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BARRIERS TO ENTRY OF WINE INTO LOCAL MARKETS AND HOW TO DEAL WITH THEM Europe (Laisser-Passez A 38)
BARRIERS TO ENTRY OF WINE INTO LOCAL MARKETS AND HOW TO DEAL WITH THEM
Europe
(Laisser-Passez A 38)
The European Union: 1 market, 1 law
The European Union: 27 member states, 27 markets, 27 laws
European Legal Frame: General requirements
Wine that is brought into the European Union must be marketable, meaning it must be
- harmless for the health of the consumer
= free of harmful substance or forbidden additives (e.g. pesticides, glycol, liquid sugar etc)
- suitable for consumption
- comply with the relevant European regulations
In detail, there are many several different relevant regulations:
European Legal Frame: Council Regulation (EC) No 479/2008 Recital (5) – goals - increasing the competitiveness of the European market in wine - strengthening the repuation of Community´s wine producers as best in the world - recovering old markets and winning new ones in the EU and worldwide - creating a wine regime that operates through clear, simple and effective rules and
that preserves the best traditions of EU wine production.
Recital (25) In order to meet the international standards in this field, the Commission should as a
general rule base itself on the oenological practices recommended by the International Organisation of Vine and Wine (OIV).
Recital (26) Coupage of a wine originating in a third country with a Community wine and coupage
between wines originating in third countries should continue to be prohibited in the Community. Similarly, certain types of grape must, grape juice and fresh grapes originating in third countries should not be turned into wine or added to wine in the territory of the Community.
European Legal Frame: Council Regulation (EC) No 479/2008
Recital (42) Save as otherwise provided, labelling rules in the wine sector should be complementary
to those laid down in the Directive 2000/13/EC of the European Parliament and of the Council of 20 March 2000 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs, which apply horizontally.
Recital (45) The creation of a single Community market involves the introduction of a trading
system at the external borders of the Community. This should include import duties and should, in principle, stabilise the Community market. The trading system should be based on the Community's international obligations, in particular those flowing from the WTO-agreements.
Recital (51) Products imported from third countries should be subject to the Community rules on
product categories, labelling and designations of origin and geographical indications. They should be accompanied by an analysis report.
European Legal Frame:
Regulation No 479/2008, rules the following issues:
- Support measures
- Regulatory measures
- Trade with Third Countries
- Production Potential
In detail, regulation No 479/2008 is implemented by the Commission Regulation (EC) No 555/2008
In addition, rules regarding foodstuffs are fully applicable.
European Legal Frame: Commission Regulation (EC) No 555/2008
No import license is required for the European consignee, but certificate and analysis provided by the producer
certificate and analysis shall form a single document, Art. 40 Reg (EC) 555/2008 ”certificate“ part shall be made out by a body of the country of origin “analysis report“ part shall be made out by an official laboratory regognised by the country of
origin
The samples for the certificate VI 1 and VI 2 are provided in the print material as well as addresses of the relevant Brazilian bodies and laboratories
Art 44 Reg (EC) 555/2008 rules in detail, how the forms have to be handled – most important para 4: Both the original and the copy shall accompany the product. V I 1 and V I 2 forms must be
completed either in typescript or by hand, or by equivalent technical means recognised by an official body. Handwritten forms shall be completed in ink and in capital letters. No erasures or overwriting shall be permitted. Any alterations shall be made by crossing out the incorrect particulars and, where appropriate, adding those required. Any change made in this way must be approved by its author and stamped, as the case may be, by the official agency, the laboratory or the customs authorities.
European Legal Frame: VI 1 & VI 2 Forms
Annex XI goes even more into details:
Printing size
The forms are to be printed in one of the official Community languages; in the case of VI 2 forms (for partial delivery), the language of the form is to be designated by the competent authorities of the Member State where the form is to be stamped.
