Food Labelling

In the course of appeal proceedings, the Regional Administrative Court of Burgenland^[i] examined two aspects of the Austrian Food Safety and Consumer Protection Act (LMSVG) in detail: misleading labelling, and the positioning of best-before date and storage condition information on packaging.

Background

Two products were the subject of the complaint. The first was a "Truffle Dessert", in respect of which the first-instance authority objected to the best-before date and storage conditions being printed on different sides of the packaging. The second was a product called "chocolate-coated RASPBERRY sticks", where the same issue arose regarding the positioning of the best-before date and storage conditions on separate sides of the packaging. In addition, the authority took issue with the fact that the product — contrary to the images on the packaging and its name — contains no raspberries whatsoever. In the authority's view, the overall presentation of the product was therefore liable to mislead consumers.

At first instance, the authority ordered the appellant to adapt the labelling of both products.

The appellant argued that the mere depiction of a fruit on the packaging does not, in itself, create a risk of misleading consumers, since the ingredient list makes it clear that raspberries are not part of the product. Furthermore, a clarifying statement on the packaging indicated that the product consisted of "jelly sticks with raspberry flavour."

With regard to the storage conditions, the appellant submitted in her appeal that stating storage conditions is merely a voluntary indication — on the basis that no special storage conditions are required to achieve the declared shelf life. There is therefore, in general, no legal obligation for chocolate manufacturers to state storage conditions, making any reference linking them to the best-before date equally unnecessary.

Decision

On the question of the potential to mislead consumers as to the ingredient raspberry, the court followed the expert opinion of the AGES: taken as a whole, the product's overall presentation conveyed to consumers the impression that at least some fruit content must be present. As the Court of Justice of the EU had already held in the "Teekanne" judgment,^[ii] the inclusion of an ingredient list is not sufficient to prevent the remaining product presentation from misleading consumers. In that judgment, the CJEU stated that it is for national courts to examine all the components of the labelling as a whole in order to determine whether a normally informed and reasonably attentive and circumspect consumer could be misled as to the presence of ingredients or flavourings derived from those ingredients. In conducting that assessment, courts must take into account, among other things:

the terms used
the images used
the placement, size, colour, typeface, language, syntax, and punctuation of the various elements on the packaging

On the positioning of the storage conditions and best-before date, the court acknowledged that, as a matter of principle, only special storage conditions are subject to mandatory disclosure.^[iii] However, contrary to the appellant's submission (that it is common knowledge how to store chocolate), the court followed the expert evidence. This indicated that significant temperature fluctuations — such as those occurring during transport in an overheated vehicle — regularly give rise to quality complaints. Legal commentary^[iv] likewise takes the view that chocolate products should bear the storage instruction "store in a cool place." The appellant herself conceded that refrigerator storage can lead to mould formation.

The court therefore concluded that storage conditions for chocolate products constitute a mandatory disclosure requirement under the Food Information Regulation (FIR). Pursuant to Annex X of the FIR,^[v] which provides that the best-before date must be indicated in the prescribed manner and that "[t]hese indications shall be complemented, where necessary, by a description of the storage conditions which must be observed if the product is to keep for the specified period", both pieces of information must be placed in immediate proximity to each other on the packaging.

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The following articles are in German.

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Sabadello Legal advises and represents manufacturers of food products and food supplements, among other areas. Our clients include food law start-ups as well as established SMEs and international corporations. If you have questions about food law, we would be happy to assist. We advise on food law (LMSVG), labelling and compliance, and product controls — from risk analysis and regulatory communication through to defending against official measures and administrative penalties.

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Disclaimer

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

^[i] LVwG Burgenland E 156/02/2020.003/005 of 25 May 2021.

^[ii] Case C-195/14, Bundesverband der Verbraucherzentralen und Verbraucherverbände – Verbraucherzentrale Bundesverband e.V. v Teekanne GmbH & Co. KG, 4 June 2015.

^[iii] Article 25(1) of the Food Information Regulation, Regulation (EU) No 1169/2011.

^[iv] Decision 156/02/2020.003/005, p. 11, referring to Müller/Wallau/Grube, Taschenbuch der Lebensmittelkontrolle [2016], Chapter XII.

^[v] Annex X (Best before date, use by date and date of freezing) to Regulation (EU) No 1169/2011 of the European Parliament and of the Council of 25 October 2011 on the provision of food information to consumers, amending Regulations (EC) No 1924/2006 and (EC) No 1925/2006 of the European Parliament and of the Council, and repealing Commission Directive 87/250/EEC, Council Directive 90/496/EEC, Commission Directive 1999/10/EC, Directive 2000/13/EC of the European Parliament and of the Council, Commission Directives 2002/67/EC and 2008/5/EC and Commission Regulation (EC) No 608/2004.

Raspberry-Free Raspberry Dessert – Misleading Labelling