Food imitating products: risks need to be likely, not certain - Get Fresh Cosmetics (Case C-122/21)

by Marta Dzedyshko

We do not often discuss Directive 87/357/EEC on the approximation of the laws of the Member States concerning products which, appearing to be other than they are, endanger the health or safety of consumers (Directive on food imitating products). The main purpose of this Directive was to ensure that children who most easily could mistake various consumer products for foodstuffs if they would resemble them, are protected from risks of suffocation, poisoning etc. 

Recently, the Lithuanian consumer protection authority found it difficult to apply the rules of this instrument and the matter was referred to the CJEU for elaboration (C-122/21). Get Fresh Cosmetics made bath bombs, which could be mistaken for food. However, when the Lithuanian consumer protection authority claimed that they were not compliant with Directive 87/357/EEC, the company demanded proof of not only possible consumers' confusion as to the character of the product but also of dangers that such confusion could bring about. For example, lab evidence as to whether the products could be broken and posed danger of poisoning when placed in mouth, sucked on or swallowed (para 19). This risk was presumed by the authority (para 20) on the basis of the fact that 'cosmetic products are not intended for consumption'.

The question was then what burden of proof this Directive required as to the causal link between the product's characteristics and risks caused by a product that could be mistaken for foodstuff by consumers. Would the consumer protection authority need to collect and present 'objective and substantiated data' of a hazardous nature of the product at stake?

The CJEU does not interpret Directive 87/357/EEC as requiring such a far-reaching burden of proof, whilst simultaneously also not seeing in it a presumption of a hazardous nature of products that appear to be other than they are (para 29, 35). Thus, the Lithuanian consumer protection authority has to substantiate why they think a given product could bring about risks to consumers by resembling foodstuff (paras 40-41). It can, however, do this by other evidentiary means than presenting 'objective and substantiated data', thus instead of certainty of the risk arising it is enough to prove its likelihood (para 45). The assessment should focus on objective characteristics of the product, e.g. materials and composition (para 42), vulnerability of targeted consumers (para 43)

Calls for mandatory labelling of vegetarian/vegan food products

We have previously mentioned a European Citizens' Initiative urging the European Commission to take steps to label the origin of food products ("Eat ORIGINal! Unmask your food" initiative). Today the European Commission decided to register another initiative "Mandatory food labelling Non-Vegetarian/Vegetarian/Vegan' (see news item). 

The idea is for the EU to design and enforce pictorial labels allowing for easy identification of such products across all Member States. As of next week the Commission will start collecting signatures in support of this initiative.

"Eat ORIGINal! Unmask your food" initiative

With the introduction of the Lisbon Treaty EU citizens' empowerment increased due the setting up of the European Citizens' Initiatives. One such initiative has been registered this month - "Eat ORIGINal! Unmask your food". The goal thereof is to ensure that all food products have a mandatory declaration of origin. This could not only better inform consumers on their food products' choices but also aims to protect their health and prevent fraud. The registration of this Initiative is to take place on October 2nd. This will be followed by collection of signatures in support of this project - 1 million is necessary within a year, from at least seven different Member States. If this threshold is achieved then the Commission will need to react to the Initiative. 

More information on this initiative will be available as of Ocobter 2nd! (through these links)

EU Parliament votes on dual quality products

On the 12^th of July the EU Parliament’s Committee on the Internal Market and Consumer Protection (IMCO), voted on the report by Olga SEHNALOVÁ (S&D, CZ) on dual quality of products in the Single Market and endorsed it along with its suggestions for amendments. 

Dual quality of food products between eastern and western states in the EU has come to the attention of the EU Commission since 2009, following complaints from Member States, with President Juncker underlining the need to take action to combat this phenomenon in 2017. 

What exactly is the problem of dual quality of products? The Report which collected evidence from Slovakia, Hungary, Czech Republic and Croatia showed that there are differences in the composition of some products otherwise identical in packaging and brand between western and eastern Member States. While all products were found to be safe to consume, the products sold in Eastern Member States were of lower quality. For example, fish sticks with a lower percentage of fish, biscuits with a lower percentage of chocolate etc. This means that these products were also more unhealthy than their western counterparts. The issue was not unique to food products but similar incidents were reported for cosmetics, pet food and cleaning products.

