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Chocolate, Candy and the Law

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This is my first post back after my recent jolly jaunt back to dear old Blighty.  One of the first stops that I make when I land back on British soil is to my local fish and chip shop (chippy) where I have a delicious, but artery clogging meal (normally chips, a battered sausage, and baked beans).  The second is to any shop that sells chocolate and sweets (candy), where I stand and rub my greedy little hands together in glee and merriment.  U.S. chocolate and sweets just do not taste the same.   I have often wondered why and I believe that the answer, oddly enough, lies in part in the law.

Sweets (candy) in a Sweet shop in England
Sweeties! This is my local sweet shop in England.

When I first looked into the law regulating chocolate and sweets in England, I was a little surprised at how much was covered, with the most prominent laws applying to labeling products and tax.  There has been an astonishingly large amount of discussion in tax circles as to what exactly is and is not to be classed as “confectionery.”  The primary reason for this is that chocolate and sweets are excepted from the zero rating for tax on food.  In real terms, this exception means that I paid twenty percent in Value Added Tax (VAT) for my sweeties and choccy.   (As a side note, VAT in the UK is already included in the advertised price so there are no nasty surprises at the till (check out register)).  Items closely related to “confectionery”  such as  biscuits (cookies) and cakes are also zero rated for tax purposes, however, there are some exceptions to this, such as if the biscuit is coated in chocolate (yummy!).   There is a wide range of information on the distinction between a flapjack (zero rated) and a cereal bar (taxed at 20%).  An interesting chart that contains examples of what is and is not confectionery has been prepared by Her Majesty’s Treasury and it is available here.

With that much discussion over what is and is not confectionery, labeling these products has also generated some law, but the most prominent is the result of a Directive from the European Union.

The Directive, incorporated into the domestic law of England by a Statutory Instrument, provides that chocolate  may only be labeled as such if it meets the required compositional standards.  In order to be labeled as chocolate, the product must be:

obtained from cocoa products and sugars which, subject to item 3(b), contains not less than 35 per cent total dry cocoa solids, including not less than 18 per cent cocoa butter and not less than 14 per cent of dry non-fat cocoa solids.

Chocolate may contain up to a maximum of  5 per cent vegetable fat.  There are further requirements for products to be labelled as milk chocolate (the best kind, and the kind most commonly consumed in England), and these proved the most difficult to agree upon during negotiations surrounding the Directive.  This is because the different chocolate making techniques from the EU Member States, particularly with regard to milk chocolate, had to be taken into account.  For example, milk chocolate made in England tends to contain more milk, less cocoa and small amounts of vegetable fats that are not cocoa butter, following a 20 per cent dry cocoa solids and 20 per cent dry milk solids (20/20) recipe.  Chocolate made across the EU generally has a higher dry cocoa solids and lower dry milk solids percentage (25/14 recipe).  As a result of this a case had to be made for chocolate made in England to be labelled as chocolate in order for it to be legally sold across the EU.  At one point during discussions a suggestion was made for it to be called “vegelate.”  For some reason this was unsuccessful and later dropped from the table.  The end result was that chocolate made in England may be sold in the EU under the name “family milk chocolate.”

The penalty for breaching these regulations is a fine of up to £5,000 (approximately US$8,000).

In order to determine the differences between English chocolate and chocolate made in the U.S., I asked our intrepid Law Librarian Blogger Christine Sellers for her input on the U.S. side of things.  She provided the following information:

In the United States, chocolate is regulated by the Food and Drug Administration (FDA).  Cacao products regulations are contained within 21 C.F.R. 163 et seq.  Within those regulations, “chocolate liquor” is what is created by ground, processed cacao beans and must contain 50-60 percent of cacao fat.  As reported a few years ago, manufacturers (including the Grocery Manufacturers Association, Chocolate Manufacturers Association, and others) petitioned the FDA to use vegetable fat in place of cacao fat, though it was not successful.  If vegetable fat is used instead of cacao fat, manufacturers cannot call the result chocolate.

So there we have it.  Different percentages, mainly more milk in English milk chocolate, plus the use of vegetable fat, is what makes English chocolate taste different from chocolate manufactured in the United States.  Yum, Yum.

Update:  This post was linked over at The Foodie Entourage’s Blog, which goes a little more into how to find European style chocolate in the US.   Always useful information to have!

Comments (3)

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