Waiter! There's a beetle in my soup. Yes sir, that's E120: Disparities between actual individual behaviour and regulating food labelling for the average consumer in EU law

Common Market Law Review

Volumn 45, Issue 4, 2008, Pages 1147-1165

  MacMaoláin, Caoimhín ^a  

^a TRINITY COLLEGE DUBLIN   (Ireland)

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EID: 51949115321     PISSN: 01650750     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (79)

1. Directive 2003/89/EC of the European Parliament and of the Council of 10 Nov. 2003 amending Directive 2000/13/EC, requires that where certain allergens, such as peanuts, eggs and shellfish, are present in foodstuffs, this must be stated on the label. O.J. 2003, L 308/15. Amended by Directive 2007/68/EC, O.J. 2007, L 310/11.
2. Case 120/78, Rewe-Zentral AG v. Bundesmonopolverwaltung für Branntwein (Cassis), [1979] ECR 649.
3. See e.g. the preamble to Council Directives 1973/241, O.J. 1973, L 228/23 and 1974/409, O.J. 1974, L 221/10.
4. Council Directive 1973/241/EEC of 24 July 1973 on the approximation of the laws of the Member States relating to cocoa and chocolate products intended for human consumption. O.J. 1973, L 228/23.
5. Council Directive 1974/409/EEC of 22 July 1974 on the harmonization of the laws of the member States relating to honey. O.J. 1974, L 221/10.
6. Council Directive 1975/726/EEC of 17 Nov. 1975 on the approximation of the laws of the Member States concerning fruit juices and certain similar products. O.J. 1975, L 311/40.
7. Council Directive 1977/436/EEC of 27 June 1977 on the approximation of the laws of the Member States relating to coffee extracts and chicory extracts. O.J. 1977, L 172/20.
8. Council Directive 1979/693/EEC of 24 July 1979 on the approximation of the laws of the Member States relating to fruit jams, jellies and marmalades and chestnut purée. O.J. 1979, L 205/5.
9. Council Directive 1979/112/EEC of 18 Dec. 1978 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs for sale to the ultimate consumer. O.J. 1979, L 33/1.
10. Preamble to Council Directive 1979/112/EEC.
11. The preamble to Directive 1979/112 states that: "differences which exist at present between the laws, regulations and administrative provisions of Member States on the labelling of foodstuffs impede the free circulation of these products and can lead to unequal conditions of competition ... therefore, approximation of these laws would contribute to the smooth functioning of the common market".
12. Directive 2000/13/EC of the European Parliament and of the Council of 20 March 2000 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs. O.J. 2000, L 109/29.
13. Art. 1.3(a) of Directive 2000/13/EC.
14. Art. 2.1.
15. Art. 3.
16. For example, some foods, such as untreated fresh fruit and vegetables and single ingredient products, need not carry a list of ingredients on the label (Art. 6.2). Similarly, an indication of the durability date is not required for untreated fresh fruit and vegetables; wines and beverages containing 10% or more by volume of alcohol; bakery products normally consumed soon after production; vinegar; cooking salt; solid sugar; chewing gum; and individual portions of ice-cream (Art. 9.5)
17. Art. 8.
18. The "best before" date of a foodstuff is the date until which it retains its specific properties when properly stored, usually in the form of day/month/year (Art. 9). Highly perishable foodstuffs, which are likely to constitute a danger to human health if consumed too long after production, should carry a "use by" date, usually in the form of day/month (Art. 10).
19. Art. 5.1(a). The Directive also provides that the name used in the Member State of production should also be allowed, provided that the information on the label is sufficient to enable consumers in the Member State of sale to know about the true nature of the foodstuff and to be able to distinguish it from others with which it may be confused (Art. 5.1(b)). Where confusion could occur, other descriptive information should appear in proximity to the sales name (also, Art. 5.1(b)). In some cases, the name used in the Member State of manufacture cannot be used in the Member State of sale, where the food product is substantially different from products generally sold there using that name (Art. 5.1(c)).
20. White paper from the Commission to the Council on Completing the Internal Market, COM(85)310.
21. The main articles to appear on this subject were initially Welch, "From 'Euro Beer' to 'Newcastle Brown', A Review of European Community Action to Dismantle Divergent 'Food' Laws", 22 JCMS (1983), 47,
22. which was initially optimistic about the effects of the application of Cassis on the free movement of food, as compared to the impending difficulties identified by Brouwer, "Free movement of foodstuffs and quality requirements: Has the Commission got it wrong?", 25 CML Rev. (1988), 237;
23. and von Heydebrand, "Free Movement of foodstuffs, consumer protection and food standards in the European Community: Has the Court of Justice got it wrong?", 16 EL Rev. (1991), 391.
24. In particular, Brouwer, op. cit. supra note 21.
25. Para 12.
26. Council Directive 1990/496/EEC of 24 Sept. 1990 on nutrition labelling for foodstuffs, O.J. 1990, L 276/40.
27. Directive 1997/4/EC of the European parliament and of the Council of 27 Jan. 1997 amending Directive 1979/112/EEC on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs, O. J. 1997, L 43/21.
