The issue of dual quality of certain products, and in particular food products, has been a source of growing concern among consumers, who have been expressing concern about the fact that products sold by the same manufacturer under the same brand were of inferior quality in their country than in others.
As part of a global action plan aimed at restoring citizens' confidence and trust in the Single Market, the Commission has decided to focus in the first instance on the area of food, and has therefore issued, on 26 September 2017, a set of guidelines on the application of EU food and consumer laws to dual quality products (C(2017) 6532 final).
These guidelines aim to facilitate the practical application of existing legislation on food and consumer protection, which globally aims to prevent misleading practices. They are meant to clarify the relevant legislative framework and are mainly aimed at national authorities, to whom they provide tools and indicators to ensure proper enforcement against unfair practices, with the ultimate purpose of ensuring compliance with the EU consumer acquis and enforce the European safety and food labelling legislation at national level.
The guidelines provide a summary of the specific fair information requirements under the FIC Regulation and of the suppletive rules on information practices about the characteristics of products under the Unfair Commercial Practices Directive 2005/29/EC (the UCPD).
They also include a decision tree that should allow national authorities to determine whether a given situation may potentially constitute an unfair business practice in the case of branded food products. The decision tree is as follows:
- Does a product comply with the sector specific legislation?
- If the answer to the previous question is yes, is the product promoted under the same brand and packaging?
- If the answer to the previous question is yes, is the product's composition significantly different from the version sold in other parts of the Single Market?
- If the answer to the previous question is yes, is a consumer sufficiently informed about this difference?
If the answer to the last question is no, the authority must make a decision on the point of knowing whether, if the consumer had been informed about the difference, she/he would have bought the product? If the answer is negative, then the guidelines recommend to regard the situation as a potential breach of the UCPD.
Other measures aiming to tackle the issue of dual quality food products are being discussed, including the enactment of a Code of Conduct for producers, to set out standards to be respected to prevent dual quality problems.