Dual quality of products — the specific case of food

 

SUMMARY OF:

Commission notice — applying EU food and consumer protection law to dual quality food products

WHAT IS THE AIM OF THIS NOTICE?

• It clarifies the relevant EU food and consumer protection laws in order to provide guidance to national authorities on how to detect potentially unfair marketing practices in relation to food and on how to apply this legislation to individual cases to ensure its proper enforcement.
• It is therefore a first step towards supporting national authorities in bringing about an end to unfair commercial practices relating to the dual quality of products*.

KEY POINTS

The European Commission has received complaints from consumers in several EU countries that the quality of some food products is allegedly lower in their home country compared with seemingly identical products sold by the same food company under the same brand in other EU countries.

While the free movement of goods in the EU does not necessarily mean that every product must be identical throughout the single market, it is a source of concern when products with a significantly different composition are marketed in a way that could potentially mislead consumers to believe that the product is the same across the EU’s single market when this is not the case.

Given the importance of the issue, the Commission has taken decisive action in order to restore citizens’ confidence and trust in the EU’s single market.

This action combines two strands:

• dialogue with the food industry, consumer associations and national authorities through the High Level Forum for a Better Functioning Food Supply Chain;
• giving national food and consumer protection authorities powers to investigate and to prosecute those who break the law.

To this effect, the Commission has issued an interpretative notice which acknowledges food companies’ right to alternate the composition of their products to better adapt them, for example, to local consumer preferences or to differences arising from geographical and/or seasonal availability, as long as all legal requirements imposed by EU food and consumer protection legislation are met. Most importantly, consumers must not be misled to believe that products, which are marketed under the same brand and/or which are wrapped in the same or very similar packaging, are the same across the single market when this is not true. The notice explains this reasoning and clarifies how national food and consumer protection authorities can make use of the existing EU legislation to tackle the issue of dual quality of products

When investigating potential dual quality cases, national enforcement authorities shall first assess the compliance of a food product with EU food law.

General Food Law Regulation

The general food law regulation ensures that only safe food products are placed on the EU market and that consumers are adequately informed and not misled with respect to the composition or characteristics of products for sale.

Food Information Regulation

Under the regulation on labelling of foodstuffs, information on a food product must not be misleading:

• either in respect of its characteristics (nature, identity, properties, composition, origin or provenance, method of manufacture or production); or
• by suggesting, by means of its appearance, description or pictorial representations, the presence of a particular ingredient when in fact a component naturally present or ingredient normally used in that food product has been substituted.

This regulation also sets out a list of mandatory information requirements regarding food products which must be provided to the consumer in a clear, accurate and easily understandable format.

After assessing whether food companies have complied with EU food law, enforcement authorities must, as a second step, investigate whether their marketing practices in relation to their food products also comply with EU consumer protection legislation.

Unfair Commercial Practices Directive (UCPD)

A commercial practice is in breach of the UCPD where:

• consumers have legitimate specific expectations of a product compared to a product of reference* and that the product in question significantly deviates from these expectations;
• the food company has omitted or failed to give adequate information to consumers and that they do not realise that there may be a difference from their expectations;
• this lack of information is likely to mislead consumers into buying a product they would not otherwise have bought.

Where unfair commercial practices affect or are likely to affect consumers in one or more EU countries apart from the country where the food company is established, the competent national consumer protection authorities also need to coordinate their work with their counterparts in other EU countries under the Consumer Protection Cooperation Regulation. This regulation requires national consumer protection authorities to mutually assist each other so that the authorities in the country where the food company is established can take all necessary steps to stop infringements of EU consumer law.

In addition to this guidance, the Commission has tasked its in-house scientific service, the Joint Research Centre, to develop and implement a harmonised testing approach and offers specific funding of EUR 1 million to EU countries under the Consumer programme to develop the necessary enforcement capacities.

BACKGROUND

For more information, see:

• Dual quality food products (European Commission).

KEY TERMS

MAIN DOCUMENT

Commission Notice on the application of EU food and consumer protection law to issues of Dual Quality of products — The specific case of food (OJ C 327, 29.9.2017, pp. 1-7)

RELATED DOCUMENTS

Regulation (EU) No 1169/2011 of the European Parliament and of the Council of 25 October 2011 on the provision of food information to consumers, amending Regulations (EC) No 1924/2006 and (EC) No 1925/2006 of the European Parliament and of the Council, and repealing Commission Directive 87/250/EEC, Council Directive 90/496/EEC, Commission Directive 1999/10/EC, Directive 2000/13/EC of the European Parliament and of the Council, Commission Directives 2002/67/EC and 2008/5/EC and Commission Regulation (EC) No 608/2004 (OJ L 304, 22.11.2011, pp. 18-63)

Successive amendments to Regulation (EU) No 1169/2011 have been incorporated into the original document. This consolidated version is of documentary value only.

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 and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) (OJ L 149, 11.6.2005, pp. 22-39)

Regulation (EC) No 2006/2004 of the European Parliament and of the Council of 27 October 2004 on cooperation between national authorities responsible for the enforcement of consumer protection laws (the Regulation on consumer protection cooperation) (OJ L 364, 9.12.2004, pp. 1-11)

See consolidated version.

Regulation (EC) No 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety (OJ L 31, 1.2.2002, pp. 1-24)

See consolidated version.

last update 09.01.2018