European Court of Justice: The Bench comprising of J. Passer (Rapporteur), President, F. Biltgen and N. Wahl, JJ., held that the German food manufacturer, Dr. Oetkar had failed to comply with the requirements of providing adequate nutritional value as per European Regulation. The Bench remarked,
“By analogy, isolated information displayed on the front of the packaging does not enable products to be compared and the additional declarations displayed elsewhere on the packaging with different reference quantities are simply liable to confuse the consumer even more as to comparability with other products.”
The instant case was related to a proceeding between Federal Union of Consumer Organisations and Associations, Germany and a German food business, Dr. August Oetker Nahrungsmittel KG (‘Dr. Oetker’) concerning an application for an order requiring the company to make the nutrition labelling on the front of muesli packaging, launched under the name “Dr. Oetker crunchy muesli with chocolate and biscuits”, consistent with the requirements of Regulation No 1169/2011.
According to the Union, Dr. Oetker infringed Article 33 of that regulation, read in conjunction with Articles 30 and 32 thereof, on the ground that on the front of the product’s packaging, the energy value was stated not per portion of the product as sold but only per portion of the product after preparation.
Opinion of Referring Court
According to the referring Court, the outcome of the proceeding depended on a point of law, in particular on whether Article 31(3) and Article 33(2) of Regulation No 1169/2011 are to be interpreted as prohibiting the indication on the front of the packaging of nutrition information per portion of the food after preparation without also stating the energy value per 100 g of that food as sold. Therefore, the referring Court had asked,
- Whether Article 31(3) must be interpreted as applying only to foods which, in order to be consumed, require preparation and for which the method of preparation is predetermined?
- Does the phrase “per 100 g” in Article 33(2) only refer to 100 grams of the product as sold, or does it also – at least additionally – refer to 100 grams of the food after preparation?’
In short, the referring Court had called the Court to rule whether, where there are various methods of preparing a food, the nutrition declarations that are repeated on a voluntary basis on the front of that food’s packaging can be limited to one of those methods of preparation?
Nutritional Value of ‘Food after Preparation’ v/s of ‘Food as sold’
The product at issue in the main proceedings may be prepared in various ways, e.g. by adding milk, yoghurt, fromage blanc, fruit juice, fruit, jam or honey. It may also be consumed without any preparation.
Noticing that under the second subparagraph of Article 31(3) of Regulation No 1169/2011, the nutrition information may, ‘where appropriate’, relate to ‘the food after preparation’ instead of to the food ‘as sold’, ‘provided that sufficiently detailed preparation instructions are given and the information relates to the food as prepared for consumption’, the Bench opined that the objective pursued by the Article 31(3) must be determined in the light both of the aim of that provision and of the objectives of the legislation in question, including the objective of ensuring a high level of consumer protection in relation to food information, taking into account the differences in perception of consumers.
Customer’s Right to Compare
According to recital 35, the provisions relating to a nutrition declaration per 100 g or 100 ml have the objective of ‘facilitating the comparison of products in different package sizes’, that recital also explains that ‘additional portion-based declarations’ are allowed, ‘in addition to the expression per 100 g or per 100 ml’, ‘if appropriate’, ‘where food is pre-packed and individual portions or consumption units are identified’.
Recital 41 states that, ‘to appeal to the average consumer and to serve the informative purpose for which it is introduced’, the nutrition information provided must ‘be simple and easily understood’.
Hence, where a food may be prepared in various ways, the information regarding the energy value and amounts of nutrients of the food after its preparation in accordance with the producer’s suggestion does not enable a comparison to be made with the corresponding foods of other producers. Considering that the calculation of the energy value and of the amounts of nutrients of a product which may be prepared in various ways is uncertain as it necessarily varies according to the method of preparation, the Bench held that lack of comparability could not be made up for by the fact that the values of a portion were indicated elsewhere on the packaging, with the values per 100 g of the product as sold.
Accordingly, the Bench opined that where a food may be prepared in various ways, the information regarding the energy value and amounts of nutrients of the food after its preparation in accordance with the producer’s suggestion does not enable a comparison to be made with the corresponding foods of other producers.
In the backdrop of above, the Bench held that the fact that the list of ingredients was displayed on the packaging of the goods concerned did not in itself exclude the possibility that the labelling of those goods and methods used for it may be such as to mislead the purchaser.
Hence, the Bench held that foods which may be prepared in different ways must be excluded from the scope of the second subparagraph of Article 33(2) of Regulation No 1169/2011 and the second subparagraph of Article 31(3) must be interpreted as applying only to foods for which preparation is necessary and the method of preparation is predetermined.[Verbraucherzentrale Bundesverband eV v. Dr. August Oetker Nahrungsmittel KG, Case C-388/20, decided on 11-11-2021]