The matter at hand
The German company Teekanne marketed a fruit tea called ‘Felix raspberry and vanilla adventure’. The packaging comprised in particular depictions of raspberries and vanilla flowers, the indications ‘fruit tea with natural flavourings’ and a seal with the indication ‘only natural ingredients’ inside a golden circle. In fact, however, the fruit tea did not contain vanilla or raspberry constituents or flavourings, but, in the words of the list of ingredients printed on the packaging, ‘natural flavourings with a taste of vanilla and raspberry’.
The BVV, a German consumer protection association, brought an action against Teekanne submitting that the fruit tea’s packaging misled the consumer with regard to the contents of the tea within the meaning of Article 2(1)(a) of the Labelling DirectiveDirective No 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. The first instance court upheld the action, but that judgment was set aside in appeal on the ground that it was clear from the list of ingredients that the tea did not contain vanilla or raspberry constituents but only flavourings that tasted as such. The case was then presented to the Federal Court of Justice which referred it to the ECJ, asking, in essence, whether the Labelling DirectiveDirective No 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 precludes the packaging of a foodstuff from giving the impression that it contains a certain ingredient that in fact is not present in the foodstuff, if the list of ingredients printed on the packaging does make clear that the foodstuff does not contain that ingredient.
The judgment of the ECJ
While the ECJ recalls its own case law in which it acknowledged “that consumers whose purchasing decisions depend on the composition of the products in question will first read the list of ingredients” (paragraph 37) it considers that “the fact that the list of ingredients is displayed on the packaging (…) does not in itself exclude the possibility that the labelling (…) may be such as to mislead the purchaser (…)” (paragraph 38). In this regard, the ECJ refers to Article 1(3)(a) of the Labelling DirectiveDirective No 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, which defines labelling as “any words, particulars, trade marks, brand name, pictorial matter or symbol relating to a foodstuff and placed on any packaging”, some of which may be misleading, erroneous, ambiguous, contradictory or incomprehensible. “In that case, the list of ingredients, even though correct and comprehensive, may in some situations not be capable of correcting sufficiently the consumer’s erroneous or misleading impression concerning the characteristics of a foodstuff that stems from the other items comprising its labelling. Therefore, where the labelling of a foodstuff and methods used for the labelling, taken as a whole, give the impression that a particular ingredient is present in that foodstuff, even though that ingredient is not in fact present, such labelling is such as could mislead the purchaser as to the characteristics of the foodstuff” (paragraphs 40 and 41).
On this basis, the ECJ concludes that it is for the referring court to determine, “by examining the various items comprising the tea’s labelling, whether an average consumer who is reasonably well informed, and reasonably observant and circumspect, may be misled as to the presence of raspberry and vanilla-flower or flavourings obtained from those ingredients. In the context of that examination, the national court must in particular take into account the words and depictions used as well as the location, size, colour, font, language, syntax and punctuation of the various elements on the fruit tea’s packaging” (paragraph 42 and 43).