The labeling of a product is one of the most important forms of marketing. The customer is supposed to receive information about the product through the package design and decide to purchase the product. Creative and unique elements as illustrations and slogans are readily used for this purpose. The labeling may not end in a misleading of the consumer, however.1
1. The “Felix Himbeer-Vanille Abenteuer”
This happened to Teekanne with its “Felix Himbeer-Vanille Abenteuer” tea. Raspberries and vanilla flowers illustrated on the package are supposed to indicate the flavors of the tea.
Such ingredients were, however, not contained in the tea according to the list of ingredients.
On June 04, 2015 the European Court of Justice decided that it is misleading if ingredients were illustrated on a product, which the product does not actually contain.
Up to now it was recognized that consumers read the list of ingredients, if they make their decision to purchase dependent upon the ingredients contained – thus a misleading of the consumer could have been prevented by the illustrated list of ingredients. Now the European Court of Justice has decided, however, that the illustrated list of ingredients could not prevent a misleading of the customer. Rather, the overall impression of the labeling is decisive.
Whether the overall impression of the labeling produces a misleading had to be finally decided by the German Federal Court of Justice. To determine the overall impression any detail presented on the package design has to be included. On December 02, 2015 the German Federal Court of Justice decided, that the consumer is misleaded, because the eye-catching information on the package design indicate the existence of vanilla and raspberry ingredients.2
2. Labeling – but how?
What does this mean for the limits of permitted labeling, however? When in particular does lawful labeling exist?
a) Mandatory Details
A lawful labeling must without fail contain mandatory details. The most important mandatory details result from the German Food Labeling Directive (“LMKV” – Lebensmittelkennzeichnungsverordnung) and the Food Information Regulation (Regulation (EU) 1169/2011). The mandatory details include among other things the name under which the product is sold, the list of ingredients, the sell-by date and in the case of confectioneries the presence of glycyrrhizinic acid. In addition, the list of ingre- dients must highlight allergens, for example, in bold type. The minimum font size for mandatory details is 1.2 mm or 0.9 mm.
b) Advertising with nutritional- and health-related Details
Since the Health Claims Regulation (Regulation (EC) 1924/2006) special provisions apply to nutritional- and healthrelated details, which for advertising purposes are voluntarily indicated on the package design. For example, terms such as “sugar-free” or “low-fat” may only be used, if the products have certain properties. Moreover, a nutritional table must be represented in a specific form (see Appendix XV of the Food Information Regulation).
So far Teekanne has still correctly labeled its “Felix Himbeer- Vanille Abenteuer” tea. In addition to the provisions mentioned the labeling of a foodstuff, however, may also not mislead the consumer. This is regulated in Section 11(1) sentence 1 German Food and Feed Code (“LFGB” – Lebensmittel- und Futtermittelgesetzbuch) in conjunction with Art. 7 Food Information Regulation. A detail is misleading, if it produces the effect of an inaccurate detail and conveys an incorrect Impression.
3. Basis for the assessment of a misleading
Case law evaluates a misleading by means of the expectation of the average consumer, to whom the advertising is directed, as being one who is reasonably well informed and reasonably situationally observant and circumspect. How this average consumer will understand the details is decisive.
On the basis of such an assessment the European Court of Justice came to the conclusion in “Felix Himbeer-Vanille Abenteuer” that the labeling is misleading because the ingredients illustrated were not contained in the product.
In the case law, the individual case has to be considered. Therefore, a labeling cannot occur solely on the basis of one decision issued. As already explained above, it was recognized, for example, before the decision of the European Court of Justice that consumers, who make their decision to purchase according to the ingredients, read the list of ingredients. In this view the labeling of the tea would not have been misleading.
Thus, the case law can only give indications for the assessment of the suitability of the labeling to be regarded as deceptive. With the final assessment it must always depend on the overall impression of the labeling
The labeling must contain the mandatory ingredients. Furthermore, it may not mislead the consumer. Whether there is a misleading must be assessed on the basis of an average consumer.
After the new decision of the European Court of Justice on the “Felix Himbeer-Vanille Abenteuer” special caution in this connection is advisable with respect to labeling, if reference should be made only to a flavor and the ingredient illustrated is not contained in the product.
1 European Court of Justice, decision of 06/04/2015, C-194/14
2 BGH, Decision of 2/02/2015, I ZR 45/13