Food manufactures often use expressions such as "Chocolate/Vanilla flavor" or pictures of fruits and other ingredients to depict the product's flavor on the label. However, a recent ruling by the Court of Justice of the EU has confirmed that those depictions may be misleading, even when accompanied with a correct and complete list of ingredients
A tea product showed raspberries and vanilla flowers and the indications "fruit tea with natural flavorings" and "fruit tea with natural flavorings â raspberry-vanilla taste". The list of ingredients, on the other hand, did not contain natural ingredients from vanilla or raspberry or flavoring obtained from them.
The Court ruled that, in such a case, the list of ingredients, even though correct and comprehensive, may not be capable of correcting sufficiently the erroneous or misleading impression which the consumer gains from other depictions on the labelling, i.e. that the product contained raspberry and vanilla or at least natural flavors derived from them.
Manufacturers so far tended to rely on earlier case-law of the Court of Justice, which has been interpreted as ruling out the existence of any misleading of consumers whenever a correct and complete information was provided by the list of ingredients on the label.
The Court now ruled that where the labelling 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 labelling is such as could be misleading.
EU COURT'S CRITERIA TO
ASSESS WHETHER A LABEL IS MISLEADING
The Court of Justice of the EU included a number of criteria to assess how consumers perceive the information contained in a label and its ability to mislead consumers. In particular:
Take account of the presumed expectations, in light of that labeling, which an average consumer who is reasonably well informed, and reasonably observant and circumspect has, as to the origin, provenance, and quality associated with the foodstuff, the critical point being that the consumer must not be misled and must not be induced to believe, incorrectly, that the product has an origin, provenance or quality which are other than genuine (see, to that effect, judgment in Severi, Câ446/07, EU:C:2009:530, paragraph 61)
Consumers whose purchasing decisions depend on the composition of the products in question will first read the list of ingredients, the display of which is mandatory (see, to that effect, judgments in Commission v Germany, Câ51/94, EU:C:1995:352, paragraph 34, and Darbo, Câ465/98, EU:C:2000:184, paragraph 22)
However, the fact that the list of ingredients is displayed on the packaging does 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