Labelling of foodstuffs

The Court of Justice has issued a decision regarding claims which may be inserted on the labelling of foodstuffs. A brand of ground coffee marketed in Belgium and carrying slimming and weight control claims was challenged in court by a competitor arguing, among others, a breach of several provisions of national and Community law regarding the labelling and the advertising of foodstuffs.

The interpretation of relevant Community rules and the compatibility of applicable national rules with Community law were referred to the European Court of Justice.

While Directive 1999/4/EC harmonizes the definition of coffee extract and chicory extracts, the main relevant Community provisions are contained in Directive 2000/13/EC on the approximation of the laws of the Member States relating to the labelling, presentation and advertisement of foodstuffs (the Directive). The Directive harmonizes national rules and prohibits labelling which, (i) “attributes to any foodstuff the property of preventing, treating or curing a human disease, or refer to such properties”, and (ii) “contains misleading references to health”. These provisions apply to the labelling and to the advertising of foodstuffs.

In addition, the Directive requires Member States to allow the marketing of foodstuffs which are in compliance with the Directive, except for national measures regarding labelling (not advertising) justified by the protection of public health (Article 18 (2) of the Directive). National measures must nevertheless be compatible with the general principles of Community law.

In the present case, the court decided that Belgian rules (here a Royal Decree) which absolutely prohibit references to “slimming” (as opposed to the prohibition of misleading references only) do not comply with the requirement of proportionality (a general principle of Community law) with regard to both Article 18 (2) of the Directive (as to labelling) or to Article 28 EC (as to advertising) prohibiting restrictions to the trade of goods between Member States.

In particular, the Court of Justice considers such national provision as not proportionate as it does not allow the marketing of products carrying slimming claims which are substantiated, and for which, therefore, the slimming claim has an informative function. Moreover, the aim of protection public health would still be satisfied through a procedure of verification of claims made.

Finally, the Court recalls the long standing principle, recently applied in the case Darbo (C-465/98) of 20 April 2000, that it is up to the national court to decide on the existence of a fraudulent statement, “taking into account the presumed expectations of an average consumer who is reasonably well informed and reasonably observant and circumspect”.