EU Court clarifies labeling of vitamins

EU

Judgment of 24 March 2022 in Case C-533/20

The ingredient list of foods to which a vitamin has been added does not have to include, in addition to the name of that vitamin, the name of the vitamin formulation (source) used, according to a recent ruling of the EU Court of Justice. 

The dispute arose when a Hungarian Court asked Upfield Hungary to change the label of its “Flóra ProActive” vegetable spread to add the sources of Vitamin A and D which it contained. The case got to the Supreme Court, who, faced with a question on the interpretation of EU law, stayed proceedings and referred the matter to the CJEU for a preliminary ruling on the interpretation of Article 18(2) of Regulation 1169/2011. 

The key legal question was to elucidate how to label vitamins added to foods, whether by its name, i.e. “Vitamin A”, the vitamin formulation used, i.e. “retinol", “betacarotene”, etc., or both, i.e. “Vitamin A (betacarotene)”.

Ingredients shall be designated by their ‘specific name’ pursuant to Article 18(2) of Regulation No 1169/2011, so the answer boiled down to what was the ‘specific name’ of vitamins. The Court found no answers in the relevant provisions of Regulation 1169/2011 or Regulation 1925/2006 on the addition of vitamins and minerals to food, so pursuant to settled case law, looked instead into the context and purpose of these rules.

In short, the CJEU found that the objective of a high level of consumer protection in relation to food information was better achieved if the label referred exclusively to vitamins under names such as ‘Vitamin A’ or ‘Vitamin D’ (as already required in the nutrition declaration pursuant to Annex XIII of Regulation 1169/2011). If the vitamins sources were used (instead or in addition to those names), the information would be less clear to the average consumer, as these sources are “relatively obscure or little known to the general public”.

Thus, the Court concluded that "where a vitamin has been added to a food, the list of the ingredients of that food does not have to include, in addition to the name of that vitamin, the name of the vitamin formulation used".

FCI Comments

A quick read of this recent ruling prompts four immediate comments:

• The options for labelling added vitamins in the nutrition declaration and in the list of ingredients of foods to which those nutrients are added are two: (i) the name of the vitamin; or (ii) the name of the vitamin and, voluntarily, the name of the vitamin formulation used (source).
   
• The operative conclusion of the ruling can be extended by analogy to the labeling of minerals. Therefore, the use of names such as ‘Zinc’ or ‘Magnesium’ in the nutrition declaration and in the list of ingredients of foods to which they have been added suffices. 
   
• The regime applicable to the labeling of vitamins and minerals used in food supplements pursuant to Directive 2002/46 remains unaffected by this ruling.
   
• The Court continues a trend [which arguably started in its Teekanne judgment (Case C-195/14)] towards the gradual erosion of the concept of “average consumer”, a CJEU seminal construct which enshrined consumer protection law in the EU by setting up high standards on the ability of consumers to read labels and make independent and informed choices. Indeed, in Teekanne the Court ruled that it was unlawful to use a package design for a fruit tea that gave the impression that an ingredient is present, when this was not the case and could be ascertained by merely reading the list of ingredients on the fruit tea’s packaging. Now, the Court considers that the average consumer “who is reasonably well-informed and reasonably observant and circumspect” will be confused by reading “retinol” instead of “Vitamin A (retinol)”. Not so well-informed, after all?

The Judgment C-533/20 in Case C-533/20 can be found here