28. The first real effort designed to simplify Community rules on the production and composition of specific foods was made following decisions taken at the Edinburgh Summit of the European Council in 1992. This led to the revising of all of the original recipe laws between 1999 and 2001. The original chocolate directive had proved particularly problematic in the past due to clashes over whether British and Irish chocolate, traditionally made using less cocoa and with fats other than cocoa butter, should be labelled as chocolate at all. This was eventually resolved through the introduction of Directive 2000/36/EC of the European Parliament and of the Council of 23 June 2000 relating to cocoa and chocolate products intended for human consumption. O.J. 2000, L 197/19. This directive continued to allow the United Kingdom and Ireland to authorize the use of the name "milk chocolate" to designate what was known as "milk chocolate with high milk content" throughout the rest of the Community. The name "milk chocolate with high milk content" would, however, have to be replaced with "family milk chocolate". The use of specific vegetable fats other than cocoa butter would also be permitted, up to a maximum of 5% and could be marketed in all of the Member States, provided that the labelling was supplemented by a clear statement that the product "contains vegetable fats in addition to cocoa butter".
29. See, for example, Case 216/84, Commission v. France (milk substitutes), [1988] ECR 793; Case 178/84, Commission v. Germany (beer), [1987] ECR 1227; Case 247/84, Motte, [1985] ECR 3887; Case 304/84, Muller, [1986] ECR 1511; Case 274/87, Commission v. Germany (meat products), [1989] ECR 229; and Case C-123/00, Bellamy, [2001] ECR I-2795.
30. Council regulation (EEC) 2081/1992 of 14 July 1992 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs. O.J. 1992, L 208/1.
31. The second regulation alluded to above was Council Regulation (EEC) No 2082/1992 of 14 July 1992 on certificates of specific character for agricultural products and foodstuffs, O.J. 1992, L 208/9. It is not discussed in any detail here as its impact on the development of EU Food Law has been much less significant than Regulation 2081/1992. Its potential impact and usefulness has been recognized elsewhere.
32. See MacMaoláin, EU Food Law: protecting consumers and health in a common market (Hart Publishing, 2007), pp. 117-119.
33. Council Regulation (EEC) No 510/2006 of 20 march 2006 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs. O.J. 2006, L 93/12.
34. WTO DS 174, European Communities - Protection of Trademarks and Geographical Indications for Agricultural products and Foodstuffs. Here, the United States of America and Australia had both complained that Regulation 2081/1992 ran contrary to the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs). There were two main claims. The first was that the existence of the Regulation meant that trademarks registered by other WTO Members were not sufficiently protected in the EU where these were similar in name to EU protected geographical indications or designations of origin. Second, it was claimed that the regulation limited access for the nationals of third country WTO members to the system of protection available in the EU. The Dispute Panel reported in March 2005 that the provisions of Regulation 2081/1992 were contrary to WTO rules insofar as they made registration of a geographical name from a third country conditional upon the government of that country adopting a system of protection equivalent to that established in the EU while also according reciprocal levels of protection in those third countries to geographical food names registered in the EU. Essentially, it was found that access to the system of protection established by Regulation 2081/1992 was thus unjustifiably limited by these equivalence and reciprocity requirements.
35. Art. 2.1(a).
36. Details of how to make such an application are set out in Arts. 5-7 of the Regulation.
37. In Case C-87/97, Consorzio per la tutela del formaggio Gorgonzola v. Käserei Champignon Hofmeister GmbH & Co. KG and Eduard Bracharz GmbH, [1999] ECR I-1301, the Court stated that "evocation" occurs where a non-registered food name incorporates part of a protected geographical name in a manner which may mislead consumers (para 25). It ultimately found that the use of a name such as "Cambozola" could be an evocation of the protected designation of origin "Gorgonzola", even where the packaging of the latter indicated the true origin of the product.
38. Art. 13.1.
39. Art. 3.1.
40. The ECJ classified Edam as generic in Case 286/86, Ministère Public v. Gérard Deserbais, [1988] ECR 4907, para 12.
41. Annex to Commission Regulation (EC) No 1107/1996 of 12 June 1996 on the registration of geographical indications and designations of origin under the procedure laid down in Art. 17 of Council regulation (EEC) No 2081/1992, O.J. 1996, L 148/1.
42. Joined Cases C-289, 293 & 299/96, Denmark, Germany and France v. Commission, [1999] ECR I-1541. Feta was deregistered as a Protected Designation of Origin by Art. 1.1 of Commission Regulation (EC) No 1070/1999 of 25 May 1999 amending the Annex to Regulation (EC) No 1107/1996 on the registration of geographical indications and designations of origin under the procedure laid down in Art. 17 of Council Regulation (EEC) No 2081/1992, O.J. 1999, L 130/18.
