What’s in a label and the EU’s new laws

Lawyer cum sommelier Dominic Buckwell gets inspiration from the Institute of Masters of Wine webinar on Labelling rules and transparency, detailing a complex past and giving the lowdown on proposed new and potentially game-changing legislation.

Laws ensuring adequate packaging and labels for food and drink to protect consumers have existed since time immemorial. Weights and measures rules date from ancient Egypt and classical times. Augustus Ceasar rolled out legal standards when viticulture spread over the extent of the Roman Empire. Social problems related to alcohol from the 1700s led to fiscal control with excise taxes and licencing rules. The effects of phylloxera in the late 19th century brought about rules of origin leading to various forms of appellations. Mechanisation of agriculture in the 20th century favoured economies of scale in production, and the globalization of consumerism, eased by containerized shipping and reduced trade barriers, brought about an increased need for common standards in how wine is marketed and labelled. COVID-19 has accelerated trends towards needing traceability, and the consumers’ desire to know about origin in the search for more natural and healthy products.

The International Organisation of Vine and Wine (aka OIV – the ‘UN of wine’), founded in 1924, seeks to encourage government cooperation to harmonise rules and standards for wine, and forms the basis of the EU’s regulations for the marketing of wine. The World Wine Trade Group is another international organization founded by non-European countries, which encourages the mutual acceptance of each other’s marketing standards, so as to reduce barriers to trade and bring a different approach to the full alignment of rules.

Numerous requirements for wine packaging exist in this context: wine has always been traded from one part of the world to another, and is hence required to meet certain safety and transparency standards to help protect buyers and enable a safe and informed choice. The OIV publishes details of scientific processes used in winemaking, so these are available to those who want to know, but very much aimed at experts in the production rather than consumer side of wine business. While there are few trade secrets about the winemaking processes, there is very little consumer understanding about what goes beyond the fermentation of grapes.

The subject of wine labelling is complicated and rooted in history, politics and vested economic interests. There have been differences in the general approach between Old and New World wine cultures.  Countries like the US and Australia originally gave less significance to geographical indications, but have moved on from simply regarding them as hostile devices designed to protect old world appellations. Conversely, the Old World has come to accept, if not embrace, labelling by grape variety as useful for consumers. Both have learned from the other, while emulating each other’s wine styles to the point that distinguishing by blind tasting whether, for example, a Chardonnay or Syrah is from France or New Zealand, is not something many MWs would now stake their reputations on.

In this age of freely available data, concerns for sustainability and health pandemics, have governments and international institutions setting wine labelling standards rules kept pace with society and consumer expectations? It was 40 years ago when a British civil servant called Henry Brown first suggested to the OIV that wine labels should state the ingredients. Besides a requirement to indicate a wine’s %ABV and that it “may contain sulphites”, little else is required. It has taken until now for the OIV and EU to consult member states on a limited extension to mandatory labelling rules.

In his seminal work Gout de Vin (The Taste of Wine: the Art and Science of Wine Appreciation), Emile Peynaud wrote: ‘Wine reflects the culture of the people who produce it as well as the region (terroir) for it is not one of nature’s free gifts.’

Anthropologist Marcel Mauss regarded wine as a construct of society and its values – a Social Fact. Writing at a similar time, the legal theorist and US Supreme Court Judge Oliver Wendell-Holmes saw the law as a ‘magic mirror’ reflecting society. Holmes rejected the idea of natural law (espoused by several philosophers of the enlightenment) and the concept of inalienable rights of man. The laws of a society at any given point in time are based on what is expedient for the community concerned. The common thread between these three legal, anthropological and oenological theorists is about reflecting the needs of society.

In her article of 2nd January 2021 headed ‘Real progress on ingredient listing’ Jancis Robinson remarked: “those who produce wine have been rather out of sync with those who buy it’ adding (with a hint of dry sarcasm) that: ‘One has to admire the combined forces of the world’s wine trade for having managed to escape the exacting demands of ingredient labelling for so long”.

Robinson’s diagnosis is backed up by research evidencing that the consumers do read the back labels when deciding what to buy and demand more transparency, both as regards nutritional and health information. But research also suggests that giving consumers information on ingredients may put them off, especially as the role of unknown chemicals is not widely understood, making a product appear risky. This undermines the widely held image of wine as something healthy and pure.

EU Law change – end of immunity

The EU’s draft text proposing legal changes requires two new pieces of information for wine labels:

1) Energy (ie calorie) information per 100ml serving

This can be given by reference to standard tables: for any wine with given ABV, acid and sugar content, there will be a set measure so not every batch needs to be analysed; and

2) A list of ingredients (but not processes or no allergenic substances used up in production)

The ingredient list can be given on an ‘e-label’ which effectively means a link to a website.

