its acidity.
On a more positive note, Ridsdale says EFSA is making good progress towards working its way through the data for the 2,800 substances that industry wants to see on the EU's positive list of permitted flavours.
After 2012, only flavours on the list can be used in products throughout the EU. The flavours are grouped into 35 families of chemically similar materials, and each group requires testing and validation. "EFSA is now through the vast majority," says Ridsdale. "For the remainder, they're mostly waiting for safety data that has not been provided yet by industry. These tests are quite difficult and time consuming, so it's very much a team effort between the industry and regulators." FM
Baines Food Consultancy 01454 418104
EFSA 00 39 0521 036111
Food Standards Agency 020 7276 8829
Omega Ingredients 01473 836400