The forms are to be completed in the language in which they are printed. - Each form is to bear a serial number allocated
in the case of VI 1 forms, by the official agency signing the ‘certificate’ part
in the case of VI 2 forms, by the customs office stamping them
Exporter – full name and address
Consignee in the EU – full name and address
European Legal Frame: VI 1 & VI 2 Forms
Means of transport and transport details:
Only refer to transport used for delivery to EC port of entry and specify mode of transport
Description of the imported product
Sale designation (e.g. as appears on label, such as name of producer and viticultural area; brandname; etc.)
Name of the country of origin (e.g. “Brazil”)
Name of the geographical indication, provided the wine qualifies for such a geographical indication
Actual alcohol strength by volume
Colour of the product (state “red”, ”rose”, “pink” or “white” only)
Combined Nomenclature code.
European Legal Frame: Analysis Art. 41 Reg (EC) No 555/2008 – Contents of Analysis Report
in the case of wines and grape must in fermentation:
the total alcoholic strength by volume the actual alcoholic strength by volume
in the case of grape must and grape juice, the density
in the case of wines, grape must and grape juice:
the total dry extract the total acidity the volatile acid content the citric acid content the total sulphur dioxide content the presence of varieties obtained from interspecific crossings (direct producer
hybrids or other varieties not belonging to the Vitis vinifera species)
European Legal Frame: Exemptions
Art. 42 Reg (EC) No 555/2008 – Exemptions
No certificate or analysis report need be presented for products originating in and exported from third countries in labelled containers of not more than five litres fitted with a non-reusable closing device where the total quantity transported, whether or not made up of separate consignments, does not exceed 100 litres.
Private purposes
European Legal Frame: Exemptions
Simplified procedure for
Australia
Switzerland
US
European Legal Frame: Custom Duties & Taxes Customs Duties depend on the sort of wine, the amount of alcohol – and origin „TARIC-information“ / CN Codes Wine starts with 2204, followed by more numbers e.g. 2204 2998 = wine not produced in the Community, in containers holding > 2 l (other than sparkling wine, semi-sparkling
wine, white wine and varietal wines) 2204 2998 11 = made from fresh grapes with an actual content of 13% by volume of alcohol or less Brazil qualifies under ERGA OMNES (except Switzerland and US): Customs Duty € 9,90 / hl
Importation VAT – differs in all member states (19% in Germany)
Consumption Tax – different rules on consumption tax for wine in the EU
No consumption tax is required in Austria, Bulgaria, Cyprus (Greek part), Czech Republic, Germany, Greece, Hungary, Italy, Luxemburg, Malta,
Portugal, Romania, Slovakia, Slovenia, Spain
Consumption tax is required in Belgium, Denmark, Estonia, Finland, France, Great Britain, Ireland, Latvia, Lithuania, Netherlands, Poland, Sweden
European Legal Frame: Labelling Compulsory content:
- name under which the product is sold, containing the term „wine“ - for wines with a protected designation of origin or geographical indication
the term ‘protected designation of origin’ or ‘protected geographical indication’ and the name of the protected designation of origin or geographical indication
- indication of provenance - filling capacity - strength of alcohol by volume - batch number - name and seat of the filler / in case of containers > 60 l name and seat of the sender - name of importer / in case the wine is bottled in the EU, name of bottler - in the case of sparkling wine, aerated sparkling wine, quality sparkling wine or
quality aromatic sparkling wine, an indication of the sugar content
- Indication of Allergens
European Legal Frame: Labelling - Allergens
Commission Implementing Regulation (EU) No 579/2012 extents the obligation to indicate allergens on the wine labels
Besides Sulphur Dioxide, now Egg Protein and Milk Protein shall be indicated if used during the production process
Applicable for wines that are made completely or partially from grapes harvested in 2012 or later and labelled after 30 June 2012
In case wine made from grapes harvested earlier fulfills the actual requirements (e.g. use of egg protein during the production process), it is permitted to use the new allergen indications also
Use of fish-gelatine (e.g. Isinglass) for wine (and beer) is set free, no indication necessary
European Legal Frame: Labelling - Allergens
Indication can be made verbally only or verbally in connection with the pictograms provided in Reg No 579/2012
The pictograms may be used in grey scale or in black & white
The terms to be used for the indication are provided in Reg No 579/2012 in all official languages of the EU (list provided in printed materials)
European Legal Frame: Labelling - Allergens
The language used for the indication is authorized by the Member States
Allergen Indication is subject to the national legislation. The European legal requirement is “easy to understand”, but it is fully in the discretion of the Member States, what they accept as “easy to understand”
If there is more than one language is accepted, at least one of them must be used.
