EU COURT COMPLICATES LABELING OF MULTIPACKS

In a recent case, the Court of Justice of the EU ruled that each of the individual portions of a food packed in cartons (multipack) constituted a ‘pre-packaged foodstuff’, and therefore, needed to be labelled individually with all the compulsory mandatory information. Including that information on the outer carton packaging was not sufficient to comply with EU labeling rules.

Whilst there were particular circumstances in this ruling (mainly, the origin of the honey was mandatory following vertical honey legislation and the multipacks were sold to mass-caterers who, in turn, included those portions separately as part of pre-prepared meals), important consequences arise for the labeling of multipacks generally, a very extended practice in the food industry.

 In casu, a German honey producer sold 120 individual portions of 20 grams of the same honey in a portion-cup closed with an aluminium seal. Those 120 portions were placed in a carton sealed by that undertaking and sold in that form to mass caterers. The mandatory particulars relating to that foodstuff and provided for in Regulation 1169/2011 (Directive 2000/13 at the time of the proceedings) and 2001/110, in particular, the country of origin of the honey, were indicated on that carton packaging. There was no indication of the country of origin on the individual portions of the honey in question.

 The question faced by the Court boiled down to whether the mandatory information should be included in all 120 portions of honey or was it sufficient to include it in the outer carton packaging.

 According to the Court, the answer to that question depended on whether those portions were considered ‘pre-packaged foodstuffs’ for the purposes of Article 1(3)(b) of Directive 2000/13 (now article 2(1)(e) of Regulation 1169/2011), i.e. “any single item for presentation as such to the final consumer and to mass caterers, consisting of a food and the packaging into which it was put before being offered for sale, whether such packaging encloses the food completely or only partially, but in any event in such a way that the contents cannot be altered without opening or changing the packaging”. In the case of prepacked food, mandatory food information shall appear “directly on the package or on a label attached thereto” (Article 12(2) of Regulation 1169/2011).

After a intricated legal analysis, which seemed overly motivated by the “particular interest” which the consumer has in the origin of honey, as per Directive 2001/110, the Court concluded that each of the individual portions were indeed pre-packaged food and /required mandatory labeling.

 Against EU Commission guidelines

 The ruling contradicts the ‘Questions and answers on the application of Regulation (EU) No 1169/2011’, drafted by experts from the Commission and the Member States. According to paragraph 2.1.3 of that widely used document ‘considering the different forms of delivering food to the ultimate consumer in catering establishments, it should be noted that portion-cups (e.g. jams, honey, mustard) which are presented as part of a meal to the guests of mass caterers should not be considered as units of sale. Therefore, it would be sufficient that, in such cases, the food information appear on multipacks’.

 Practical consequences

 In our view, labelling multipacks with several units of the same food or food supplement where the pack would be covered by an outer labelling would be in accordance with the legislation as interpreted by the Court under the conditions and recommendations described below[1]:

 Â§  In order to avoid the risk of each individual portion being sold separately (e.g. the wholesaler/retailer, or even the consumer at the point of sale, may decide to separate the items labelled in the multipack), it is crucial to ensure, by appropriate presentation and/or statements on the label, that the label is meant to apply to the whole multipack and not to the individual products.

 Â§ For that purposes, it is recommended to add to each individual portion a statement such as “NOT FOR RESALE” or “MAY NOT BE SOLD SEPARATELY”, which, in our view, satisfies this requirement. Indeed, the Court opted not to analyze this scenario, since it had established that the individual units were indeed sold separately as part of pre-prepared meals.

 Â§  Mandatory food information “shall be available and shall be easily accessible”, pursuant to Article 12(1) FIC. This requirement has been interpreted by the European Commission as meaning that “(…) labels must not be easily removable so as to jeopardise the availability or the accessibility of the mandatory food information to the consumer” (Cf. Questions and Answers on the application of the Regulation (EU) N° 1169/2011 on the provision of food information to consumers). Therefore, it is essential to ensure that the above rules are observed.

 Â§  Further rules on text layout requirements (e.g. including some labeling particulars in the same field of vision, etc.) should also be taken into account.

 Case C‑113/15, REQUEST for a preliminary ruling under Article 267 TFEU from the Bayerischer Verwaltungsgerichtshof (Bavarian Higher Administrative Court, Germany), made by decision of 11 February 2015, received at the Court on 6 March 2015, in the proceedings Breitsamer und Ulrich GmbH & Co. KG v Landeshauptstadt München, of 22 September 2016

[1]               See also, towards this conclusion, FIC, Annex IX para. 4: “Where a prepacked item consists of two or more individual packages which are not regarded as units of sale, the net quantity shall be given by indicating the total net quantity and the total number of individual packages”, and Annex X para. 2(d): “the ‘use by’ date shall be indicated on each individual prepacked portion” (our emphasis). See, along the same lines, FoodDrinkEurope’s Guidance on the Provision of Food Information to Consumers (September 2013),  p. 86)].