Belgium: Misleading appearances are not the Court of Justice’s cup of tea

03 July 2015

Nicolas Carbonnelle, Jean-Christophe Troussel

On 4 June 2015, the Court of Justice of the European Union ("CJEU") delivered its ruling on misleading labelling in case C-195/14, Bundesverband der Verbraucherzentralen und Verbraucherverbände - Verbraucherzentrale Bundesverband e.V. ("BVV") v Teekanne GmbH & Co. KG ("Teekanne"), following a reference from the Bundesgerichtshof (German Federal Court).

The CJEU confirms and further develops its case law on food labelling, and provides extensive guidance on the elements that need to be taken into account when assessing the misleading character of a label.

Background

The case concerned fruit tea marketed under the name 'Felix Himbeer-Vanille Abenteuer' ('Felix raspberry and vanilla adventure'). The packaging of the product comprised a number of elements of various sizes, colours and font, such as depictions of raspberries and vanilla flowers, the indication 'fruit tea with natural flavourings' and a seal with the indication 'only natural ingredients' inside a golden circle.

BVV first brought an action before the regional court of Düsseldorf, alleging that the 
items on the fruit tea's packaging misled the consumer with regard to the tea's actual contents. BVV succeeded on that claim and so Teekanne appealed to the Higher Regional Court of Dusseldorf. That Court then held that, taking into account the expectations of the average consumer, it was clear from the list of ingredients printed on the packaging that the natural flavourings used have the taste of raspberry or vanilla, whilst not being obtained from vanilla and raspberries.

The decision of the Higher Court was in line with previous case law of the CJEU, in particular cases C-51/94, Commission/Germany and C-465/98, Darbo, where the Court held that consumers whose purchasing decisions depend on the composition of the products in question will first read the mandatory list of ingredients.

BVV further appealed to the German Federal Court. Taking into account all elements of the packaging, the German Federal Court was of the opinion that the proceedings should be stayed and the following question be referred to the CJEU for a preliminary ruling : "Is it permissible for the labelling, presentation and advertising of foodstuffs to give the impression, by means of their appearance, description or pictorial representation, that a particular ingredient is present, even though that ingredient is not in fact present and this is apparent solely from the list of ingredients provided for under Article 3(1)(2) of Directive 2000/13/EC?"

Findings

To assist the German Court the CJEU first summarized the established case law as follows:

  • that the consumer needs to have correct, neutral and objective information that does not mislead him1;
  • that in order to assess whether any labelling is likely to be misleading, due account must be taken of "the presumed expectations, in light of that labelling, which an average consumer who is reasonably well informed, and reasonably observant and circumspect has, as to the origin, provenance, and quality associated with the foodstuff, the critical point being that the consumer must not be misled and must not be induced to believe, incorrectly, that the product has an origin, provenance or quality which are other than genuine2" ; and
  • that it can be considered that consumers whose purchasing decisions depend on the composition of the products in question first read the mandatory list of ingredients3.

The CJEU noted that under its legal definition, 'labelling'4 is composed of any words, particulars, trade marks, brand name, pictorial matter or symbol relating to a foodstuff and placed on its packaging.

The CJEU then held, that in case some of the items on the packaging are misleading, erroneous, ambiguous, contradictory or incomprehensible, then a correct and comprehensive list of ingredients may not be capable of sufficiently correcting the consumer’s erroneous or misleading impression concerning the characteristics of a foodstuff that stems from the other items comprising its labelling5.

Whilst the CJEU leaves it to the German Federal Court to assess in practice whether that is the case for the flavoured tea in issue, paragraph 43 of the judgment suggests to the referring Court that it  "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 fruit tea’s packaging."

At the time of writing, the German Federal Court has not yet issued its decision. However, this judgment of the CJEU confirms once again that information directed at consumers is a core concern of the European legislature and that there is a continued move towards closer control of the content and presentation of such information. Beyond ensuring the compliance of their packaging, businesses need to develop and implement a consistent approach as regards the communications relating to their products in the broader sense.


  • 1Case C‑47/09, Commission v Italy, paragraph 37.
  • 2Case C‑470/93, Mars, paragraph 24, Case C‑210/96, Gut Springenheide and Tusky, paragraph 31, Case C‑220/98, Estée Lauder, paragraph 30 and Case C‑446/07, Severi, paragraph 61.
  • 3Case C‑51/94, Commission v Germany, paragraph 34 and Case C‑465/98, Darbo, paragraph 22.
  • 4Article 1(3)(a) of Directive 2000/13/EC (replaced by Article 2, 1, (j) of the FIC Regulation (Regulation (EU) No 1169/2011 of the European Parliament and of the Council of 25 October 2011 on the provision of food information to consumers).
  • 5C-195/14, Teekanne, paragraph 38.