12 June 2015

FOOD LAW: New decision from the CJEU on misleading labelling of foodstuffs

According to the Court of Justice of the European Union’s (“CJEU”) case law, the average well-informed consumer is expected to read the list of ingredients first, if the presence/absence of a certain ingredient is of importance to the consumer. I.e. if it is important to consumer, whether “raspberries” are present in a soft drink, the average well-informed consumer will start by reading the list of ingredients on the side of the bottle to verify, whether raspberries are present or not.

As a consequence of this case law, certain food businesses have made the argument that even though the packaging of a foodstuff gives the consumer the impression that a certain ingredient is present (e.g. by means of a picture of a raspberry) this will not mislead the consumer, if it is clear to the consumer from the list of ingredients that raspberries are not present in the product.

It is, however, rather unclear from the CJEU’s case law, whether a “correct” list of ingredients may always remedy an otherwise misleading statement/illustration on the front of the packaging.

A recent decision (case C-195/14 – Teekanne) from the CJEU sheds some light on this question.

The facts of the case are as follows:

A German producer of teas sold a product, which was marketed under the name “Felix Himbeer-Vanille Abenteuer” (“Felix’ Raspberry and Vanilla Adventure”). The outer packaging contained illustrations of raspberries and vanilla flowers as well as statements such as “Früchtetee mit natürlichen aromen” (“fruit tea with natural flavourings”) and ”nur natürliche Zutaten” (“only natural ingredients”). The list of ingredients was as follows “Hibiscus, apple, sweet blackberry leaves, orange peel, rosehip, natural flavouring with a taste of vanilla, lemon peel, natural flavouring with a taste of raspberry, blackberries, strawberry, blueberry, elderberry.”

As was clear from the list of ingredients, the tea did not contain any natural raspberry or vanilla aromas, but rather natural aromas which tasted like raspberry and vanilla.

An association of German consumers lodged a complaint against the producer claiming that the labelling of the product misled consumers into believing that the product contained natural raspberry and vanilla aromas.

The producer held – making reference to the CJEU’s previous case law - that it was sufficiently clear to the average consumer from the list of ingredients that the product did not contain any natural raspberry or vanilla aromas, but rather that the product contained natural flavourings that tasted like vanilla and raspberry.

The case was referred from the German courts to the CJEU, which was asked to state, whether the list of ingredients was sufficient as to prevent the average well-informed consumers from being misled by the statements on the content of "natural" raspberry and vanilla. The CJEU held that it will mislead the average well-informed consumer, if the packaging of a foodstuff gives the impression that a certain ingredient is present, even though it is clear from the list of ingredients that this particular ingredient is not present in product.

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