As reported by us in the previous edition of the Food Law Digest, the Advocate-General concluded in his Opinion in Case C-159/09 (Lidl /Vierzon) that comparative advertising for food products which differ in taste is lawful, provided that there is a ‘sufficient degree of interchangeability’ between the compared food products and the advertisement furthermore meets the requirements as listed in the European Directive on misleading and comparative advertising.
On 18 November 2010, the Court of Justice of the European Union (CJEU) confirmed the Opinion of the Advocate-General. The CJEU thus allows comparative advertising for food products and this decision will thus broaden the possibilities for comparative advertising, especially in those countries where advertisements comparing food products was deemed unlawful by national courts.
As no question of interpretation was referred, the CJEU did not provide any guidance on how national courts can determine whether or not a ‘sufficient degree of interchangeability’ exists. It thus remains to be seen which specific circumstances will be of influence to the various national courts in Europe when determining the degree of interchangeability of the compared food products.