Neptune mineral water label
The CJEU published another ruling on Dec 17, 2015, in the case of Neptune, a French distributor of bottled mineral water. This confirmed that a holistic approach must be taken when assessing whether food labelling is misleading.
Neptune sells two brands of natural sparkling mineral water. It made specific claims in relation to the type and amount of sodium contained. It also claimed the presence of sodium bicarbonate, and not table salt, in these products.
The Annex to Regulation (EC) No. 1924/2006 on nutrition and health claims made on foods expressly lists ‘very low in sodium/salt’ as a prohibited claim, with respect to natural mineral waters and other waters.
Article 9(2) and Annex III of Directive 2009/54/EC on the exploitation and marketing of natural mineral water state that indications that a product is low in sodium or salt, or is suitable for a low-sodium diet, may only be used when the total sodium content is less than 20mg/l.
Due to the language suggesting that its products contain low or very low levels of salt or sodium, Neptune was ordered to stop using the labels and other statements in its labelling or advertising of Saint-Yorre and Vichy Célestins. The company challenged the order.
The French Council of State asked the CJEU for a preliminary ruling on whether the sodium content must be calculated solely on the basis of sodium chloride (table salt), or whether it must account for the total amount of sodium in all its forms (including sodium bicarbonate).
The CJEU recognised that:
– EU law prohibits the claim ‘very low in sodium/salt’ with respect to natural mineral water and other water unless the total sodium content is below 20mg/l.
– The EU legislature wants consumers to have appropriate and transparent information on the sodium content of drinking water. Since sodium is a component of various chemical compounds (like sodium chloride and sodium bicarbonate), the quantity present must take account of the total amount, whatever its chemical form.
The CJEU found that consumers might be misled where the packaging, label and advertising for natural mineral water suggest that products are low in sodium or salt, or are suitable for a low-sodium diet, when they actually contain 20mg/l or more of sodium.
Impact on palm oil products
The CJEU’s reasoning reinforces the requirement that the potentially misleading nature of food labelling must be considered in the context of the packaging as a whole, regardless of the technical truth of any specific statements.
With respect to palm oil, since Dec 13, 2014, the use of any vegetable oil in a food product must be expressly listed in the list of ingredients. This is a key factor in the analysis of what may mislead a reasonable consumer when confronted with a ‘No palm oil’ label, especially in relation to other food products available.
As observed in Teekanne, the images on packaging are also important. Where the ‘No palm oil’ label is used and if labelling emphasises the ‘healthy’ characteristics of a food, consumers may be misled into believing that palm oil consumption is ‘unhealthy’. In reality, the nutritional characteristics of palm oil are comparable to other vegetable oils.
Whether it be in relation to tea, water or palm oil products, food manufacturers should not be allowed to mislead consumers. And the EU has rightly codified this protection in determining that statements on labels must be considered holistically.
FratiniVergano
European Lawyers
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