Abstract
This paper was conceived to underpin possible interesting legal questions arising in relation to information provided to consumers, in the specific field of food e-commerce. The first part, the introduction, is going to show how in a short amount of time technology, combined with changes in consumer habits, has opened the door to the development of e-commerce and also to food e-commerce as a new way to trade. The paper will explore, through the observation of marketing studies, what influences a consumer to buy online instead of offline and the relevance of food information on this process. The second part will then analyze the European current legal framework applicable to the labeling requirements that should be fulfilled on prepacked food sold through e-commerce. This analysis is meant to provide an overview regarding the recognized importance of the object of the paper and the elements to figure out how existing regulation, at the European level, is not clear enough, possibly representing an obstacle for food e-commerce development. The chapter finds that the lack of clarity does not help build consumers’ trust in online sales, creating also a barrier for producers to try to use this tool to sell their products directly.
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Notes
- 1.
Ryan (2010), p. 120.
- 2.
Internet is the result of a military study that started during the Cold War. The United States army needed a secure tool that was capable of transferring information. When the project grew and its potentials were discovered, in 1968 Internet was used to connect four universities in the United States and share research. Around the mid-late 1970s telecommunication companies started to be interested in digital network but it was only in the early 1990s that computers and Internet started to be a network for civilians. It was the 25th of July 1994 when the Time reported in its cover “the strange new world on the Internet.” In those years the connections developed and in 8 years its diffusion grew 135 times. The Web completely changed the way humans communicate. In the late 1990s as Internet started to be more accessible to a wider number of people, e-commerce developed. See, for further information, Ryan (2010), p. 23.
- 3.
E.g.: “business, technology, society, and skills of buying and selling of products and services with the aid of internet and computer or handheld devices which involves the process of ordering products or services to the time of delivery to the consumer or customer,” see Cujoe (2014), p. 136.; “any kind of transaction that is made using digital technology, including transactions over open networks such as the Internet, closed networks such as electronic data interchange (EDI) and debit and credit cards” see, Gillies (2008), p. 24; “An e-commerce transaction is the sale or purchase of goods or services, conducted over computer networks by methods specifically designed for the purpose of receiving or placing of orders. The goods or services are ordered by those methods, but the payment and the ultimate delivery of the goods or services do not have to be conducted online. An e-commerce transaction can be between enterprises, households, individuals, governments, and other public or private organisations. To be included are orders made over the web, extranet or electronic data interchange. The type is defined by the method of placing the order. To be excluded are orders made by telephone calls, facsimile or manually typed e-mail,” see OECD (2011); “E-commerce can be defined generally as the sale or purchase of goods or services, whether between businesses, households, individuals or private organizations, through electronic transactions conducted via the internet or other computer-mediated (online communication) networks. The term covers the ordering of goods and services which are sent over computer networks, but the payment and the ultimate delivery of the goods or service may be conducted either on- or off-line,” see Eurostat (2016). See, for further information, Comandè and Sica (2001), p. 5.
- 4.
Qin et al. (2009), pp. 2–4.
- 5.
Postal commerce existed before as to purchase a product and have it delivered at home (as milk).
- 6.
Levy and Weitz (2001), p. 60.
- 7.
This aspect is relevant in consideration of the fact that purchases choices of consumers might be influenced or sometimes determined by religious rules or ethic choices.
- 8.
Grunert and Ramus (2005), p. 381.
- 9.
Statista is an international statistics portal based in Hamburg (Germany) that provides data from different sources. For further information, see http://www.statista.com/aboutus/. For a detailed analysis of the methodological approach and for an overview, see https://cdn2.statista.com/static/img/emarkets/2015-dmo-methodology-en.pdf. Accessed 7 June 2017.
- 10.
For the purposes of Statista statistics, the eCommerce means “market encompasses the sale of physical goods via a digital channel to a private end user (B2C). Incorporated in this definition are purchases via desktop computer (including notebooks and laptops) as well as purchases via mobile devices such as smartphones and tablets. The following are not included in the eCommerce market: digitally distributed services (see instead: eServices), digitally distributed goods in B2B markets nor digital purchase or resale of used, defective or repaired goods (reCommerce and C2C). The eCommerce market considers the following product categories: “Fashion,” “Electronics and Media,” “Food & Personal Care,” “Furniture & Appliances” and “Toys, Hobby & DIY.” See https://www.statista.com/outlook/243/100/ecommerce/worldwide#. Accessed 7 June 2017.
- 11.
See https://www.statista.com/outlook/243/100/e-commerce/worldwide#. Accessed 7 June 2017.
