[co-author: Marina Fröhlich]
Manufacturers of food products need to meet the requirements of food laws and expectations of consumers, who are seeking more information about the healthfulness of food products. Many manufacturers are responding by providing additional health-related information, e.g., nutrition scores that look like traffic lights, called “traffic light labels.” But recent developments demonstrate that such labels might be considered a violation of EU food laws.
When placing foods and beverages on the European market, food producers must comply with several EU-specific requirements to ensure that their products are permitted under European laws. Since this industry is highly regulated, violations of law can – and will – be strictly enforced in court by competitors and responsible authorities.
The traffic light label on foods could be considered a good way to help consumers make healthier food decisions by showing all relevant nutrition information at a glance. The label is already widely used in France and the United Kingdom. For several years, various German consumer protection groups have demanded colored front-of-pack labels as well. While the so-called Nutri-Score is intended to illustrate a product’s nutritional value to the average consumer, the traffic light label, surprisingly, has been deemed by a German court to be unlawful labeling and a violation of several European regulations.
On April 16, 2019, the German District Court of Hamburg ruled by preliminary injunction that the labeling of foods with the Nutri-Score, namely using the color levels “dark green A” and “light green B,” violates Regulation (EC) No. 1924/2006 regarding nutrition and health claims made about foods (Health Claims Regulation, or HCR) and Regulation (EU) No. 1169/2011 on the provision of food information to consumers (Food Information Regulation) and must therefore be discontinued. The Nutri-Score logo in total is contrary to Art. 35 Food Information Regulation. The Nutri-Score is a front-of-pack nutrition labeling scheme that uses a five-tier scale consisting of colored letters “dark green A,” “light green B,” “yellow C,” “orange D” and “red E”). Foods are allocated to one of the five categories, A-E, to provide for consumers an easily understandable classification of products’ nutritional value, with “A” being a positive score and “E” being an adverse score. The calculation takes negative nutritional qualities such as sugar, saturated fat and salt into account, as well as positive ones such as dietary fiber and protein.
According to the decision of the German District Court of Hamburg, case file 411 HK O 9/19, the Nutri-Score is considered a nutrition claim according to Art. 2 (2) No. 4 HCR because it implies that a food has particular beneficial nutritional properties or at least raises particular expectations for consumers by labeling foods in the categories dark green A and light green B. However, nutrition claims are permitted only if they are listed in the Annex to the HCR, which is, according to the court’s decision, not applicable for the Nutri-Score. Accordingly, the Nutri-Score violates European regulatory law.
Furthermore, the court held that the entire Nutri-Score logo violates Art. 35 Food Information Regulation, pointing out that sufficient scientific evidence has not been presented to show that the criteria for the nutrition classification are based on proven scientific data or consumer research, and thus the Nutri-Score is misleading consumers within the meaning of Art. 7 Food Information Regulation.
However, the handling of the Nutri-Score currently varies significantly across the European Union. Nevertheless, the German Nutri-Score essentially corresponds to the nutrition label developed by Santé Publique France (the French government’s public health agency) modeled on a nutrition profiling system derived from the United Kingdom Food Standards Agency. Apparently, the Nutri-Score is not considered an unlawful nutrition claim in France as it was implemented in 2017 based on a national recommendation according to Art. 35 Food Information Regulation as voluntary additional nutritional information. Thus, the United Kingdom was the first mover, having already used the traffic light label for years. In 2019, Belgium launched the same Nutri-Score system as France after the responsible minister proposed her recommendation. Further European member states such as Spain and Portugal are planning to follow.
While it remains to be seen how courts in European member states will interpret this provision, the recent decision in Germany demonstrates that voluntarily used nutrition labels in the European Union need to be assessed very carefully. It is therefore of great importance to understand the national differences within various member states that food producers, wholesalers and retailers are faced with. Therefore, food producers must take EU-specific characteristics into account in order to avoid becoming subject to legal proceedings. Further developments need to be closely observed.
