Who: Teekanne GmbH & Co.KG, the BVV (German Consumer Organisation)
Where: Germany and Luxembourg
When: 4 June 2015
Law stated as at: 1 July 2015
Relevant law: European Directive 2000/13/EC regarding, labelling presentation and advertisement of foodstuffs (the “Directive”). Particular attention was paid to:
Article 2(1)(a)(i), which prohibits labelling that may mislead the purchaser to a material degree as to nature, identity, properties, composition, quantity, durability, origin or provenance, method of manufacture or production.
Article 3(1)(2), which details the requirement for a list of ingredients made clear to the customer
NB: Directive 2000/13/EC was repealed with effect from 13 December 2014 and replaced by EU Regulation (EU) No. 1169/2011 on the provision of food information to consumers. The Directive provisions that are relevant to this case were carried over into the new Regulation.
Facts of the case
Teekanne GmbH & Co.KG (“Teekanne”) is a German company selling herbal and fruit teas. One of these was creatively named ‘Felix raspberry and vanilla adventure’. This was sold in a pack of deep red colour, with graphics depicting raspberries and vanilla flowers. Pack copy described ‘only natural ingredients’, ‘fruit tea with natural aromas‘ and ‘mixed tea with natural aromas – raspberry and vanilla flavour’.
This prompted a complaint from BVV on behalf of German consumers that they were being misled. BVV claimed that there was no raspberry or vanilla aroma, and not the slightest trace of actual vanilla/raspberry in the product. Therefore, it said, the pack was in contravention of Article 2(1)(a)(i) of the Directive.
Teekanne countered by saying that there were no explicit claims on the pack that the product contained any raspberry or vanilla, and this was made clear by the list of ingredients. Therefore they were compliant with Article 3(1)2 of the Directive.
The case was heard by the German Supreme Court on 18 April 2014. Whilst the court considered that the labelling could be deemed as misleading, it was wary of the protection afforded by Article 3(1)2 of the Directive and Teekanne’s accurate ingredient list. Therefore, the court asked the Court of Justice of the EU the following question:
‘Is it permitted for labelling, presentation and advertising of foodstuffs to create the impression – through appearance, indication or visual depiction – that an ingredient exists despite the ingredient being non-existent and this is only apparent from the ingredient list?‘ (Translation provided by EU Law Radar)
The European Court of Justice ultimately found that the labelling was misleading, despite the ingredients list following the rationale outlined below.
The court ruled that when considering what constitutes a misleading indication; one must consider presumed expectations, in light of the labelling, of an average consumer who is reasonably well informed and reasonably circumspect as to the nature of the product.
The judgment went on to state the general position that where a purchaser’s decision to buy rests on the composition of a product, they will first look to the ingredients list. However, the presence of an accurate ingredients list does not exclude the possibility of misleading packaging, and the labelling must be examined ‘as a whole’.
Why this matters:
While this is a German case, and the European court was often quick to point out the prominent role of national courts in deciding cases such as this, the effects will be felt throughout the CJEU’s jurisdiction.
While the general rule remains that, if a customer’s primary reason for buying a foodstuff is a certain element (such as raspberry or vanilla) then it is presumed that they will look at the ingredients list, this is no longer such a strong defence for manufacturers.
When marketing a foodstuff, companies will have to be careful that they are not misleading customers with references to ‘flavourings’ and ‘aromas’ of ingredients which are not in the product. An ingredient list may no longer be enough to provide the required information to purchasers. Companies should also bear in mind that the packaging as a whole will be considered.
This piece was co-written by Stephen Groom and Mark Nathan.