The Rapporteur underlined that although it is not illegal for brands to customise their products from member state to member state, consumer should be made aware of that and provided with clear information. This phenomenon undermines the trust of consumers in the internal market and creates a divide between west and east and old and new Member States.

The measures suggested to tackle this issue are three-fold.  

1. Improving cross border cooperation and data sharing between national authorities as well as consumer organisations.
2.  Further clarifying the UCPD on ‘dual quality products’, as it is to be amended according to the New Deal for Consumers.
3.  The creation of a new logo by manufacturers to show that their products are the same throughout the EU.

The report will also be put to a vote at the plenary session of the EU Parliament in September and may also have an impact on the reform of the UCPD. The EU needs to send a strong message that there are not two tiers of consumers within the EU.

"Food labels: tricks of the trade" - BEUC's report

On the same day that the Commission announces common methodology on comparing quality of similarly packaged food products, BEUC publishes its report "Food labels: tricks of the trade" on misleading labeling practices in the food sector in the EU (see more Food labels can fool you...). Three practices that have been further elaborated on are:

• labeling products as 'traditional' or 'artisanal';
• displaying fruit pictures on packaging for products that have little or no actual fruit content;
• labeling as 'whole grain' products with barely any fibre.

 The result of consumer confusion and misleading advertising practices may be the result of the lack of EU guidelines in this area of food products' advertising and labeling.

BEUC calls for:

• more definitions on the EU level of commonly used terms on food products' labels, such as 'natural', 'traditional' or 'artisanal';
• setting a minimum level of whole grain content for 'whole grain' claims;
• setting a minimum level of content for ingredients pictured on the front of the pack, e.g. fruits;
• obliging traders to display on the front of the pack the percentage of the advertised ingredient.

These recommendations would not only increase transparency of the composition of food products or facilitate better consumer decision-making, but also provide for a more fair food products' market in the EU.

E.g. the report mentions that while this product has many fruits on the packaging, they are only 2.5% of all ingredients

Quality matters

Today the Commission has published a new common methodology that will allow national authorities to compare the quality of food products across the EU, when they compare the composition and characteristics of these food products (Dual quality of food...). The idea behind this project being that currently similarly branded or packaged food products may differ in composition to an extent that is misleading to consumers, but the comparison between these products as well as the finding of misleading action would differ per Member State, leading to different levels of consumer protection. This common methodology emerged from the activities of the Joint Research Centre (JRC), the European Commission's Science and Knowledge service, which facilitate evaluation of differences in the quality of food products in an objective way.

New EU regulation on organic farming

The Proposal for a new Regulation on organic production and labelling of organic products was approved by the Agricultural Committee of the EU Parliament on 22^nd November.

Organic farming in the EU has increased rapidly over the last years, yet it only represents 6% of the total EU agricultural area (see the background note of the EU Parliament). Therefore, the European Commission wishes to further encourage organic farming in order to reduce the need for imported organic products and increase consumer confidence in the EU. For that reason, the decision was taken to repeal and replace the previous Regulation (EC) No 834/2007 so that the legal framework better corresponds to the changing needs of the sector.

Organic farming plays a dual role, both in meeting the increasing consumer demands for organic products and in promoting sustainable farming. The aim of the new Regulation is to balance promoting sustainable organic farming with the internal market meaning promoting consumer interests as well as the interests of EU farmers.

Some of the key changes introduced by the new Regulation include that in the future imported organic goods will have to comply with EU rules on organic products rather than equivalent standards. The stricter standards for imported goods are meant to translate to increase consumer confidence in organic produce. That rule will apply after 2025, following a transitionary period of 5 years.

Avoiding contamination of organic food from pesticides is another important issue as farmers will have to take precautions. Still it will be allowed for farms to combine conventional and organic production provided the two activities are clearly separated. Furthermore, measures will be taken to boost organic production, such as increasing supply of organic food and animals and making it easier for small farms to get organic certification.

The new Regulation is designed to deliver an increased level of consumer trust by ensuring the high quality of products as well as improve the clarity of the information provided to consumers about organic products, in a market where consumers have high expectations.

