Monthly Archives: December 2022

Importance of Guidelines related to the Act against Unjustifiable Premiums and Misleading Representations (Japan)

This month, we will take up the topic on the page of “Guidelines related to the Act against Unjustifiable Premiums and Misleading Representations” (the Consumer Affairs Agency) for business operators handling foods to check it again. I hope this will be good opportunity to remind people of the importance of “Misleading representations” under the Act against Unjustifiable Premiums and Misleading Representations.

Points to note

The term “labeling” as used in the Act against Unjustifiable Premiums and Misleading Representations means advertisement or labeling in general made by a business operator to inform consumers of the quality, standards, other contents, prices and other terms and conditions of the goods and services it supplies as a means of attracting customers.

Concept under the Act against Unjustifiable Premiums and Misleading Representations in relation to food labeling of menus, dishes, etc.

Regarding labeling of menus and dishes provided by hotels, department stores, restaurants, etc., the Act against Unjustifiable Premiums and Misleading Representations (Q-1 below) and specific examples (Q-2 and thereafter) are explained in an easy-to-understand manner. The content is related to familiar menus and dishes so that it will be easier to understand misleading representations concerning the quality/standard of a product or service.

Q-1 In what cases do the labeling become legal issues regarding menus and names of dishes provided at restaurants, etc. under the Act against Unjustifiable Premiums and Misleading Representations?
<Explanation>(snip) Specifically
(i) In the case where the specific ingredient (A) is indicated in consideration of  
-social common sense regarding the dish or ingredient
-the general meaning of terms
-the definitions, standards, specifications, etc. in other acts and regulations, etc. including Food Labeling Act, etc., which are recognized as being socially established
and the ingredient (B) actually used are different from the ingredient (A) above(ii) Based on the case (i) above, in the case where the indication of ingredient (A) in consideration of below is exaggerated to the level that ordinary consumers would not usually be attracted if they knew the difference from ingredient (B) actually used.
-the nature of the food
-the level of knowledge of general consumers about the food and ingredient
-the actual state of transactions of the food and ingredient
-the method of indication on menus, etc.,
-the content of the indication, etc.,
The cases that correspond to two cases above falls under Misleading representations.

In other words, it is important to check “whether the labeled ingredient correspond to the ingredient actually used”.

Operational guideline of Act against Unjustifiable Premiums and Misleading Representations Article 7, Paragraph 2(Guidelines on Advertising Content That Has Not Been Demonstrated)

The Commissioner of Consumer Affairs Agency may request a business operator to submit materials showing reasonable grounds to support the indication. If the business operator fails to submit the requested materials within the set period of time or the submitted materials are not recognized as showing reasonable grounds to support the indication, it is deemed to be a misleading representation. The following two requirements must be met in order for the submitted materials to be considered as reasonable grounds to support labeling.

1. The submitted material must have the contents which have been verified objectively.
The submitted materials must be able to explain that the specific effectiveness and performance indicated are true, and in order to do so, it must be objectively verified content that falls under any of the following.
A. Results obtained from tests and inspections
B. Opinions by experts, professional associations or professional organizations, or academic literature
2.Appropriate correspondence between labeled effectiveness and performance and submitted materials can be foundIn order for the submitted materials to be recognized as showing reasonable grounds to support the labeling, they must be objectively verified as such, and the labeled effectiveness and performance must appropriately correspond to what is verified by the submitted materials.

Page 5 of the Guidelines ‘examples’ gives explanations on “reasonable grounds”. Regardless of whether or not your company’s products are clearly labeled with an emphasis on their superiority, it is important to first consider whether or not they are the ground for the labeling.

Misleading representations as to the country of origin of products

Regarding the country of origin of the product, in principle, the following indication is stipulated as a misleading representation.

… omitted …
B. The following labeling for products produced in a foreign country, where it is recognized that it is difficult for the general consumer to judge that the products were produced in the country of origin
(1) Indication of the name of a country, place, flag, coat of arms, or other similar symbol other than that of the country of origin of the goods
(2) Indication of the name or trade mark of a business operator or designer of a country other than the country of origin of the products
(3) Indication in which all or a major part of the textual representation is in Japanese

The “country of origin” here refers to the country where an act that substantially changes the content of the products (acts of substantial changes) has been committed. Acts of substantial modification of individual product are stipulated in ‘operation rules regarding the definition of “country of origin” in “misleading representations about the country of origin of a product”‘. Targeted food items are “green and black tea”, “soft drinks (including fruit juice)”, and “rice crackers”.  ”Country of Origin” in Food Labeling Standards also refers to “the country where an act that causes a substantial change in the content of the product was committed”, so please refer to Food Labeling Standards Q & A (Processing -156,157), etc.

