Commission Notice on dual quality of food products

The free movement of safe and healthy food is an essential element of the EU internal market in food products. Key actors in this market are consumers and food business operators. The former must always be able to choose the food product of their choice after receiving correct, neutral and objective information, while the latter are free to produce and sell within the EU their food products with different characteristics or composition, as long as they comply with the existing legal requirements. Hence commercial practices that mislead the consumers and create unequal conditions of competition are prohibited.

The dual food quality problem was first raised by the national food safety authorities of certain Central and Eastern European Member States (Czech Republic, Hungary, Poland and Slovakia). According to them, consumers coming from the aforementioned countries complained that the quality of specific products sold and marketed within the EU under the same trademark is lower in their home countries than in others. They invoked studies of the Czech agriculture and food inspection authority that demonstrate differences in the content and quality of the food products concerned. Examples reported included fish fingers with lower fish content, biscuits with added palm oil and sugary drinks with twice as much sugar than in the Western EU Member States.

Food business operators claimed that they reduced the most expensive ingredients to keep food prices affordable and to protect their profit margins in Central and Eastern EU countries for two reasons; their incomes continue to be lower than in Western Europe, and they remain conditioned by Communist-era shortages that long preferred quantity over quality.

For this reason, the European Commission adopted on 26 September 2017 a Notice on the application of EU food and consumer protection laws to dual food quality products. The measure, which aims to assist the relevant national enforcement authorities in identifying misleading marketing practices in the Food Supply Chain area, had been already announced in Commission President Juncker's State of the Union address earlier in September.

The present briefing aims to examine the key elements of the Notice and present the next steps expected in the near future.

Rationale behind the EU strategy on dual food quality

National food safety and consumer protection authorities are entitled to ensure compliance with EU consumer acquis and properly enforce the European Food Safety legislation at national level. However, the Commission is dedicated to support the national authorities by assisting them with the necessary guidance. The Notice, as a soft law measure with no binding force, defines the EU legislative framework that enables the national authorities to ensure a proper enforcement of the relevant EU Food and Consumer Protection rules.

Identifying Misleading Food Marketing Practices

A. Checking compliance with EU legislation

(1) Food Law requirements

Article 8 of Regulation (EC) No 178/2002 on the general principles and requirements of food law identifies the protection of consumers' interests and the prevention of misleading practices as one of the main objectives of food law. In the same way, Article 16 of the same Regulation prohibits food labelling, advertising and presentation practices (including the shape, appearance or packaging of the product) that could mislead consumers.

In addition, Regulation (EU) No 1169/2011 on the provision of food information to consumers prohibits the use of misleading information about the characteristics of the food, including information as to its nature, identity, properties, composition, quantity, durability, country of origin or place of provenance, and method of manufacture or production.

Article 7 (1) of the same Regulation outlines the fair information practices, while Article 8 establishes the responsibilities of the relevant food business operators for the food information.  According to the latter:

• Food business operators shall ensure the presence and accuracy of the food information;

• Food business operators shall not modify the information accompanying a food product if such modification would mislead the final consumer.

Finally, Article 9 of the Food Information Regulation lists mandatory information that needs to be indicated on the food product and includes, among others, the name of the food, the list of ingredients, the net quantity of the product and a nutrition declaration. All the mandatory elements that need to be labelled on the food products, should be clearly stated according to the specific requirements for presentation of mandatory information and minimum font size.

(2) Consumer Protection Law requirements

In terms of Consumer Rights Legislation (Directive 2005/29/EC), misleading commercial practices, including misleading advertising, are unfair practices, either actions or omissions, resulting in distortions of competition and obstacles to the effective functioning of the internal market.

More specifically, a commercial practice is misleading "if it contains false information and is therefore untruthful, including overall presentation, deceives or is likely to deceive the average consumer, even if the information is factually correct, in relation to the main characteristics of the product, such as its execution, composition, method of manufacture, fitness for purpose, usage, quantity and price".

Considering its interplay with food law, Article 7(5) of the abovementioned Directive, read in conjunction with the provisions of Food Information Regulation, lays down that food law information requirements related to commercial communication, including advertising or marketing of the products concerned, are considered material and therefore should be provided to consumers. Failure to do so is considered a misleading commercial omission and should be prohibited.

In addition to the current EU legislation, the EU Court of Justice ruled in Bundesverband e.V. v Teekanne GmbH & Co. KG, C-195/14, that the consumer must not be misled and induced to believe, incorrectly, that a specific food product has a quality, which is different from the genuine quality guaranteed by the label displayed on the packaging of the product.

B. Case-by-case analysis

The enforcement authorities need to follow a step-by-step approach in order to conclude that a specific commercial practice is unfair and therefore illegal. The following criteria should be met cumulatively:

(1) Consumers should have specific expectations from a product compared to a “product of reference” and the product must not significantly deviate from these expectations.

 “Product of preference” is defined by the Commission in its Notice as:

  • A product marketed under “the same packaging and branding” in several Member States;
  • A product sold in the majority of those Member States with a given composition.

In addition, the consumers’ perception of the main characteristics of the product should correspond to the composition of that product as advertised in the majority of those Member States.

The national enforcement authorities might consider performing market tests that involve product comparisons across different regions and countries. Such tests should be carried out with the expected common testing approach on which the Commission is currently working.

(2) The trader omits or fails to convey adequate information to consumers and they cannot understand that a difference may exist compared to their expectations.

(3) This inadequate or insufficient information is likely to distort the economic behaviour of the average consumer by leading him or her to buy a product he or she would not have bought otherwise.

Next Steps

The Notice is part of the Commission's overall strategy against unfair commercial practices in the area of food. The Commission is scheduled to present the Notice to the European Parliament Committee on the Internal Market and Consumer Protection on 11 October 2017.

Other soft law measures expected to be adopted in the near future and complementing the strategy are the following:

  • The European Commission's Joint Research Centre's guidelines on a methodology for investigating whether the quality of certain food products is lower in some Member States than in others. The Commission is expected to launch a Network on Dual Food Quality with representatives of the national authorities, consumer and industry associations in October 2017 in order to discuss the measure, which is expected to be adopted in early 2018.
  • A Code of Conduct for producers to establish mandatory transparency standards for the composition of food products. The Commission will organise workshops with national food safety and consumer protection authorities in November 2017 in order to have an exchange of views on the measure that is expected to be published by the end of 2017.

The Commission’s Notice was already welcomed by Slovakia as “a first step to solve the problem”, emphasising the need to put sufficient pressure on the producers, which it was not sure the Notice would allow.

Additional facts

  • Commission Notice on the application of EU food and consumer protection law to issues of Dual Quality of products - The specific case of food C(2017)6532
  • Judgment of the Court (Ninth Chamber), 4 June 2015 Bundesverband der Verbraucherzentralen und Verbraucherverbände - Verbraucherzentrale Bundesverband e.V. v Teekanne GmbH & Co. KG Request for a preliminary ruling from the Bundesgerichtshof— Directive 2000/13/EC — Labelling and presentation of foodstuffs — Articles 2(1)(a)(i) and 3(1)(2) — Labelling such as could mislead the purchaser as to the composition of foodstuffs — List of ingredients — Use of the indication ‘raspberry and vanilla adventure’ and of depictions of raspberries and vanilla flowers on the packaging of a fruit tea not containing those ingredients C-195-14