Yet, the new Regulation, and the benefits it can deliver for consumers, will be only as good as its enforcement. The EU Parliament has been crucial in ensuring that the enforcement procedures are not undermined. It secured that organic farming had its own rules on controls rather than centralising them as the EU Commission envisioned. Furthermore, controls will not be limited to the final product but will happen all throughout the production cycle. 

If the EU Commission is serious about increasing consumer confidence in organic products it needs to be vigilant in supervising the control bodies that offer accreditation.

Who needs a diet when there are taxes?

Recently we mentioned that the fight against obesity is moving to the top of the political agenda of the Member States. Aside new rules on labelling (How to get consumers to eat healthier?), which aim to allow consumers to make more conscious choices (hopefully healthier), there are more political debates as well as attempts to regulate the food market. UK medical circles increasingly argue for food taxation to be introduced (The fight against obesity: To tax or not to tax?). Ireland introduced a 'soda tax' following on the French example. However, other news (The 'nanny state' in consumer health needs to go) report on the failed experiment with a 'fat tax' in Denmark. This tax was repealed within 15 months from its introduction due to no reported beneficial impact on consumer health, but rather noticed trend of lower income consumers switching to cheaper and potentially even more rich in fat food. It is not easy - trying to get consumers to make all the 'right' choices - but it is encouraging to see that various policymakers are trying various methods to improve consumer wellbeing. From the research perspective - the comparison of the different policies adopted by various Member States may provide the winner, i.e. the most effective policy measure in this area.

How to get consumers to eat healthier?

As obesity is becoming a bigger health issue in Europe with every year, policymakers are paying more attention to consumers' shopping and eating habits. The ideal of an informed consumer making best possible (which should also mean the healthiest possible) choices is still alive. The discrepancy between this ideal and the reality could result from consumers' not being properly informed, e.g. from the nutritional information not reaching them or being too difficult for them to understand. To solve the first issue (hidden information), nutritional labels could be placed front-of-pack on food products. This is not a novel idea, as previously commissioned by European legislators' studies have already suggested an increased effectiveness of nutritional labelling if the position of the label is at the front of the packaging. The European legislator was not, however, ready to oblige traders to adjust their labelling policies to this extent. The second issue (too difficult labels) could be tackled by simplifying labelling - adopting colour-coding (traffic lights scheme) or other visual shortcuts to better inform consumers. 

The French government has just backed such a nutritional labelling system (Nutri-Score - read more here). The decree doesn't prescribe but rather leaves an option to the traders to adopt the recommended labelling system, which requires nutritional label to be placed on the front of the package and uses colours (green to orange) and letter symbols (A-E - like with washing machines) to inform consumers on 'better' food choices. This is not the first time such an experiment was undertaken by national policymakers, see e.g. the Dutch experience with Vinkje logo (see for an example of this logo on the picture on the left) (to read further on the Vinkje logo see here in Dutch). The Dutch abandoned this labelling system as it was seen to mislead consumers - the 'better' food choices could have been perceived for 'good' choices. It will be interesting to observe the impact that the French labelling change will have on marketing practices and consumer behaviour, as the French policymakers hope to encourage the European ones to further act on this issue.

The other option to help consumers take healthy food decisions is for the policymakers to regulate the food market. This week it was also reported that the Scottish government is considering restrictions on promotion of unhealthy food and drink (see here). For example, such promotions would be prohibited on routes leading to schools or around visitor attractions, where they could easily attract children attention or on TV before 9pm.

Towards stricter standards for endocrine disruptors

On 4^th October, the European Parliament issued an objection to the Draft Commission regulation amending Annex II to Regulation (EC) No 1107/2009 by setting out scientific criteria for the determination of endocrine disrupting properties. The European Parliament took issue with the last paragraph of the Draft Regulation, which allowed for excluding a substance with an intended endocrine mode of action from being identified as an endocrine disrupter for non-target organisms. According to the European Parliament, this exception was not based on scientific criteria as required by the Court; instead, the EU Commission took into account other criteria such as economic ones, thereby exceeding its implementing powers.

