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Observations on an Anvisa resolution with changes to food packaging

by Ana Lúcia de Sousa Borda

February 05, 2021

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When Brazilian Health Surveillance Agency’s (Anvisa) Collegiate Board Resolution (RDC) no. 429, of October 8, 2020, comes into force, there will be a significant change to the packaging of most ready-to-eat foods. It specifically determines the nutrition labeling of packaged foods. On the same date, the collegiate board, through Normative Ruling no. 75, established the technical requirements for declaring the nutrition labeling of packaged foods, applying it in a complementary manner to the mentioned resolution.

Commensurate with the importance and enormous impact of the changes introduced, both the resolution and the normative ruling will come into force only after 24 months following their publication, that is, they will come into force only from October 8, 2022. The final provision of the resolution provides for the possibility of review before its entry into force due to the results of negotiations to harmonise nutrition labeling in the Mercosur.

In some situations, the labeling declaration will be optional, for example on packaging with a main panel area of less than 35 cm² or in cases where the food is packaged at the point of sale at the consumer’s request. There are still foods whose nutrition labeling declaration is even forbidden, among them are baby foods, food supplements and powdered milk, to name just a few.

Among the changes introduced, the most significant, which will be examined here more closely, is the one that makes it mandatory for the front nutrition labeling declaration be in the “upper half of the main panel, on a single continuous surface”. Added sugar, saturated fats and sodium will be declared on the nutrition labeling when their quantities are equal to or greater than the limits established in Annex X of the Normative Ruling.

The model adopted contains the design of a magnifying glass followed by the expression “HIGH IN”. This information should be presented in black on a white background, regardless of the colour of the packaging, all in capital letters and bold. In addition, the font and letter size were determined by the normative ruling, as they were for the different forms of presentation in order to adapt to packaging of different sizes and formats. In order to ensure that it will not be difficult for consumers to read the nutrition labeling declaration, the resolution makes it clear that it cannot be difficult to be seen, be covered up, nor be displayed in places that can be removed to open the packaging.

That said, the packaging of a food will need enough space, depending on the particular case, to include, in addition to the magnifying glass, the words “HIGH IN ADDED SUGAR, SATURATED FAT AND SODIUM”. This is just an example. The normative ruling considers all possible variables, starting with foods that are “HIGH IN” one, two or all three of these components.

Having made these initial considerations, it is now important to try to measure the impact of these changes not only on the industry, but especially on consumers, who are its main recipients. In fact, regulatory issues apart, one wonders how these new rules will reverberate in the area of trademarks, especially since the now mandatory information will occupy a space that was previously entirely available for the mark, as well as for the other characteristic and distinctive elements of the packaging. It will also be a challenge for professionals in charge of creating and developing labels.

A package’s front is known to be the most appealing to the public and can significantly interfere in its purchase decision, so much so that it is considered an advertisement, playing a particularly important role. And that is how it should be, since the packaging bears the product’s identity, in addition to other values that are intrinsic to it, establishing an actual form of communication with consumers. It is assumed that more attentive consumers, when coming across a food with a high sugar, saturated fat and/or sodium content, will discard it, even if it is a product that they are used to buy. In any event, a similar situation will probably occur in the case of consumers who, being unfamiliar with a product, upon seeing the nutrition labeling declaration, will choose not to purchase it and look for a similar product without the high content of one or more of the mentioned ingredients.

In fact, the reality is that at least a portion of consumers are quite careful and choose the foods they are going to purchase by seeking the opposite, that is, products whose differential is precisely a reduced fat, sodium and added sugars content. For this public, the changes introduced by Anvisa will be even more decisive and determining at the time of purchase. Thus, there will be real competition on the one hand between the trademark and other signs that identify the product, and on the other hand the front nutritional labeling declaration, which, depending on its content, will not only alter the purchase decision, but lead consumers to seek other options for consumption on a permanent basis.

Another possible scenario will be a movement and even a great effort on the part of the industry – in this two-year interval – to the effect of appreciably adapting the composition of its products, in order not to incur the new rules commented on here, thus removing the need to effect a major change to the point of directly and negatively influencing consumers.

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Ana Lúcia de Sousa Borda

Partner, Lawyer, Industrial Property Agent

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