Food Labels that Mislead Consumers

What words should food and beverage manufacturers be required to place on the label of products? What should they be allowed to add on their own? EU law has been adopted to regulate such issues, so that consumers have enough information to make informed choices.

The Court of Justice of the European Union (CJEU) has handed down two judgments in which it interprets EU food labelling law – in the case of Bundesverband der Verbraucherzentralen und Verbraucherverbände – Verbraucherzentrale Bundesverband e.V. v Teekanne GmbH & Co. KG (Teekanne); and Neptune Distribution v the French Minister for Economic Affairs and Finance (Neptune).

These preliminary rulings show that, even where truthful statements are made on the labelling of food and beverage products, consumers may still be misled if the information – on aggregate or as a whole – implies and conveys another message.

Although the Teekanne and Neptune cases respectively deal with tea and mineral water labelling, the legal concepts can be applied to other food products – in particular, those containing palm oil. The opinions add guidance to the concept of a misleading label, when considered in its entirety.

Teekanne fruit tea label

On June 4, 2015, the CJEU handed down a preliminary ruling following a request by the Bundesgerichtshof (BGH, or the German Federal Court of Justice) in the proceedings of a consumer protection association (Verbraucherzentrale Bundesverband) and tea manufacturer Teekanne.

Teekanne marketed a fruit tea called Felix Himbeer-Vanille Abenteuer (Felix Raspberry-Vanilla Adventure). The packaging had images of raspberries and vanilla flowers and the words ‘fruit tea with natural flavourings’ and ‘fruit tea with natural flavourings – raspberry-vanilla taste’.

The ingredients were: ‘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’. However, the product did not contain natural ingredients or flavouring from vanilla or raspberry.

The consumer protection association alleged that Teekanne had misled consumers, who would expect the tea to contain vanilla and raspberry or, at least, natural vanilla flavouring and natural raspberry flavouring.

The BGH asked the CJEU for a preliminary ruling on whether the label may mislead consumers when it gives the impression that a particular ingredient is present – even though it is not, and the only way to be aware of this is by reading the list of ingredients.

Given the date of the facts in Teekanne, Directive 2000/13/EC on the approximation of the laws of EU member-states relating to the labelling, presentation and advertising of foodstuffs still applied. As such, the CJEU recognised that:

• Article 2(1)(a)(i) requires that consumers have correct, neutral and objective information. While they are assumed to read the list of ingredients, the CJEU did not exclude the possibility that the label may still mislead when items are erroneous, ambiguous, contradictory or incomprehensible.
• The CJEU reasoned that the list of ingredients, even though correct and comprehensive, may not sufficiently correct the erroneous or misleading impression gained from the label.
• Under Article 16 of Regulation No 178/2002 on the general food law, the labelling, advertising and presentation of food or feed – including their shape, appearance or packaging; the packaging materials used; the manner in which they are arranged; and the setting in which they are displayed – must not mislead consumers.

The CJEU does not rule on disputes from a factual perspective. It provides preliminary rulings on theoretical legal questions arising from national courts in EU member-states; and those courts are then responsible for ruling on the individual cases.

With its decision, the CJEU deviated from its previous jurisprudence in relation to the ‘average consumer, who is reasonably well informed and reasonably observant and circumspect’. This change of direction could have far-reaching consequences for the food industry and the design of product packaging.

On Dec 2, 2015, the BGH, applying the CJEU’s reasoning and criteria, found that the product labelling may mislead consumers.