National Regulation is not consistent! Examples:
Finland accepts Finnish and Swedish, Swedish can be replaced by Danish or Norwegian. Sweden only accepts Swedish, Denmark only accepts Danish. None of them accepts English, even though most Scandinavian consumers are fluent in English
France accepts only French for milk and milk-based products, eggs and egg-based products; for sulfites, French and/or English is ok. Using the pictograms, though, France accepts French and/or English and/or any other EU language
Germany only accepts German, with or without use of the pictograms
European Legal Frame: Labelling - Allergens
All questions regarding the allergen indication are to be put to the Member States
„Contact Points“ are established
List of accepted languages and Contact Points is provided in printed materials
European Legal Frame: Labelling – more details
Optional Content:
- the vintage year
- the name of one or more wine grape varieties
- sugar content (if not compulsory)
- the Community symbol indicating the protected designation of origin or geographical indication, in case the wine is bearing such indication registered for the Community
- terms referring to certain production methods
- for wines bearing a protected designation of origin or geographical indication the name of another geographical unit that is smaller or larger than the area underlying the designation of origin or geographical indication
- Warnings
- Other claims and information: yes, if true and not misleading – or else prohibited (e.g. according to foodstuff law!)
EU Alcohol Policy Warnings
- currently, there is no European legal requirement for warnings regarding the harm of unreasonable alcohol consumption
- current EU Policy appeals on the responsibility of the producers of alcoholic beverages to minimize or avoid alcohol related harms
Aims of current EU Alcohol Policy (dated October 24, 2006
- Protect young people, children and the unborn child
- Reduce injuries and death from alcohol-related road accidents
- Prevent alcohol-related harm among adults and reduce the negative impact on the workplace
- Inform, educate and raise awareness on the impact of harmful and hazardous alcohol consumption, and on appropriate consumption patterns
- Develop and maintain a common evidence base at EU level
Policy is under survey now, evaluation should have been finished in September 2012, no results available up to date
Proposals for amendments to be made until 2013
Tendency for more rigorous warnings visible in discussions and in latest ECJ-jurisdiction
National Alcohol Policies (Labelling)
E.g. Great Britain: Industry agreed on voluntary basis to „translate“ the products into UK drinking units and gives a clear recommendation for the maximum intake of drinking units
National Alcohol Policies (Labelling)
Legally required in France, Great Britain and Finland: indication of harms of drinking alcohol during pregnancy
European Legal Frame: Health Claims Regulation
Regulation (EC) No 1924/2006 of the European Parliament and of the Council provides a complex system of regulations for nutrition and health claims made on foods
Claims regarding the effect of foods to health must be based on scientific expertise, must be true – and registered in the respective register.
According to Art 4 subsection 3 Reg (EC) No 1924/2006, beverages containing more than 1,2 % by volume of alcohol shall not bear health claims or nutrition claims, other than those which refer to low alcohol level, a reduction in the alcohol or energy content.
Wine by definition as fermented grape juices containing more than 1,2% up to 15% by volume of alcohol, the legal frame for the use of Health Claims for wine is clear: NO!
