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Italian Competition Authority (AGCM) sanctions the use of Nutriscore once again


Mar 17, 2023

Is the NutriScore logo a sufficient tool for the average consumer to determine the nutritional quality of a food product?

In a case where the company VIVIL A. Müller GmbH & Co. KG. (VIVIL) used NutriScore on the label of candy products rating the product” letter B in green”, the AGCM decided the letter and color are not enough on the label and the consumer needs more precise information to be able to make a choice on the food he/she is eating. To be more precise, the AGCM stated “the lack of indications is likely to lead the average consumer to believe that those presented are healthy food consumption choices in an absolute sense and that the product judged as green can be considered the "best" in its category to the detriment of orange or yellow products. The lack of clarifying elements in relation to the characters and limitations of the methodology used does not allow the consumer to make an informed use of the assessment made." Finally, AGCM decided that the lack of clear indications to the consumer on the intrinsic characteristics of the system constitutes an unfair commercial practice under Articles 20, 21(b), and 22 of the Consumer Code and imposed a fine of 10,000 euros on the company. This case is the most recent of a series of cases regarding NutriScore (involving other compagnies such as Carrefour, Pescanova and Weetabix) brought to the attention of the Italian Competition Authority.

The NutriScore, created in France in 2017, is a front-of-pack label that informs the consumer about the nutritional quality of a product through two correlated scales: one five-color nutritional scale: from dark green to dark orange, associated with letters ranging from A (highest quality) to E (lowest quality). The logo is attributed based on a score system that is calculated considering the amounts of nutrients that should be limited (energy, salts, sugars etc.) and the amount of nutrients and foods that should be encouraged (fruits, proteins, fibers etc), for every 100 g or 100 ml of food product.

Regarding the calculation based on the reference of 100 g or 100 ml of product, the AGCM deemed it simplistic because a diet is made up of portions and frequencies of consumption, such as foods consumed in extremely low quantities (olive oil), others in medium portions (cheese or meat) and others in larger portions (water, fruit and vegetables).

In its defense, VIVIL claimed that it had adopted the NutriScore system as advised by the German Federal Ministry of Agriculture. According to the company, the distribution of products labelled with the NutriScore was to be considered "protected" in all Member States of the European Union, by the principle established in the Cassis de Dijon judgment, according to which products legally marketed in one Member State can also be sold in all other Member States.

Although Nutri-Score was developed to facilitate consumers’ understanding of nutritional information and thus to help them in making informed choices, the AGCM seems to prefer the informative rather than evaluative type of communication of nutritional information to consumers. This means that, companies using the NutriScore without further clarification on the logo, are now likely to run a risk to be sanctioned by the Italian authority. Therefore, without a harmonized front of pack labelling scheme regarding the nutritional value of food products, the NutriScore is still likely to create a divergence of opinions among different stakeholders.

AGCM PS12187 - NUTRISCORE-VIVIL - Provision n. 30317 of 01/30/2023
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