- 12.
See https://www.statista.com/outlook/243/102/e-commerce/europe. Accessed 7 June 2017.
- 13.
See Ryan (2010), p. 128: “Together they attempted to rebuild groceries from the bottom up. The strategy was simple: ‘get big fast’ (gbf) to secure the market before competitors could stake their claim. If ‘the Net changes everything’ had been the first misleading maxim of the dot-com boom, ‘get big fast’ was the second. In July 1999 Webvan ordered the construction of 26 massive distribution and delivery centres at a gargantuan cost of $1 billion. Webvan already had vast distribution centres in operation. The new centres would allow it to open into new regions across the us.”
- 14.
See Asprey et al. (2013), p. 26: “The company expanded into new cities too quickly and spent too much money not only on the warehouses, but also on the vans to deliver the food and computer systems and proprietary software to run the operations.” Therefore, it seemed that the failure was imputed to the costs the Company would have had to stand, as the New York Times reported: “Grocery stores already operate on razor-thin profit margins without the added expense of delivery, and the perishable nature of many foods does not make operating from a central location feasible. By some estimates, an on-line grocer must do 10 times the volume of a typical store to be successful.” See Fisher (1999). See also Ryan (2010), p. 128.
- 15.
Tesco adopted a more cautious approach. Firstly Tesco tested on one store what would have been the reaction of the consumers having the opportunity to place orders using a phone, a fax or a website. Secondly it considered if building separate warehouses was preferable instead of keeping all the products in the same storage as those that were going to be sold directly. Both considerations were made to avoid expenses without knowing the possible reactions of the consumers to this new offered service. This first attempt was made in 1996, then 3 years later, in 1999, the decision was made and they launched the service in 100 stores. Tesco also considered another factor and, contrary to the policy of other online grocery stores that were not charging after a certain amount of money spent in the order, was charging for all the deliveries. This approach gave Tesco the possibility to keep the expenses low. This caused another side effect on consumers’ behavior related to the fact that the orders they were then placing were of a higher amount of money because they independently had to pay for the delivery. See Ryan (2010), p. 129.
- 16.
See Reinhardt (2001).
- 17.
“The e-Commerce market segment ‘Food & beverages’ contains the online sale of fresh and packaged foods (excluding baby food), delicacies and beverages. This market segment covers for example the sale of fruit, vegetables, pasta, snacks, sweets, refrigerated products, frozen food, soft drinks and alcoholic drinks via a digital channel. The most significant channel for the online sale of food and beverages are, at present, the online shops of the large supermarkets and warehouse stores, for example, walmart.com or subscription services such as HelloFresh. Not included in this market segment are delivery services of ready-to-eat meals. All monetary figures refer to the annual gross revenue and do not factor in shipping costs,” available at https://www.statista.com/outlook/253/100/food-beverages/worldwide#takeaway. Accessed 7 June 2017.
- 18.
See https://www.statista.com/outlook/253/100/food-beverages/worldwide#takeaway. Accessed 7 June 2017.
- 19.
See https://www.statista.com/outlook/253/102/food-beverages/europe. Accessed 7 June 2017.
- 20.
It is relevant to underline the fact that this stores were not born exclusively for food e-commerce. They have in fact different sections of products offered and also a specific section dedicated to food. For example Amazon Fresh, Alibaba, Cortilia (ITA).
- 21.
E.g. Eataly (ITA), Esselunga (ITA), Tesco (UK).
- 22.
E.g. Azienda Agricola Agrisole (ITA), Il Porcospino Azienda Agricola (ITA), Blue Ridge Specialty Foods (USA).
- 23.
E.g. Blue Apron (USA), Plated (USA), Hello Fresh (USA).
- 24.
E.g. Just eat (ITA), myFOOD (ITA).
- 25.
The fact that it cannot be stated that food choices are always related to culture is determined by two aspects; the first one is related to the availability of food and the second one to the matter related to health issues and, consequently, to food consumptions that are mandated (for example, those cases in which there is an allergy or when because of a disease there are specific goods that a person cannot eat). For further information, see Belasco (2008), p. 2; Germanò et al. (2014); Albisinni (2015), p. 11; Costato et al. (2015); Masini (2015); Germanò (2016).
- 26.
Here, the term culture is used as a combination of multiple factors starting from eventual religious rules that the consumer has to follow because of its religious orientation (for example, Halal food consumers do not eat pork) or because of possible ethical choices (Ethical choices are related to the tendency developed by consumers to select products considering a combination of factors for example the labour conditions of the workers that have been contributed to produce the goods used, another example could be made thinking about the selection of products that have been grown in lands that were previously belonging to the Mafia. Commonly, a label indicates if the product has those characteristics) and then because cultures, in relation to food, are also determined, and it might be better to say used to be, by the geographical position of the population.
