A case law update on the latest clarifications of the CJEU on EU food labelling requirements
Ensuring compliance of food labels with the sophisticated EU food regulations sometimes keeps legal teams, marketing teams -or both!- awake at night. That is because even where applicable legal provisions are set out in a particularly detailed and refined way, questions may arise as regards their interpretation and hence, the correct application thereof.
It is thus no wonder that a decade after its enactment, the FIC Regulation still regularly raises interpretative questions concerning food labelling questions.
One of such questions has formed the subject matter of a case in which the Court of Justice has delivered its decision on 13 January 2022, that we will refer to hereafter as the ‘Tesco case’. Another question has been raised, interestingly of a similar nature, in what we will refer to as the Upfield Hungary case, a preliminary ruling on which has been delivered by the Court of Justice in Luxembourg on 24 March 2022.
The Tesco case concerns the designation of compound ingredients. The FIC Regulation provides that “A compound ingredient may be included in the list of ingredients, under its own designation in so far as this is laid down by law or established by custom, in terms of its overall weight, and immediately followed by a list of its ingredients”. In some cases, i.e., where the composition of the compound ingredient is defined in current Union provisions, and that it constitutes less than 2 % of the finished product, the list of ingredients for the compound ingredient is not mandatory.
In the Tesco case, food products were commercialised that contained among other ingredients “powdered chocolate” in the sense of Directive 2000/36. The product was placed on several EU markets, and the list of ingredients did not specify the composition of the aforementioned compound ingredient. On labels used on the Czech market, the designation of “čokoládový prášek” was indicated using a free translation of the terms, that did not match the designation set out in the Czech version of Directive 2000/36.
In the ruling delivered on 13 January 2022, the Court of Justice followed Advocate-General Tanchev’s opinion that the exemption to indicate the ingredients composing a compound ingredient applies only if the legal name of the compound ingredient is used. If a designation other than the legal name of the compound ingredient is used, then the ingredients composing the compound ingredient have to be identified in the list of ingredients. This interpretation is indeed in line with the need to ensure that fair information is conveyed to the consumers as regards the composition of the food they purchase. The decision of the Court is also a reminder that the name of a food -and of an ingredient- has to be the legal name of this food where such legal name exists, a customary name if no legal name exists and a descriptive name if neither a legal nor a customary name exists for the concerned food. The exemption to provide a list of ingredients for compound food applies in the limitative cases set out under Part E of Annex VII to the FIC Regulation, which solely relate to cases that are exclusively regulated under Union provisions.
In the Upfield Hungary case, the question submitted to the Court also relates to the designation of certain ingredients. In particular, the Court is asked to indicate whether the specific vitamin formulation (e.g., ascorbic acid for vitamin C, or cholecalciferol for vitamin D) or mineral substance (e.g., potassium carbonate for potassium or calcium lactate for calcium) used in fortified foods has to be specified in the list of ingredients or in the nutrition declaration of such fortified foods.
The case concerns a margarine fortified with vitamins, the list of ingredients and nutrition declaration of which identifies vitamin A and vitamin D without specifying the formulation of these vitamins used in the product. The Hungarian authorities took the view that the specific vitamin formulation used had to be indicated, in addition to the identification of the vitamins as such. The responsible food business operator, Upfield Hungary, challenged this view and the case was referred to the Court of Justice.
The question at issue revolves around the notion of “specific name”, which is the name under which ingredients have to be designated. In the opinion delivered on 16 December 2021, Advocate-General Medina distinguishes between fortified foods and food supplements. These categories are indeed subject to different compositional and labelling rules. According to the Advocate-General, considering the differences in the perception of consumers about these categories of products (a nutritional or physiological effect being expected from food supplements), the requirement of indicating the “specific name” of ingredients could be interpreted differently in relation to the respective categories of fortified foods and food supplements. As far as fortified foods are concerned, the Advocate-General concluded that the “specific name” of vitamin and minerals does not include the indication of the vitamin or mineral formulation used, as listed in Annex II to Regulation 1925/2006.
In its ruling delivered on 24 March 2022, the Court of Justice limited the scope of its review to fortified foods, but for the rest followed the Advocate-General’s opinion that Article 18(2) of the FIC Regulation must be interpreted as meaning that, where a vitamin has been added to a foodstuff, the list of ingredients of that foodstuff must not include the vitamin formula which has been used, in addition to the name of that vitamin.
In addition, the Court’s ruling points out that the voluntary indication of the vitamin or mineral formulation used in a fortified food or in a food supplement, while it remains permitted, could generate a risk of rendering food information less intelligible for the average consumer, which would make this information at odds with the overall objectives of food information regulations. Whether or not it appears on the labels of the concerned products, it is worth reminding that EU law provides for an exhaustive list of authorised formulations, and these formulations differ between fortified foods and food supplements.
One of the purposes of the FIC Regulation is ensuring consumers are provided with comprehensive information about the content and composition of their food. The recent case law developments commented herein pursue the same objective. They are of utmost interest at a moment when food information constitutes one of the points of attention of the Commission’s Farm to Fork strategy in consideration of its key role in enabling consumers making responsible and sustainable purchase decisions. These concerns being higher than ever on the regulatory agenda, inevitably translate into increased market surveillance and related enforcement measures that prompts reinforced attention of food businesses in charge of food labelling compliance.
 Regulation (EC) No 1169/2011 on the provisions of food information to consumers.
 C.J.E.U., Tesco Stores ČR a.s.v. Ministerstvo zemědělství, 13 January 2022, C-881/19.
 C.J.E.U., Upfield Hungary Kft. v. Somogy Megyei Kormányhivatal, 24 March 2022, C-533/20.
 Annex VII, part. E of the FIC Regulation.
 Per Annex I (2)(c) of Directive 2000/36, ‘powdered chocolate’ or ‘chocolate in powder’ designate the product consisting of a mixture of cocoa powder and sugars, containing not less than 32 % cocoa powder.
 Issued on 6 October 2021.
 Per Article 18(2) of the FIC Regulation.