The rule change will be implemented by amending article 119 of the main EU regulation on Agricultural Produce (1308/2013). Wine will no longer enjoy immunity from the regulation generally applicable to labelling and presentation of foods (1169/2011). Unusually, the current draft does not provide for grandfathering of products already on the market: at the end of the provisional amended article 119, para 3 (c) states:

Member States shall take measures to ensure that [wine products] which are not labelled in conformity with this Regulation are not placed on the market, or are withdrawn from it if already placed on the market” (my emphasis).

In many cultures, especially across Europe, wine holds a special place in its history, religion, trade and political interdependence. The role of wine in the holy sacrament, its rejection by Islam and place in trade agreements from the Treaty of Methuen (1703) to the Treaty of Rome illustrate its significance as a commodity in international trade. It is perhaps no surprise therefore that a debate about wine labelling is a politicised matter.

Since WWII, the EU has concerned itself with the protection of its agricultural industries, and wider economic interests, creating a large free single consumer market. Wine sits in the intersection of agricultural and consumer interests, wherein lies the tension between protecting the special esteemed place of wine and the vigneron, and the general requirements for regulation of consumer goods in a large single free market.

The EEC Regulations of the 1960s and 1970s (specifically 24/162 and 337/79) were aimed at addressing the problems of oversupply, to limit production and protect price – neither of which were allowed post the Maastricht treaty of 1992. However, rooted in the protectionism policies of the 60s & 70s is also the control of wine oenological practices and labelling requirements. Treating wine so differently from other products in the EU is outdated, and seems to ignore the significance of key changes in society:

  • The internet: accessibility of information need not be confined to the physical size of a label;
  • Sustainability: the need to reduce greenhouse emissions to mitigate climate change; and
  • Longer life expectancy: individuals desiring quality of life and the cost to society of ill-health, arguably amplified in the wake of Covid-19.

EU law fundamentally recognises that a fair, functioning, and free market in consumable goods requires transparency of information (a) as to safety and (b) characteristics of the product:

“Detailed labelling, in particular giving the exact nature and characteristics of the product to enable the consumer to make choices in full knowledge of the facts, is the most appropriate since it creates fewest obstacles to free trade.”

Regulation 79/112/EEC of 18 Dec 1978 defines characteristics of a foodstuff as including the:


Transparency ensures a level playing field, protects consumers and enables them to make an informed choice. Wine however has swerved these EU rules, perhaps because of a combination of factors: its special place in European history and culture, the image as a natural and healthy product, and a protectionist approach by the EEC since the 1960s to address failures in the wine market and support its agricultural industries.

OIV recommendations

The draft definition of ingredients currently with the OIV would ensure that the disclosure of additives and processes will not be required. Since it was suggested that OIV recommends publication of ingredients, their technical experts have debated the definition of ingredients versus additives and processing aids. Being hung up on this detail has slowed up any form of agreement on what is meant by disclosure of ingredients, suiting the alcohol lobby’s position to resist disclosure.

The image of wine being an entirely natural product has also helped to ensure its special status in EU law outside general food & drink rules: the OIV defines wine simply as being fermented grapes / fresh grape must. Untampered, unadulterated, unprocessed, unrefined, 100% natural grapes as the ingredient, and perhaps some sulphite to prevent spoilage, and maybe a little sugar to help alcohol level and/or refermentation to become naturally sparkling from its own CO2. While wine plays off the romantic notion it is a natural product containing only fermented grapes, the exemption under 2011 EU rules is much wider applying to all alcohol sector products of 1.2% ABV or more.

The OIV’s Code lists 170 permitted oenological treatments and practices for wine, including inoculation with yeast and the addition of sulphur. While it is possible to produce wine from only fresh grapes and fermented by naturally occurring yeasts without treatments, must adjustments, fining agents or preservative measures, the vast majority of wines undergo a great many of these 170 permitted processes that consumers don’t know about and need not be disclosed. Benjamin Lewin MW wrote in the World of Fine Wine in 2013:

“The wine industry has successfully perpetuated an image of an artisan product, better related to Pissarro’s peasants sowing seeds in the fields, than the industrial refineries in which much wine is made.”

Turning to the recent Brexit deal, the Trade in Wine Annex on pages 515-522 stipulates as much about what is not to be required under labelling laws of wine in the territory of the importing county. Article 4 (5) on page 516 explicitly directs that rules shall not make it mandatory to require the display on labels of allergens used in production which are not present in the final product. This measure effectively prohibits the UK (or the EU) from making laws to require transparency as to certain processing aids involving animal products, the use of which would be offensive to vegans or others concerned with the unsustainable impact of producing such aids: for example, the disclosure of egg white, milk proteins, fish and other animal products used in treatments but not counting as ingredients cannot be required.

