Millilitres or Grams? CJEU to Clarify the Meaning of ‘Liquid Products’ under the FIR

It could be so simple: Article 23(1) of Regulation (EU) No 1169/2011 on the provision of food information to consumers (Food Information Regulation, FIR) provides that the net quantity of a food shall be expressed using litres, centilitres, millilitres, kilograms or grams, as appropriate:

• in units of volume in the case of liquid products; and
• in units of mass in the case of other products.

In practice, however, this poses considerable challenges for food businesses, at least in Austria: Which products are “sufficiently liquid”, and when are they no longer considered liquid?

The Administrative Court for the Austrian region of Lower Austria (Landesverwaltungsgericht Niederösterreich) is seeking clarity and has, for the first time, referred questions to the Court of Justice of the European Union (CJEU) on the interpretation of the term “liquid products” in Article 23(1) of the FIR. The case concerns a chilli sauce whose net quantity was expressed as “435 ml”. The food control authority instead required the net quantity to be expressed in grams.

The CJEU's ruling will be relevant to numerous foods whose classification is currently not considered clear by (Austrian) food control authorities. This applies in particular to sauces and dressings, as well as other viscous or nearly pasty products.

Background

Article 23(1) of the FIR distinguishes between two categories for the expression of the net quantity of a food:

• For liquid products, the net quantity must be expressed in units of volume, namely litres, centilitres or millilitres.
• For other products, it must be expressed in units of mass, namely kilograms or grams.

However, the FIR does not define when a food qualifies as a “liquid product”. Nor is there any relevant CJEU case law to date.

The Case: Chilli Sauce with a Net Quantity of 435 ml

The food business operator in the case at hand sells a prepacked chilli sauce in a plastic bottle. The net quantity on the packaging is expressed as “435 ml”.

Pursuant to Section 39(1) of the Austrian Food Safety and Consumer Protection Act (Lebensmittelsicherheits- und Verbraucherschutzgesetz, LMSVG), the Lower Austrian food control authority ordered the operator to amend the labelling and express the net quantity in grams. It relied on an expert opinion from the Austrian Agency for Health and Food Safety (AGES),

It relied on an expert opinion from the Austrian Agency for Health and Food Safety (AGES), which argues as follows: no liquid product is present

because the texture is viscous. In particular, the net fill quantity for pasty or viscous food products (honey, yogurt, ketchup, ...) is stated by weight, as these substances would not be considered liquid according to Austrian practice. Furthermore, the viscous mass does not flow out entirely upon emptying, whereas this would, in any case, be the case for liquids. The mass is also permeated with seed and plant particles, and the determination of volume by means of measuring devices, e.g. a measuring cup, is not possible, whereas this would be the case for liquids. Also from a chemical and physical point of view, it is not a liquid per definitionem.

The food business operator, on the other hand, argued that the sauce

• did not retain its shape but did retain its volume;
• spread out on a flat plate at room temperature; and
• was also perceived as liquid by consumers.

The appellant therefore requested that the questions be referred to the CJEU.

Consumer Perception or Physical Properties?

The central question in the preliminary ruling proceedings is which standard should be used to distinguish liquid products from other products. The Administrative Court for Lower Austria considers two different approaches possible:

• General consumer perception: The decisive factor would be whether end consumers regard the particular food as liquid. Relevant criteria could include the name of the product, its ingredients, packaging, marketing, use and manner of consumption.
• Objective physical characteristics: The classification would instead depend on properties such as shape and volume stability, viscosity, fluidity, flow behaviour or whether the net quantity can be determined volumetrically.

According to the court, the consumer-protection purpose of the FIR is a strong argument for relying on general consumer perception. The indication of the net quantity is intended to facilitate product comparisons. If the net quantity is expressed using a unit of measurement that consumers would not normally expect for that food, comparability could in fact be impaired.

Objective physical criteria, by contrast, could ensure a more uniform assessment throughout the European Union. Consumer perceptions may differ between Member States. In this context, the court also refers to Directive 76/211/EEC on prepackages, which distinguishes products that do not flow freely from liquid products, among others.

The Questions Referred to the CJEU

In essence, the Administrative Court for Lower Austria asks:

1. whether the meaning of “liquid products” should be determined according to the general perception of end consumers;
2. if so, which criteria are relevant to that perception — for example, the product name, ingredients or presentation;
3. if the first question is answered in the negative, whether objective physical characteristics should be the exclusive or primary criteria;
4. whether the words “in the case of other products” constitute a fallback rule for cases of doubt; and
5. whether the phrase “as appropriate” in Article 23(1) of the FIR relates only to the choice of the specific unit — for example, millilitres rather than litres — or also affects the choice between units of volume and units of mass.

Practical Relevance

The referral to the CJEU concerns far more than the chilli sauce at hand. It potentially affects a wide range of food businesses and products. The Administrative Court for Lower Austria expressly points out that the Austrian food control authorities have even found soy sauces not to be “liquid products”.

The CJEU's ruling will therefore be important for the labelling of numerous products where consistency, flow behaviour and consumer expectations do not all point in the same direction.

For food businesses, the distinction has immediate practical significance. If the authority (or AGES) considers the net quantity to have been expressed incorrectly, this may not only result in an administrative order requiring the labelling to be amended under Section 39(1) LMSVG, but may also lead to administrative penalties for incorrect labelling.

Until the CJEU delivers its ruling, it remains unclear whether the classification of a food will ultimately depend on consumer perception, the product's physical characteristics or a combination of several criteria. Food businesses that remain confident in their own assessment but are confronted with similar administrative orders and/or penalties should challenge them.

Decision

Administrative Court for Lower Austria, 1 September 2026, LVwG-AV-454/001-2026; ECLI:AT:LVWGNI:2026:LVwG.AV.454.001.2026.

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• Austrian Supreme Administrative Court: CBD Oils Are Food
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About Sabadello Legal

Sabadello Legal advises food businesses, direct producers and manufacturers on food law matters, from reviewing and drafting product labelling to regulatory compliance, official control procedures and representation before administrative authorities and administrative courts.

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Disclaimer

This article is for general information purposes only and does not constitute legal advice.