This is not (Belgian) chocolate. When does chocolate qualify as “Belgian chocolate”?

21 July 2010

Isabelle Dupuis, Nicolas Carbonnelle

Our Brussels office is regularly consulted to give advice on the labelling of products allegedly constituted or composed of chocolate. A recurrent issue is to assess whether the product submitted to our review may be presented as being or containing “chocolate”.

The use of the word “chocolate” has been regulated and harmonised at European level since 2000 by Directive 2000/36, relating to cocoa and chocolate products intended for human consumption (hereafter “the Directive”). The Directive lays down definitions and common rules in respect of the composition, manufacturing specifications, packaging and labelling of cocoa and chocolate products with a view to ensure their free movement within the Community.

According to the Directive, certain product names such as “chocolate”, “milk chocolate”, “Gianduja”, “white chocolate”, etc. are reserved for products that comply with the specifications laid down in the Directive as to the composition of said products. For instance, the product name “chocolate” can only be used in the labelling/packaging of a product if said product is obtained from cocoa products and sugars and contains not less than 35% total dry cocoa solids, including not less than 18% cocoa butter and not less than 14% of dry non-fat cocoa solids.

Chocolate is an economically and politically sensitive issue in Belgium. Belgian chocolate has indeed benefited for years from a reputation of high quality in Belgium and in other countries. In this regard the Directive was a clear levelling of the quality standards for chocolate products in general.

It therefore resounded like a thunderbolt in the blue Belgian sky, because it forces Member States to allow the addition of certain vegetable fats other than cocoa butter to “chocolate” products, up to a maximum of 5%, while the product still can be named “chocolate”.

In this context, the question of the use of the denomination “Belgian chocolate” became particularly sensitive. Some producers can indeed be tempted to take a free ride on the reputation of quality attached to Belgian chocolate, but they should be careful not to mislead the consumer as to the quality of the product sold when doing so. Such attempts have been recently denounced in the press by consumer organisations.

The problem is that there is no specific legislation or label actually protecting the indication “Belgian chocolate”. Likewise, there exists no regulation governing the reference made to Belgium in relation to chocolate products through the use of drawings, reference to famous Belgian characters, symbols, buildings or landscapes, etc.

In 2000, the Belgian Federal Government attempted to create a label for Belgian chocolate with strict quality and manufacture criteria to comply with (such as to contain 100% cocoa butter). The “AMBAO” label has been registered as a collective trade mark with the Benelux Trademark Office and the OHIM but it appears that the project never really took off in practice.

The only legal standard that could be applied by a judge is whether the reference made to Belgium in the labelling/packaging or advertising of the chocolate product could be considered as misleading pursuant to the recently revised Belgian Act on Unfair Trade Practices.

In this assessment, we believe that a judge could take into consideration the criteria set out in the “Belgian chocolate code” established by the CHOPRABISCO association (hereafter “the Code”). CHOPRABISCO is the Royal Belgian Association of the Chocolate, Praline, Biscuit and Candies Industry. It counts over 100 members, ranging from small SMEs to multinational companies. With a view to prevent the dilution of the “Belgian chocolate” designation and of the reputation of quality linked to it, CHOPRABISCO developed the Code, which is in fact a convention that can be signed by any company wishing to abide by the principles and requirements set out in it.

In a nutshell, the Code provides that the designation “Belgian chocolate” can only be used for the labelling, packaging and publicity of products which cumulatively (i) comply with the specifications of Directive 2000/36 and (ii) are manufactured in Belgium (which implies at least that the mixing, refining and conching processes are performed in Belgium). Such products can also use the denomination “Belgian style”, “Belgian collection”, “Belgian recipe”, “Belgian tradition” on their packaging. In the same vein, the use of Belgian geographic denominations, typical Belgian symbols (e.g., national flag), landscapes, buildings (e.g., the Atomium), characters (e.g., Manneken Pis, Tintin or Royal Family) or any other drawings that can be perceived as typically Belgian by the consumer is admitted for the products complying with requirements (i) and (ii).

By contrast, the Code prohibits the use of these denominations and reference to Belgium for products which do not qualify as “Belgian chocolate”. By way of exception, a product for which it is possible to demonstrate historical links with Belgium can use the denomination “Belgian flavour”, “Belgian tradition”, “Belgian recipe”, “Belgian style”, but only at the back of the packaging and provided that it does not give to the consumer the false impression that the product actually originates from Belgium.

The Code also provides that the Members and CHOPRABSICO shall take all appropriate measures against third parties who use on their packaging or in their advertising any misleading verbal or figurative indications referring to Belgium. This includes, where appropriate, initiating legal actions.

In conclusion, the use of any reference to “chocolate” and to “Belgian chocolate” in particular should be carefully reviewed. Not only the competitors but also consumer and industry associations are closely monitoring these references, looking for wrongdoers, and will denounce or even prosecute against these violations. The protection of reputation of our famous Belgian pralines is probably worthwhile, but as Belgians we might have a distorted view on the subject…