Health Warnings

Disclosure of a products content and its effect on individual’s health is a hot topic in the 21st century.

The Alcohol Industry stands accused of being:

engaged in the extensive misrepresentation of evidence about the alcohol-related risk of cancer. These activities have parallels with those of the tobacco industry.”

Having seen the demise of tobacco industry with associated class actions and packaging rules, some are concerned that depending on the approach taken by the alcohol lobby, its products could go the same way. A 2004 report to the Canadian Government on “Integrating Food Policy with Growing Health and Wellness Concerns: An Analytical Literature Review of the Issues Affecting Government, Industry, and Civil Society” explained:

“Economic theory suggests that government intervention into the public realm is justified in the presence of market failures. Such failures include imperfect market competition, high external costs or benefits to third parties or society in general, imperfect information, and the provision of public goods. All of these failures are evident to some extent in the market for health and wellness. In regards to food policy and health, the single most important failure is probably the lack of full information, especially on the part of consumers. The high societal costs of diseases related to food consumption are another important failure that would not be properly accounted for in the absence of interventions. In addition to the economists’ traditional justifications for regulation, there are other “special” roles assumed by our government that are relevant here. The protection of children, the regulation of broadcast media, and a general interest in individual health beyond the costs imposed on society are all part of the debate regarding appropriate food and health policies.”

There is nothing in the EU pipeline about the disclosure of the treatments used in winemaking processes (unless specifically related to allergens), or additives that are absorbed (unless potentially allergic). Nor are there any proposals to direct information on the potential impact on the health of the consumer. In the US however, the Alcohol and Tobacco Trade Bureau (TTB) already requires the Surgeon General’s health warning on wine labels about risks to pregnancy and driving. The TTB is now being lobbied by the Consumer Federation of America and other pressure groups to augment the mandatory health warning to require also explicit reference to the risks of cancer.

In 2010, noting reports that diseases attributable alcohol were causing 2.5 million annual deaths, the World Health Organisation adopted a Global Strategy to Reduce Harmful Effects of Alcohol. In Feb 2020, a month before declaring the COVID-19 pandemic, WHO reported insufficient progress and pace of change with alcohol continuing to cause 3 million deaths every year (ie more than the cumulative effect of COVID-19 to date) but that it is the leading risk factor for premature mortality among younger age groups (15-49 year olds) accounting for 10 percent of all deaths in this age group. A new action plan to 2030 is being proposed next year to crank up the pressure on governments to address the issue.

The World Health Organization’s Global Strategy has 10 areas for policy action, including one on marketing of alcoholic beverages (area 6). For this area, the policy options and interventions include:

“Setting regulatory or coregulatory frameworks, preferably with a legislative basis, and supported when appropriate by self‐regulatory measures, for alcohol marketing by:… regulating the content and the volume of marketing.”

South Africa has seen a positive impact on health-related problems during the Pandemic correlating with periods of restriction on the sale of alcohol, and is already considering extending tighter rules. Meanwhile research into millennials’ attitudes suggests a lack of concern about the long-term consequences of alcohol abuse, and if governments wish to influence choices, which in the US would go beyond highlighting the effects on driving and pregnancy.

A battle royal is brewing between the health lobby and those who consider wine a natural product that’s healthy in moderation, with incremental restrictions as an assault on European culture and the way of life. There are counter arguments advocating balance to allow the modest enjoyment of life’s pleasures, as well as a movement to try to keep wine out of this battle. However, making a special case for wine within the alcohol sector seems an unlikely approach for regulators, as even the EU’s proposals treat wine sector products with alcohol in general. It would also be against the trend that “Most consumers drink and purchase alcoholic beverages across multiple categories, rather than focusing the majority of their consumption on a single category, such as beer or wine consumers”.

The approach of defining wine as natural and unadulterated has also hampered the movement to develop low and no alcohol products, as they are not currently allowed to be called ‘wine’. This is also beginning to be addressed by the OIV and EU, so the institutional approach is to develop the market for wines that have less potential to bring harmful effects of alcohol, rather than a carve out dividing the alcohol sector.

Changes in labelling rules in the EU are likely to come into effect in 2022-2023. It remains to be seen if the UK policy makers in the Department of Agriculture follow the EU lead and/or OIV recommendations which are likely to coincide. Anyone exporting to EU countries will need to do so.