Over the past years, consumer and public health groups have been policing the marketplace for misleading and deceptive labelling practices, bringing actions against defaulting manufacturers before national courts. Their actions do not focus only on whether the label complies with the full regime of regulations that govern food labels but, more importantly, on the label’s impact on consumers.
The Court of Justice of the European Union (CJEU) delivered an interesting judgment following a request for a preliminary ruling brought by the German Federal Court of Justice in proceedings initiated by the German Federal Union of Consumer Organisations and Associations.
The case concerned fruit tea marketed by the German producer Teekanne under the name Felix Raspberry and Vanilla Adventure. The packaging, displaying images of raspberries and vanilla flowers, stated that the fruit tea contained ‘natural flavourings’ and included a seal with the indication ‘only natural ingredients’.
It was established by the German regional court that the tea did not actually contain any ingredients obtained from raspberries or vanilla, and this discrepancy was apparent from the list of ingredients. In fact, the list of ingredients found on one side of the packaging 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.’
The tea therefore did contain natural flavourings that had the ‘taste’ of raspberries and vanilla but it did not contain natural ingredients from vanilla or raspberries or flavouring obtained from them.
The German consumer-protection association brought an action against Teekanne, claiming that the items on the fruit tea’s packaging misled the consumer with regard to the tea’s actual content. It argued that the packaging led the consumer to expect the tea to contain vanilla and raspberry extract or natural vanilla or raspberry flavouring, and consequently requested the national court to order the German producer to desist from advertising the fruit tea in the course of its business.
Existence of ingredients list may be insufficient to correct erroneous or misleading packaging
Taking into account the expectations of the average consumer, the German regional court ruled in favour of Teekanne after it was established from the list of ingredients printed on the packaging that the natural flavourings used had the taste of raspberry or vanilla, while not being obtained from vanilla and raspberries.
The decision of the German court was in line with previous CJEU case law which ruled that consumers, whose purchasing decisions depend on the composition of the products, will first read the mandatory list of ingredients that was sufficiently clear and precise to rule out the existence of any misleading of consumers.
Dissatisfied with this decision, the German association appealed to the German Federal Court. The latter referred the matter to the CJEU for a preliminary ruling. The question brought before the CJEU was whether the labelling of a foodstuff may mislead the consumer when it gives the impression that a particular ingredient is present, even though it is not in fact present, and the only way for the consumer to notice this is by reading the list of ingredients.
In line with EU legislation and established case law, the CJEU held that the consumer needs to have correct, neutral and objective information that does not mislead. In assessing whether any labelling is likely to be misleading, due account must be taken of the presumed expectations, in light of that labelling, which an average consumer has, as to the origin, provenance and quality associated with the foodstuff. Labelling does not merely consist in the words used on the packaging but encompasses also other particulars such as trademarks, pictorial matter or symbols placed or used on packaging.
Consequently, the Luxembourg court ruled that even though the list of ingredients may be correct and comprehensive, the average reasonably informed consumer may still be misled if the packaging of a foodstuff gives the impression that the product contains a certain ingredient.
The CJEU reasoned that even though consumers who are interested in the exact composition of a product will read the list of ingredients, the existence of such a list may not be sufficient to correct the erroneous or misleading impression if some of the items on the packaging are misleading, erroneous, ambiguous, contradictory or incomprehensible.
Importantly, although up till now, in case of a contradiction between the labelling of a food product and its correct list of ingredients, the latter prevailed and the labelling was in principle not regarded as misleading, the court’s decision in this case tends to broaden the concept to cover situations where the labelling items and the labelling methods used, taken as a whole, give the impression that a particular ingredient is present in that foodstuff, while in fact it is not.
jgrech@demarcoassociates.com
Dr Josette Grech is adviser on EU law at Guido de Marco & Associates.