- 27.
Here the word culture is used to indicate habits.
- 28.
- 29.
Time consuming factor is related to the fact that usually they have to plan ahead when they have to go for grocery and usually walk there or use a car and consequentially have to park it, adding time to the entire process.
- 30.
Grunert and Ramus (2005), p. 393, defines lifestyle as “a mental construct which mediates between life values on the one hand side and perceptions of concrete products or alternative courses of action on the other side, i.e. lifestyle summarizes how people believe that a certain group of products or actions contributes to the attainment of those life values which motivate the behaviour of these people. Lifestyle defined in this way is clearly related to both exposure, attention to and comprehension of information.”
- 31.
Seitz (2013), p. 130.
- 32.
E.g. Seniors, disables, pregnant women. See Seitz (2013), p. 129.
- 33.
Ibid.
- 34.
E.g. food websites of specific products as wine directly from a winery or other specialties directly purchased from the producer.
- 35.
Liang and Huang (1998), p. 34.
- 36.
One of the two areas, included in the Single Market Act, identified for the consolidation of the Digital Single Market, is the necessity to build a stronger trust of the consumers on e-commerce. See European Commission (2011), p. 5.
- 37.
European Commission (2015).
- 38.
European Commission (2011), p. 3.
- 39.
Regulation (EU) 1169/2011 of the European Parliament and of the Council of 25 October 2011 on the provision of food information to consumers, amending Regulations (EC) 1924/2006 and (EC) 1925/2006 of the European Parliament and of the Council, and repealing Commission Directive 87/250/EC, Council Directive 90/496/EEC, Commission Directive 1999/10/EC, Directive 2000/13/EC of the European Parliament and of the Council, Commission Directives 2002/67/EC and 2008/5/EC and Commission Regulation (EC) No 608/2004, OJ [2011] L 304.
- 40.
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, OJ [2000] L 109.
- 41.
- 42.
The Regulation 1169/2011, because of its own nature, will be identically applied to all Member States. The Regulation, as stated in its whereas 1, says “Article 169 of the Treaty on the Functioning of the European Union (TFEU) provides that the Union is to contribute to the attainment of a high level of consumer protection by the measures it adopts pursuant to Article 114 thereof,” is meant to protect consumers and at the same time to achieve the fulfillment of their right to information about the food they are willing to buy, being able to make an aware choice. As stated under article 3 of the FIC, and anticipated in whereas three of the same Regulation, “in order to achieve a high level of health protection for consumers and to guarantee their right to information, it should be ensured that consumers are appropriately informed as regards the food they consume. Consumers’ choices can be influenced by, inter alia, health, economic, environmental, social and ethical considerations.” Therefore, the right to information is strictly related to the fact that “consumers’ choices can be influenced by, inter alia, health, economic, environmental, social and ethical considerations,” underling again how important are labels for the consumers, considering that they are the tool used to carry the information.
- 43.
Article 2(2)(u) of the general provisions defines distance communication as “any means which, without the simultaneous physical presence of the supplier and the consumer, may be used for the conclusion of a contract between those parties.”
- 44.
- 45.
It is relevant to make a consideration, as already made by other authors, regarding the fact that in the proposal for a Regulation of the European Parliament and of the Council on the provision of food information to consumers (presented by the Commission on 30.01.2008, COM(2008) 40 final, C&-0052/08) in the article 15 (art. 14 of the actual Regulation), regarding distance selling, it gives a specific reference to define distance communication, which does not exist in the new version. The just mentioned article conforms to the definition of Art. 2 of Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts, OJ [1997] L 144. The cited article contains the definition of distance contract given by art. 2.1: “‘distance contract’ means any contract concerning goods or services concluded between a supplier and a consumer under an organized distance sales or service-provision scheme run by the supplier, who, for the purposes of the contract, makes exclusive use of one or more means of distance communication up to and including the moment at which the contract is concluded.” The same Directive, in its Annex I, gives also a list of methods of communication covered by art. 2 and does not refer to e-commerce. At the same time, the Directive has been repealed by Directive 2011/83/EU of 25 October 2011, which in art. 2.7 gives a definition of distance contract as “any contract concluded between the trader and the consumer under an organised distance sales or service-provision scheme without the simultaneous physical presence of the trader and the consumer, with the exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded,” but no reference to this definition exists anymore in the last version of the food labeling regulation. As already been underpinned in the doctrine, the definition of distance contract can be used, considering that the Directive does not refer to a specific sector and for this reason is widely applicable.