Endocrine Disrupting Chemicals (EDCs) are an exogenous substance or mixture that alters function(s) of the endocrine system and consequently causes adverse health effects in an intact organism. They are widely used and can be found in food and in a variety of consumer products, including toys and cosmetics. Even though the study of the effects of EDCs is ongoing, there are numerous studies showing the association between EDCs and human diseases, ranging from reproductive and endocrine to autoimmune and cardiopulmonary (see e.g. on World Health Organisation's website). Children are particularly vulnerable and their exposure to EDCs is linked to increased incidences of reproductive diseases, endocrine-related cancers, behavioural and learning problems amongst others.

Given that EDCs pose a real threat to the health of consumers and especially children, it is imperative that they are effectively regulated. The EU is leading the way in regulating EDCs, as it is in the process of adopting legally binding criteria to determine what is an endocrine disruptor, something that no country has done so far (see Commission's communication).

When regulating endocrine disruptors consumers' health and protection of the environment are the priority rather than the internal market. This was the message sent by the European Parliament to the EU Commission which now has to modify and resubmit the Draft Regulation. This development was welcomed also by BEUC, which urged for higher standards in relation to EDCs.

In anticipation of the EU Commission’s revised Draft Regulation, it is reassuring that its new direction will be towards a stricter standard for regulation of endocrine disruptors to the benefit of consumers.

Guidelines on food products of dual quality published (though mainly on the UCPD)

Remember Jean-Claude Juncker's State of the Union address? Not too many probably recall that it also referred to some consumer issues, which, admittedly, are less captivating than broad institutional reforms. One of the consumer topics which made its way to the speech and has also attracted a fair deal of media attention is the apparent divergence in the quality of some products sold under the same brand in different Member States. The issue appears to particularly affect the CEE food markets, where prices are also comparably lower. Earlier this week, the Commission published a Notice on the application of EU food and consumer protection law to issues of dual quality of products in the food sector. The notice contains guidelines aimed to help national authorities in their assessment, carried out on a case-by-case basis, whether marketing and sale of double quality products is in line with EU law. 

Here are the main take-aways:

• Business operators are generally free to market and sell goods with different composition or characteristics in different countries - also under the same brand. The problem arises when  the marketing of identically branded goods of different quality is liable to mislead consumers.
• The notice theoretically covers three acts - General Food Law Regulation No 178/2002, Food Information Regulation No 1169/2011 and Unfair Commercial Practices Directive 2005/29/EC - but in fact only elaborates on the latter. This is somewhat perplexing given that Food Information Regulation provides not only for a set of information duties, but also for a general principle according to which food information must not be misleading. Further notice on this particular act is expected to follow shortly.
• To give it credit, the Commission attempts to explain the interplay of the UCPD with food law to some extent. It cites the lex specialis principle set out in Article 3(4) of the UCPD, according to which in the case of conflict between the Directive and other EU rules regulating specific aspects of unfair commercial practices, the latter shall prevail and apply to those specific aspects. It further recalls that information required by sector-specific law in relation to commercial communications is considered "material" under the UCPD. This, of course, also applies to the information requirements set out in the Food Information Regulation. The omission of this information is thus considered misleading to the extent that it is likely to affect the transactional decision of the average consumer (e.g. cause him or her to buy a product that he or she would not have bought otherwise). The interplay of the UCPD with Article 7(1) of Food Information Regulation is not clarified, though.
• The notice goes on to explain that also where all required information particulars are provided, the marketing of goods with the same packaging and branding but with different composition and sensory profile can be contrary to the Directive. This can be the case when it is demonstrated that:
• consumers have legitimate specific expectations from a product compared to a "product of reference" and the product significantly deviates from these expectations;
• the trader omits or fails to convey adequate information to consumers and they cannot understand that a difference with their expectations may exist;
• this inadequate or insufficient information is likely to distort the economic behaviour of the average consumer.
• Overall, the relevant assessment can be summarised as follows:

Flowchart included in the Commission Notice

• Competent authorities (i.e. national authorities responsible for food law and for consumer protection, if they are separated, as well as competent authorities from different Member States) should cooperate with each other. As regards cross-border cooperation, enforcement efforts should be coordinated under the CPC framework (pursuant to Regulation No 2004/2006, currently under review).
• Parallel EU-level actions include: 1) dialogue with the industry, consumer organisations and national authorities, 2) exploring possibilities of improving transparency and clarity of the exact content of food products (with a code of conduct for producers as one of envisaged options) and 3) developing guidelines for a common testing methodology to gather evidence and facilitate the assessment of particular cases.

