Heated discussions concerning the allocation of new GTINs due to the REGULATION (EU) No 1169/2011 have ensued!

The regulation on the provision of food information to consumers, coming into effect in December, poses various challenges. One of them is the procurement and maintenance of information that is subject to declaration. Another concerns the procedure when this information is being changed. In the following, I would like to comment on this currently hotly debated topic of change.

The problem, in brief

The unambiguous identification of an article is guaranteed via its GTIN. The article information is printed on the product label. At the store, the customer picks up the article and studies the label. If information changes, the label is adjusted. The customer can look at both articles at the store and compare the changes - even if they have an identical GTIN. No problem so far.

The regulation yet also refers explicitly to distance selling. Article 14 explains: "[...] mandatory food information [...] shall be available before the purchase is concluded and shall appear on the material supporting the distance selling [...]".

Here comes the problem: The unambiguous identification of the article takes place via its GTIN. If information concerning the article changes (for example if ingredients are changed), a new article with a new GTIN must be created so that both articles (with old and new ingredients list) are distinguishable.

Otherwise, the information of the article under the previous GTIN would change. Yet what isn't a problem in the store, does not work for the online shop. Here every distinguishable article requires its own, separate GTIN.

This evidently draws a rat-tail of consequences behind it:

An article with a new GTIN requires a new packaging hierarchy. New article variants have to be created in the master data systems, ordered, stored and shipped. An overview of this is offered in the "Position paper about the identification of products with different labeling at distance selling in the context of the Food Information Regulation (FIR)", published by GS1 Germany. It can be found on their website under http://www.gs1-germany.de/lebensmitteltransparenz/. It also details the perspective of a possible future solution called GTIN+X, namely the GTIN with additional variant identification (+X).

Due to such changes, there could be an inflation in the allocation of new GTINs. No wonder it is hotly debated under which circumstances a change is relevant for the allocation of a new GTIN if one looks at the necessary effort and time as well as the procedural consequences.

There are two points of view in this discussion:

a) Minimal changes of the foodstuff, as for example in the nutrition facts, do not require new GTIN, since foodstuff can not always contain exactly the specified nutritional value due to natural fluctuations and changes in production and storage.

This view can be supported by a manual of the EU: "GUIDANCE DOCUMENT FOR COMPETENT AUTHORITIES FOR THE CONTROL OF COMPLIANCE WITH EU LEGISLATION ON [ ... ] in relation to the establishment of tolerances for nutrition facts indicated on the label" (Source: http://ec.europa.eu/food/food/labellingnutrition/nutritionlabel/guidance_tolerances_december_2012.pdf). This manual, referring to the Food Information Regulation 1169/2011 and various directives, implies and explains the tolerances in the determination of nutrition facts. It also translates the otherwise ambiguous "minimal" into definable numbers. Already on its first page, the manual includes a notable restriction though: "IMPORTANT DISCLAIMER. This Document has no formal legal status and, in the event of a dispute, ultimate responsibility for the interpretation of the law lies with the Court of Justice of the European Union".

Which leads us to the alternative point of view in the discussion:

b) If the declarable information changes, the product has to be re-labeled according to the Food Information Regulation 1169/2011, namely get a new GTIN. (Source: http://www.gs1-germany.de/fileadmin/gs1/best_practices/GS1_LMIV_Kompaktes_Wissen.pdf). This approach avoids possible conflicts and points of attack concerning tolerances or the interpretation of the term "minimal change" by referring back to the description level.

Take the following example: A change of the nutritional value of "Sugar 8.5g" to "Sugar 8g" is within the tolerance of the nutrition facts - but since the text of the declarable specification itself changes, the article will be allocated a new GTIN.

It will be fascinating to watch which procedure will emerge from the discussion. This will certainly also depend on how the topic is treated by government agencies, consumer advocates and lawyers on behalf of competitors. Government agencies could consider version a) acceptable (the guidance document on tolerances may point that way). Meanwhile the procedure of version b) may be the safer way to go to fend of cost-intensive legal warnings.

We will follow the developments to come.

Another enthralling topic of the Food Information Regulation 1169/2011: "exceptions", such as for example in Annex V, point 19: "Food, including handcrafted food, directly supplied by the manufacturer of small quantities of products to the final consumer or to local retail establishments directly supplying the final consumer."

Here again the field is open for individual interpretation!