On 4 June 2015, the Court of Justice of the European Union (the "ECJ") ruled on a request for a preliminary ruling from the German Supreme Court (Bundesgerichtshof) regarding the misleading labelling of foodstuffs (Case C-195/14, Bundesverband der Verbraucherzentralen und Verbraucherverbände – Verbraucherzentrale Bundesverband e.V. v. Teekanne GmbH & Co. KG).
Under Article 2(1)(a)(i) of Directive 2000/13/EC of 20 March 2000 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs (the "Labelling Directive"), the labelling and methods used must not be such as to mislead the purchaser to a material degree, especially as to the characteristics of the foodstuff and, in particular, as to its nature, identity, properties, composition, quantity, durability, origin or provenance, method of manufacture or production. Under Article 3(1)(2) of the Labelling Directive, an indication of the list of ingredients is compulsory. The Labelling Directive was repealed, with effect on 13 December 2014, by Regulation 1169/2011 of 25 October 2011 on the provision of food information to consumers (the "Food Information Regulation"). However, Articles 2(1)(a)(i) and 3(1)(2) of the Labelling Directive correspond to Articles 7(1)(a) and 9(1)(b) of the Food Information Regulation.
The request for a preliminary ruling was made in the context of a dispute between the German company Teekanne GmbH & Co. KG ("Teekanne"), which markets a fruit tea under the name "Felix Himbeer-Vanille Abenteuer" (Felix raspberry and vanilla adventure), and a German consumer protection association ("BVV"). BVV had brought an action against Teekanne claiming that the items on the tea's packaging (depictions of raspberries and vanilla flowers; text referring to natural flavouring and raspberry-vanilla taste) mislead the consumer as to its contents (the tea does not contain vanilla or raspberry or even natural flavourings of the same taste). The case ended up before the German Supreme Court, which in turn stayed the proceedings and questioned the ECJ on whether it is permissible for the labelling, presentation and advertising of foodstuffs to give the impression that a particular ingredient is present, even though it is not and this is apparent solely from the list of ingredients.
The ECJ held that even if a list of ingredients is correct and comprehensive, it would, in some situations, be incapable of correcting the consumer's erroneous or misleading impression concerning the characteristics of the foodstuff that stems from the other items comprising its labelling (breach of Article 2(1)(a)(i) of the Labelling Directive).
The ECJ went on to state that it is for the referring court to carry out an overall examination of the various items comprising the tea's labelling in order to determine whether an average consumer who is reasonably well-informed, and reasonably observant and circumspect, may be misled by them. The ECJ emphasised that the referring court must, in particular, take into account the words and depictions used as well as the location, size, colour, font, language, syntax and punctuation of the various elements on the packaging.
The ECJ therefore concluded that Articles 2(1)(a)(i) and 3(1)(2) of the Labelling Directive must be interpreted as precluding the labelling of a foodstuff and methods used for the labelling from giving the impression, by means of the appearance, description or pictorial representation of a particular ingredient, that that ingredient is present, even though it is not and this is apparent solely from the list of ingredients on the foodstuff's packaging.
The ECJ would have reached the same conclusion under the present Food Information Regulation since it contains provisions that mirror the pertinent provisions of the Labelling Directive.
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