Labeling for soft drinks contain no fruit juice, etc.

For soft drinks, etc. that contain no fruit juice or pulp or a small amount (less than 5%) of fruit juice, the following labeling is defined as misleading labeling without clearly stating “no fruit juice in its ingredients is used” or “the percentage of fruit juice used”.

(1) Labeling of the product name, etc., using the name of the fruit on the container or package of the soft drink, etc.
(2) Labeling of pictures, photographs, or designs of fruits on the containers or packages of the soft drinks, etc.
(3) Labeling of the soft drink, etc. or its container or package if it is coloured, flavoured, or packaged in a color, aroma, or taste identical or similar to that of the juice, pericarp, or pulp of the fruit

In addition, according to Operational standard for “Labeling for soft drinks contain no fruit juice, etc.”, it should be noted that the indication of “percentage of fruit juice” is limited to cases where “the numerical value of the ratio to the standard of Brix scale.

Since labeling subject to the Act against Unjustifiable Premiums and Misleading Representations includes not only indication by the product itself (including containers and packaging), indications at stores, advertisements in flyers, advertisements in newspapers and magazines, but also advertisements on television and the Internet, it can be said the target is applied to “wide range” of labeling, which is characteristic of the Act.
For such a wide range of regulations, it is important to keep in mind common basic ideas. On the same page, there is also a “Collection of Violation Cases”, so I hope this will be an opportunity for you to check again if there is any labeling of your products that might need to be judged if there’s any misleading.

References


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We issue monthly e-newsletters, which provide you with the latest updates on food labeling/regulations in Japan.
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Related Service

Research Services on Ingredients & Food Labeling -For the Japanese Market-
We verify the conformity of ingredients and additives with the standards for use in Japan based on specifications such as formulation lists. We also verify the conformity of the proposed labeling of ingredient names, nutrients, etc. with the labeling standards based on specifications such as formulation lists.

Comments invitation on partial revision draft of Food Labeling Standards started ~Addition of walnuts to the list of Specified allergens (mandatory labeling items for allergens) and Addition of rapeseed producing EPA/DHA to the list of specified genetically modified agricultural products~(Japan)

On October 13, 2022, the Consumer Affairs Agency announced the start of invitation for public comment on the “Partial Revision of Food Labeling Standards.” The public comment was closed on November 12.

Summary of the revision

According to the public comment procedure, the outline of the revision draft is as follows.

  1. “Walnut”, which contains a substance that causes allergy, is currently on the list of recommended labeling for allergen. However, the result of the Report on the National Survey of Health Damage Caused by Immediate-type Food Allergy, etc. has led to the policy that labeling is required, and “walnuts” will be added to the list of Specified allergens (mandatory labeling items for allergens in Japan).
  2. In the future, it is expected that foods derived from rapeseed genetically modified to produce eicosapentaenoic acid (EPA) and docosahexaenoic acid (DHA) will be distributed in Japan after a safety assessment by the Ministry of Health, Labour and Welfare. Therefore, such rapeseed is to be added to the list of specified genetically modified agricultural products to be labeled under the labeling system for genetically modified foods.

Revision of mandatory allergen labeling items

Allergen labeling is required for “foods containing processed foods made from Specified Allergens (for mandatory labeling items for allergens in Japan) (including those made from said processed foods and excluding those whose antigenicity is not recognized) and additives derived from Specified Allergens (excluding those whose antigenicity is not recognized and flavour).” Appended Table 14, which specifies Specified Allergens, will be revised as follows. (Revised parts are underlined in red letters)

Appended Table 14 (before the revision) Appended Table 14 (after the revision)
Shrimp
Crab
Wheat
Soba (Japanese buckwheat noodle)
Egg
Milk
Peanuts
Shrimp
Crab
Walnut
Wheat
Soba (Japanese buckwheat noodle)
Egg
Milk
Peanuts

Walnuts were previously listed as an item for which labeling was recommended as “Specified raw material equivalents” but this will now be shifted to an item for which labeling is mandatory.