Let's see whether this set of measures will ensure that Slovaks get more "fish in their fish fingers", Hungarians more "meat in their meals", and Czechs more "cacao in their chocolate". Or at least more transparency on each of those vital matters!

CJEU in TofuTown: if it doesn't come from a cow, it can't be milk

Soy milk, soy cream, soy cheese: all these names come forward relatively frequently on European markets. According to a decision issued by the the CJEU yesterday (C-422/16, BSV v TofuTown.com GMBH), however, all these products are currently being marketed under names that do not meet the requirements of EU law. To understand why, let us take a step back. 

In the main proceedings, a German association had sued a company producing vegetarian and vegan foodstuff claiming that it infringed German rules on unfair competition by not respecting EU food regulations. 

In particular, the company traded several vegetal products using names mainly associated with dairy products, such as "cream", "milk", and so on. The usage of these terms, however, is restricted under EU law, namely Regulation 1308/2013, to "normal mammary secretion obtained from one or more milkings" - in other words, animal products. In turn, names which designate dairy products - such as cream, butter, cheese - are in principle only to be used for products based on animal milk. A very limited set of exceptions, listing names of products traditionally using milk-related names in the Member States, is adopted by means of Commission decision 791/2010. This lists features products such as "coconut milk", "horse-radish cream" and other country-specific words - with separate sections for each language.

The defendant company, however, claimed that allowing a broader understanding of the exception, which would allow the use of diary-related words for soy and other vegetable products, would be in line with the objectives of the Regulation. According to this argument, 

"the way in which consumers understand those designations has changed massively in recent years, and that it does not use terms such as ‘butter’ or ‘cream’ in isolation, but always in association with words referring to the plant-based origin of the products concerned, for example ‘Tofu butter’ or ‘Rice Spray Cream" (para 17).

The CJEU did not really engage with the submission, rather reasoning on whether an interpretation that would not allow such a reading would itself go against the Regulation's purposes. According to the court, it would not. 

"As is clear from recitals 64 and 76 of that regulation, the objectives pursued by the provisions at issue consist, in particular, in improving the economic conditions for the production and marketing as well as the quality of such products. The application of such standards is therefore in the interest of producers, traders and consumers, to protect consumers and to maintain conditions for allowing competition. Those provisions, in so far as they provide that only the products which comply with the requirements they lay down can be designated by the term ‘milk’ and the designations reserved exclusively for milk products even if those designations are expanded upon by explanations or descriptions such as those at issue in the main proceedings, contribute to the attainment of those objectives." (para 43)

The limitations, according to the court, are necessary for a proper identification of actual milk-based products. Without such limits, both consumers and producers of milk would be harmed. The contextual use of "clarifying or descriptive terms indicating the plant origin of the product at issue" is not sufficient to circumvent the restrictive rules of the Regulation (see also para 31).

In essence, the CJEU saw no reason to investigate whether in the case at stake a risk of confusion existed, either by using an "average consumer" test or otherwise. The Court simply considered itself bound by the list detailed in the Commission's decision of 2010, especially in light of the fact that the Commission would be able to revise such decision with relatively minor troubles.

The Court also briefly considered whether major complaints could be raised against the Regulation under the principles of proportionality and equal treatment. As to proportionality, the analysis remarked that the EU legislator enjoys wide discretion in matters of agricultural markets regulation, due to the broad mandate it enjoys under the Treaty.  Concerning equal treatment, and in particular the different approach to producers of non-dairy replacements for animal products (eg veggie burgers), the Court observed that different sectors show different concerns and thus equal-treatment here cannot be invoked to require different situations to be treated equally.

Producers in several member states will now likely have to change their labelling and marketing practices, and/or massively lobby the Commission for amendments to its 2010 decision.