European Legal Frame: Health Claims Regulation
“claim” by definition means any message or representation, which is not mandatory under Community or national legislation, including pictorial, graphic or symbolic representation, in any form, which states, suggests or implies that a food has particular characteristics
“health claim” means any claim that states, suggests or implies that a relationship exists between a food category, a food or one of its constituents and health
despite the title of the regulation, it does not provide legal definition of the term “health”
European Court of Justice (ECJ) held in case C‐544/10 (Sept. 6, 2012), that the German term “bekömmlich“ (= easily digestible, wholesome) states a relationship between wine and the health of the consumers
European Legal Frame: Health Claims Regulation
German wine growers´ cooperative Deutsches Weintor marketed wine with a reduced acidity as
“Edition Mild bekömmlich” (mild edition, easily digestible) - on the necks of the bottles
“It owes its mildness to the application of our special ‘LO3’ protective process for the biological reduction of acidity” – on the labels
„Edition Mild – sanfte Saure/bekommlich“ (mild edition – gentle acidity/easily digestible)
Deutsches Weintor argued, in essence, that the description ”easily digestible” does not refer to health but only to general well-being
European Legal Frame: Health Claims Regulation ECJ held, that the claim at issue suggests that, in view of the reduced acidity, the wine in question is
particularly easy or pleasant to digest. Accordingly, the wine is said to produce a beneficial nutritional or physiological effect
ECJ points out that - the concept of a “health claim” must cover not only a relationship implying an improvement in
health as a result of the consumption of a food, but also any relationship which implies the absence or reduction of effects that are adverse or harmful to health and which would otherwise accompany or follow such consumption, and, therefore, the mere preservation of a good state of health despite that potentially harmful consumption
- the description at issue, which suggests that the wine is readily absorbed and digested, implies, inter alia, that the digestive system – and thus a part of the human body – will not suffer, or will suffer little as a result, and that the digestive system will remain relatively healthy and intact even after repeated consumption, and thus accumulated amounts, over an extended period of time, given that that wine is characterised by reduced acidity
- By highlighting only the easy digestion of the wine concerned, the claim at issue is likely to encourage its consumption and, ultimately, to increase the risks for consumers’ health inherent in the immoderate consumption of any alcoholic beverage. Consequently, the prohibition of such claims is warranted in the light of the requirement to ensure a high level of health protection for consumers.
European Legal Frame: Health Claims Regulation
Critic:
- no native German speaker amongst the deciding ECJ-judges
- German term “bekömmlich” is not fully understood, translation (not only into English) is very difficult as direct translation does not include the secondary meaning of “well-being”
Advertising wine in Europe
Advertising of wine in principle is not prohibited in the EU up to date
Member States are entitled to rule this topic individually, so the 27 Member States have different regulations.
France with so called “Loi Evin“ has the strictest regulations, as direct and indirect advertising for alcoholic beverages in TV and Cinema is forbidden.
advertising therefore needs an individual strategy for the aimed markets
European Legal Frame: Oenological Practises Commission Regulation (EC) No 606/2009 provides detailed rules for grapevine
products, oenological practices and the applicable restrictions
Amended by Commission Implementing Regulation (EU) No 315/2012, in force since April 16, 2012, to establish amended or new permitted oenological practices of OIV
Et al: new requirements for the use of dimethyldicarbonate which may be added to the wine for
(a) microbiological stabilisation of bottled wine containing fermentable sugar (b) preventing the development of undesirable yeasts and lactic bacteria (c) blocking the fermentation of sweet, semi-sweet and semi-dry wine Requirements: - for (a), the addition must be carried out only a short time prior to bottling - the product used must comply with the purity criteria laid down in Directive 2008/84/
EC - this treatment is to be recorded in the register referred to in Article 185c(2) of
Regulation (EC) No 1234/2007.