About the addition of rapeseed producing EPA and DHA

Matters concerning genetically modified foods are covered in “Appended Table 17 (Target Agricultural Products and Processed Foods) and Appended Table 18 (Target forms and characteristics and Processed Foods)”, of which Appended Table 18, which specifies forms and characteristics, will be revised. (Revised parts are underlined in underlined in red letters)

Appended Table 18 (before the revision)

Form and characteristicsProcessed foodsTarget agricultural products
Stearidonic acid production 1 Food made mainly from soybeans (except ones which do not have form and characteristics listed in the upper table (left) after being defatted)
2 Food made mainly from an ingredient listed in 1
Soybean
High lysine 1 Food made mainly from corns (except ones which do not have form and characteristics listed in the upper table(left))
2 Food made mainly from an ingredient listed in 1
Corn

Appended Table 18 (after the revision)

Form and characteristics Processed foods Target agricultural products
Stearidonic acid production

1 Food made mainly from soybeans (except ones which do not have form and characteristics listed in the upper table (left) after being defatted)

2 Food made mainly from an ingredient listed in 1
Soybean
High lysine

1 Food made mainly from corns (except ones which do not have form and characteristics listed in the upper table(left))

2 Food made mainly from an ingredient listed in 1
Corn
Eicosapentaenoic acid (EPA) production 1 Food made mainly from rapeseed (except ones which do not have form and characteristics listed in the left table
2 Food made mainly from an ingredient listed in 1
Rapeseed
Docosahexaenoic acid (DHA) production

Although rapeseed is listed as a target agricultural product in Appended Table 17, no requirements are set for its processed foods. As a result of this revision, it will be necessary to confirm the characteristics (EPA/DHA production) of items that fall under the category of “items whose main ingredient is rapeseed (and items whose main ingredient is food whose main ingredient is rapeseed).”

Upcoming schedules

In the revision draft based on invited public comments, the transitional measures period and the effective date regarding Appended Table 14 (allergen labeling) have not yet been determined.

(Effective Date)
Article 1 This Cabinet Office Ordinance comes into effect as of the date of promulgation. However, the revised provisions of Appended Table 14 shall come into effect as from XX(date) XXX(month), XXXX(year).
(Transitional Measures)
Article 2 With regard to the labeling of processed foods (excluding processed foods for business use) which are manufactured, processed, or imported and processed foods for business use to be sold by from the date of enforcement of the revised provisions prescribed in the proviso of the preceding article to XX(date) XXX(month), XXXX(year) and processed foods for business use which are sold by the same date, the provisions then in force shall remain applicable notwithstanding the provisions of Appended Table 14 of the Food Labeling Standards revised by said revised provisions.

A report on the revision draft was published on December 13, 2022. The transitional period is until March 31, 2025.

(Effective Date)
Article 1 This Cabinet Office Ordinance comes into effect as of the date of promulgation.
(Transitional Measures)
Article 2 With regard to the labeling of processed foods (excluding processed foods for business use) manufactured, processed, or imported from the date of enforcement of this Ordinance to March 31, 2025, and processed foods for business use to be sold by the same date, the provisions then in force shall remain applicable notwithstanding the provisions of Appended Table 14 of Food Labeling Standards revised by this Ordinance.

If the allergen labeling currently covers only seven items, it will be necessary to re-check from the stage of product specification in order to add a new indication. Especially in the case of handling imported foods and ingredients it must be carefully checked whether or not walnuts are contained (because many countries collectively handle them as “nuts”).

As for walnuts, the revision is implemented in response to a background such as an increase in the number of cases of allergy. Even during the transitional measures period, it is important to reconfirm information management, such as ingredient specifications, to be able to respond to inquiries from consumers.

Reference

Regarding Comments invitation on partial revision draft of Food Labeling Standards


Newsletter Signup

We issue monthly e-newsletters, which provide you with the latest updates on food labeling/regulations in Japan.
If you want to make sure to not miss any issue, please click below.

Related Service

Research Services on Ingredients & Food Labeling -For the Japanese Market-
We verify the conformity of ingredients and additives with the standards for use in Japan based on specifications such as formulation lists. We also verify the conformity of the proposed labeling of ingredient names, nutrients, etc. with the labeling standards based on specifications such as formulation lists.