43. Commission Regulation (EC) No 1829/2002 of 14 Oct. 2002 amending the Annex to Regulation 1107/1996 with regard to the name feta, O.J. 2002, L 277/10.
44. Joined Cases C-462 & 466/02, Germany and Denmark v. Commission, [2005] ECR I-9115.
45. CN Code 0406 9031 appearing in Chapter 4 in Part II of Annex I to Council Regulation (EEC) No 2658/1987 of 23 July 1987 on the tariffand statistical nomenclature and on the Common Customs Tariff, O.J. 1987, L 256/1.
46. Similarly, in Case C-132/05, Commission v. Germany, judgment of 26 Feb. 2008, nyr, the Court failed to explain how there was deemed to be phonetic and visual similarity between the names "Parmesan" and "Parmigiano Reggiano" when only two syllables out of nine are actually similar. The Court also failed to examine whether the name Parmigiano Reggiano was generic, limiting its assessment to the fact that the respondent Member State had failed to prove that it was. It is here contended that this assessment should take place at the time of registration of the geographical name, to test its eligibility for protection under the terms of Regulation 510/2006.
47. Art. 3.1.
48. Preamble to Regulation 1829/2002, note 39 supra.
49. Art. 6.5.
50. Art. 6.2.
51. Art. 6.4(b).
52. Art. 6.4(a).
53. Art. 6.5(c).
54. Case C-144/93, Pfanni Werke Otto Eckart KG v. Landeshauptsadt München, [1994] ECR I-4605.
55. Id., para 18.
56. Art. 6.6 of Directive 2000/13, note 12 supra.
57. As defined in, for example, the preamble to Regulation (EC) No 1924/2006 of the European Parliament and of the Council of 20 December 2006 on nutrition and health claims made on foods. O.J. 2007, L 12/3. This definition of the "average consumer" has also been extensively applied by the Court. See, for example, Case C-210/96, Gut Springenheide GmbH and Rudolf Tusky v. Oberkreisdirektor des Kreises Steinfurt - Amt für Lebensmittelüberwachung, [1998] ECR I-4657, para 31; Case C-303/97, Verbraucherschutzverein eV v. Sektkellerei G.C. Kessler GmbH und Co, [1999] ECR I-513, para 36; and more recently applied by the Court in Case C-102/07, Adidas AG and Adidas Benelux v. Marca Mode and others, judgment of 10 April 2008, nyr.
58. As initially suggested by e.g. the findings of Feingold, "Hyperkinesis and learning disabilities linked to artificial food flavors and colors", 75 American Journal of Nursing (1975), 797,
59. and more recently by McCann and others, "Food additives and hyperactive behaviour in 3-year-old and 8/9-year-old children in the community: a randomized, double-blinded, placebo-controlled trial", 370 The Lancet (2007), 1560.
60. Council Directive 1990/496/EEC of 24 Sept. 1990 on nutrition labelling for foodstuffs. O.J. 1990, L 276/44.
61. Art. 1.4(a) of Directive 1990/496.
62. Art. 2 of Directive 1990/496. Nutrition and health claims are now the subject of more rigorous controls following the introduction of Regulation (EC) No 1924/2006 of the European Parliament and of the Council of 20 Dec. 2006 on nutrition and health claims made on foods, O.J. 2007, L 12/3.
63. See e.g. Wandel, "Food labelling from a consumer perspective", 99 British Food Journal (1997), 212, where it is demonstrated that the information on food labels that was most often sought by consumers related to fat content, sugar, carbohydrates and additives.
64. Original studies on this in the United states of America found that approximately 25% of consumers were aware of nutritional labelling; Lenehan and others, "Consumer reaction to nutritional labels on food products", 7 Journal of Consumer Affairs (1973), 11.
65. See e.g. Shine, O'Reilly and O'Sullivan, "Consumer attitudes to nutrition labelling", 99 British Food Journal (1997), 283, where it was found that 58% of respondents actually used nutrition labels.
66. Lenehan and others, op. cit. supra note 59, found that approximately 15% of respondents understood the labels and only 9% found them to have been of use. Shine, O'Reilly and O'Sullivan, op. cit. supra note 60, found that 17% use nutrition labels. Other studies support these findings. See e.g. Cowburn and Stockley, "Consumer understanding and use of nutrition labelling: a systematic review", 8 Public Health Nutrition (2005), 21
67. and Baltas, "Nutrition labelling: issues and policies", 35 European Journal of Marketing (2001), 708, which both provide an overview of studies in this area.
68. Byrd-Bredbenner, Wong and Cottee, "Consumer understanding of US and EU nutrition labels", 102 British Food Journal (2000), 615.
69. Available at ec.europa.eu/food/food/labellingnutrition/foodlabelling/ effi_conclu.pdf.
70. Proposal for a Regulation of the European Parliament and of the Council on the provision of food information to consumers. COM(2008)40.
71. Evaluation of food labelling legislation; supra note 63.
72. Art. 21(b) of Proposal for a Regulation of the European Parliament and of the Council on the provision of food information to consumers; supra note 64.
73. White Paper on a Strategy for Europe on Nutrition, Overweight and Obesity related health issues, COM(2007)279.
74. Ibid.
75. Art. 9 of the Proposal; note 64 supra.
76. Art. 34.5 of the Proposal, note 64 supra.
77. Art. 44.1 of the Proposal; note 64 supra.
78. Note 2 supra.
79. There are references to Art. 153 EC in the reasons for the introduction of Community legislation in other areas, such as Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market, O.J. 2005, L 149/22.