- 46.
Art. 2(2)(e) of the Regulation 1169/2011 states that “‘pre packed food’ means any single item for presentation as such to the final consumer and to mass caterers, consisting of a food and the packaging into which it was put before being offered for sale, whether such packaging encloses the food completely or only partially, but in any event in such a way that the contents cannot be altered without opening or changing the packaging; ‘pre packed food’ does not cover foods packed on the sales premises at the consumer’s request or pre packed for direct sale.”
- 47.
According to Art. 44(1) of the Regulation 1169/2011, non-pre packed food are “offered for sale to the final consumer or to mass caterers without pre packed” or foods “packed on the sales premises at the consumer’s request or pre packed for direct sale.”
- 48.
Artt. 9-35 and Annex III of the Regulation 1169/2011 and all mandatory EU laws that are applicable. See for further information DG SANCO (2013) “Questions and Answers on the application of the Regulation (EU) N° 1169/2011 on the provision of food information to consumers.” http://ec.europa.eu/food/safety/docs/labelling_legislation_qanda_application_reg1169-2011_en.pdf. Accessed 16 February 2016.
- 49.
With the expression mandatory information the legislator wanted to refer to all mandatory EU rules laws in general is specified, even if the document does not have a legal value, for further information DG SANCO (2013) Questions and Answers on the application of the Regulation (EU) N° 1169/2011 on the provision of food information to consumers. http://ec.europa.eu/food/safety/docs/labelling_legislation_qanda_application_reg1169-2011_en.pdf. Accessed 16 February 2016.
- 50.
Art. 9(1) Regulation 1169/2011, mandatory information: “In accordance with articles 10 to 35 and subject to the exceptions contained in this Chapter, indication of the following particulars shall be mandatory: (a) the name of the food; (b) the list of ingredients; (c) any ingredient or processing aid listed in Annex II or derived from a substance or product listed in Annex II causing allergies or intolerances used in the manufacture or preparation of a food and still present in the finished product, even if in an altered form; (d) the quantity of certain ingredients or categories of ingredients; (e) the net quantity of the food; (f) the date of minimum durability or the ‘use by’ date; (g) any special storage conditions and/or conditions of use; (h) the name or business name and address of the food business operator referred to in article 8(1)(i) the country of origin or place of provenance where provided for in article 26(j) instructions for use where it would be difficult to make appropriate use of the food in the absence of such instructions; (k) with respect to beverages containing more than 1,2 % by volume of alcohol, the actual alcoholic strength by volume; (l) a nutrition declaration.”
- 51.
Art. 14(3) Regulation 1169/2011: “Point (a) of paragraph 1 shall not apply to foods offered for sale by means of automatic vending machines or automated commercial premises.”
- 52.
See Germanò (2012), p. 272.
- 53.
Art. 15 Regulation 1169/2011 “Without prejudice to article 9(3), mandatory food information shall appear in a language easily understood by the consumers of the Member States where a food is marketed. 2. Within their own territory, the Member States in which a food is marketed may stipulate that the particulars shall be given in one or more languages from among the official languages of the Union. 3. Paragraphs 1 and 2 shall not preclude the particulars from being indicated in several languages.”
- 54.
Regarding the responsibility, whereas 21 of the Regulation 1169/2011 declares that “in order to prevent a fragmentation of the rules concerning the responsibility of food business operators with respect to food information it is appropriate to clarify the responsibilities of food business operators in this area. That clarification should be in accordance with the responsibilities regarding the consumer referred to in article 17 of Regulation (EC) No 178/2002” that specifically refers to business operators. As regards to this specific matter in the document related to “Questions and Answers on the application of the Regulation (EU) N° 1169/2011 on the provision of food information to consumers,” 13 January 2013, p. 7, there is a suggestion referring to the possible identification of the business operator responsible, recognized in the “owner of the website.” This answer does not seem to be realistic and leads to other relevant question related to the ownership of the website and for this reason will be object of a future detailed study.
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Rolandi, S. (2017). Food E-Commerce as a New Tool for the Growth of the Economy. European Legal Framework for Information of Prepacked Food Sold Online. In: Alabrese, M., Brunori, M., Rolandi, S., Saba, A. (eds) Agricultural Law. LITES - Legal Issues in Transdisciplinary Environmental Studies, vol 1. Springer, Cham. https://doi.org/10.1007/978-3-319-64756-2_11
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