By judgment of June 4, 2014, Case C-195/14, the Court of Justice of the European Union (ECJ) ruled that it is unlawful to use a package design for a fruit tea that gives the impression that an ingredient is present, when it is not in fact present, and this is apparent solely from the list of ingredients on the fruit tea’s packaging. The listing of ingredients in compliance with food labeling requirements may, even though correct and comprehensive, be incapable of sufficiently correcting a consumer’s erroneous impression that stems from the overall package design.
Facts of the Case
The German company Teekanne markets a fruit tea called “Felix Himbeer-Vanille Abenteuer” (“Felix raspberry and vanilla adventure”). The packaging includes depictions of raspberries and vanilla flowers and the indications “Früchtetee mit natürlichen Aromen” (“fruit tea with natural flavorings”) and “Früchtetee mit natürlichen Aromen—Himbeer-Vanille-Geschmack” (“fruit tea with natural flavorings—raspberry-vanilla taste”). The packaging also includes a seal with the indication “nur natürliche Zutaten” (“only natural ingredients”) inside a golden circle. The fruit tea does not, however, contain any natural ingredients from vanilla or raspberry or any flavoring obtained from them. According to the list of ingredients, the tea contains a mere flavoring with a taste of vanilla and raspberry.
A German consumer protection association complained that Teekanne’s packaging misleads consumers with regard to the tea’s contents. Specifically, it argues that the packaging leads consumers to expect the fruit tea to contain vanilla and raspberry or at least natural vanilla flavoring and natural raspberry flavoring. The association therefore requests Teekanne to desist from advertising the fruit tea.
Teekanne argues that consumers are not misled since it is clear from the fruit tea’s list of ingredients, which is printed on the packaging, that the flavorings in the product have the taste of raspberry or vanilla. That list thus expresses, in a manner free from doubt, the fact that the flavorings used are not obtained from vanilla and raspberries but only taste like them. According to Teekanne, the correct and complete information provided by the list of ingredients on the packaging constitutes sufficient grounds on which to rule out the misleading of consumers.
The Bundesgerichtshof (the German Federal Supreme Court), to which the case came at last instance, considered whether the design of the packaging of the fruit tea could mislead the purchaser within the meaning of Article 2 (1) (a) (i) of Directive 2000/13 relating to the labeling, presentation, and advertising of foodstuffs.1
The Bundesgerichtshof decided to stay the proceedings and to refer to the ECJ the question of whether the labeling of a foodstuff may mislead the consumer when it gives the impression that a particular ingredient is present, even though it is not in fact present, and the only way for the consumer to notice this is by reading the list of ingredients (Bundesgerichtshof, reference for a preliminary ruling of February 26, 2014 in Case I ZR 45/13).2
The Ruling of the ECJ
By judgment of June 4, 2014, the ECJ reiterates that Articles 2 (1) (a) (i) and 3 (1) (2) of Directive 2000/13 require that the consumer has correct, neutral, and objective information that does not mislead him or her, and that the labeling of food cannot mislead. The Court acknowledged that consumers whose purchasing decisions depend on product composition will first read the list of ingredients. The fact that the list of ingredients is displayed on the packaging, however, does not in itself exclude the possibility that the design of the packaging may otherwise mislead the purchaser when some of the items on the labeling are erroneous, ambiguous, contradictory, or incomprehensible.
The Court makes clear that, in such circumstances, the list of ingredients, even though correct and comprehensive, may not be capable of sufficiently correcting the erroneous or misleading impression that the consumer gains from the labeling of the foodstuff. Therefore, where the labeling of a foodstuff gives the impression that a particular ingredient is present in that foodstuff, even though it is not in fact present (this being apparent solely from the list of ingredients), such labeling could mislead the purchaser as to the characteristics of the foodstuff in question.
Conclusion
The ECJ assumes an informed, properly considerate and reasonable average consumer. Nonetheless, the ECJ emphasizes that even a correct and complete list of ingredients cannot prevent the packaging of a product from misleading purchasers as to product composition. The ECJ will consider the packaging as a whole (e.g., graphics, coloration, images, and wording) when evaluating whether consumers are misled. Thus, when marketing a foodstuff, companies have to be careful that they are not including generalized references to, or images of, ingredients that are not in the product. An ingredient list may no longer be enough to preclude the possibility of consumers being misled.
Authors: Ulf H. Grundmann, Partner, Frankfurt a. M., +49 69 257 811 400, ugrundmann@kslaw.com, Elisabeth Kohoutek, Associate, Frankfurt a. M., +49 69 257 811 401, ekohoutek@kslaw.com.