European Legal Frame: Organic Wine
Council Regulation (EC) No 834/2007, further implemented by Regulation (EC) No 889/2008, provides detailed rules on wine made of organic grown grapes
Amended by Commission Implementing Regulation (EU) No 203/2012, applicable since August 1, 2012
- Wine made from organic grown grapes harvested in 2012 may now be named as “Organic Wine” on the label
- EU-logo “Organic” may be used (must, in case “Organic Wine” appears on the label)
Restrictions:
Use of sulphur dioxide
- maximum content shall not exceed 100 mg/l for red wines and with a residual sugar level lower than 2 g/l
- maximum content shall not exceed 150 mg/l for white and rose and with a residual sugar level lower than 2 g/l
- maximum content shall be reduced by 30 mg/l for all other wines
European Legal Frame: Organic Wine
Forbidden oenological practises
- partial concentration through cooling
- elimination of sulphur dioxide by physical processes
- electrodialysis treatment to ensure the tartaric stabilisation of the wine
- partial dealcoholisation of wine
- treatment with cation exchangers to ensure the tartaric stabilisation of the wine
Restricted oenological practises
- for heat treatments the temperature shall not exceed 70 °C
- for centrifuging and filtration with or without an inert filtering agent the size of the pores shall be not smaller than 0,2 micrometer
European Legal Frame: Organic Wine
Transition provisions:
Stocks of wines produced until July 31, 2012 in accordance with the “old” and “actual” regulations regarding organic grown or produced products may continue to be brought on the market until stocks are exhausted
Labelling requirements:
- provided that the wine-making process complies with new Reg (EU) No 203/2012, the “Organic logo of the EU” may be used
- operators using “Organic logo of the EU” shall keep recorded evidence, for a period of at least five years after they placed on the market that wine obtained from organic grapes, including of the corresponding quantities of wine in litres, per wine category and per year
- when this evidence is not available, such wine may be labelled as “wine made from organic grapes”, provided that it complies with the requirements of Reg (EU) No 203/2012
- wine labelled as “wine made from organic grapes” cannot bear the “Organic logo of the EU” (or any other “Organic” logo)
European Legal Frame: Organic Wine
Organic Wine produced in non-EU states
The import of organic products of non-EU states is ruled in Reg 834/2007 and 1235/2008
organic products which comply with the legal requirements of the EU may bear the indication “organic” and may be marketed in the EU
The Commission already examined and approved some non-EU states for their compliance. The list is available as Exhibit III of Reg 1235/2008. Listed e.g. Argentina, US – Brazil is not listed!
organic products from states not listed in Exhibit III of Reg 1235/2008 need a confirmation that the product complies with the European regulations for organic products (including regular controls) AND
a valid import permit from the competent authority of the addressed member state. The permit
- is to be organized by the European importer prior to the import
- has to be presented together with the confirmation of the state of origin about the EU compliance
European Legal Frame: Organic Wine
EU Organic Logo
Must be accompanied by
- the code number of the control authority in the same sight field
- indication of origin of the agricultural raw materials (grapes)
- in case they all origin from one country: name of country e.g. Brazilian Agriculture
- otherwise: Non-EU Agriculture
- EU Agriculture
- Non-EU/EU Agriculture (not applicable for wine as grapes must not be mixed that way!)
European Legal Frame: Biocidal Products
Regulation (EU) No 528/2012 of the Parliament and of the Council rules the making available on the market and use of biocidal products
Applicable from September 30, 2013
Sulphur Dioxide is not listed as permitted product for disinfection (e.g. of barrique barrels) – as it was not in the previous regulation
an admission proceeding according to the previous regulation was not finalized
appeal against denial of leave to appeal is pending at Commission
To avoid a final prohibition of the use of Sulphur Dioxide for disinfection, a proceeding to investigate/evaluate the active must be initiated
Afterwards, the individual permission of the product must be filed
Lobby organisations are working on that – but time is running!
Search for alternative permitted disinfectants!
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Dr. Wiebke Gorny
Kirchnerstrasse 6-8 60311 Frankfurt am Main
Germany
[email protected] www.gornylaw.de
