The European Court of Justice (ECJ) considered whether a products’ label might still be misleading even if the label provides all factual information about the product in Bundesverband der Verbraucherzentralen und Verbraucherverbände v. Teekanne GmbH & Co. KG, No. C-195/14 (E.C.J., order entered June 4, 2015).
The case concerned a German fruit tea under the name 'Felix Himbeer-Vanille Abenteuer' ('Felix raspberry and vanilla adventure') ('the fruit tea').
The packaging details comprised:
(i) illustrations of raspberries and vanilla flowers,
(ii) the indications 'fruit tea with natural flavourings' and 'fruit tea with natural flavourings - raspberry-vanilla taste'; and
(iii) a seal with the indication 'only natural ingredients' inside a golden circle.
The fruit tea did not in fact contain any vanilla or raspberry constituents or flavourings.
The list of ingredients, which was on one side of the packaging, stated: ‘… natural flavouring with a taste of vanilla, lemon peel, natural flavouring with a taste of raspberry, blackberries, strawberry, blueberry, elderberry.'
The tea therefore did contain natural flavourings but not of raspberries and vanilla but of other natural flavouring that had the ‘taste’ of raspberries and vanilla.
The ECJ found that it was a matter for the national court to decide upon whether a product was presented in such a way as to be capable, even in the case of a reasonably well-informed and reasonably observant and circumspect consumer, of creating a false or misleading impression as to its composition.
The ECJ concluded , “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.”
The food packaging was not permitted to give the impression by means of appearance, description or pictorial representation that a particular ingredient was present, when it was not, even though this may be clearly ascertained from the list of ingredients provided.
This reinforces at EU level the specific UK Guidance on not making pictorial representations of ingredients that are not present in the product. It also underlines the importance of assessing the impression provided by the overall packaging as well as the factual information provided.