This report addresses the legal limits of “Clean Labelling”.
Annex of Regulation (EC) 1924/2006 lays down the conditions for claims such as:
A claim that a food is fat-free, and any claim likely to have the same meaning for the consumer, may only be made where the product contains no more than 0,5 g of fat per 100 g or 100 ml. However, claims expressed as ‘X % fat-free’ shall be prohibited.
A claim that a food is sugar-free, and any claim likely to have the same meaning for the consumer, may only be made where the product contains no more than 0,5 g of sugar per 100 g or 100 ml.
In addition “Clean Labelling” may be considered “self-evident” and “flagrantly misleading” advertising according to the following regulations:
Article 7(1)(c) of 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 lays down:
1. Food information shall not be misleading, particularly
c) by suggesting that the food possesses special characteristics when in fact all similar foods possess such characteristics,in particular by specifically emphasizing the presence or absence of certain ingredients and/or nutrients
§ 5 UWG also considers a claim misleading and unfair if a claim is arguably obvious, unnecessary and irrelevant, since compared to foods that possess the same characteristics the products are in no way special.
The above articles (article 7 1c of Re. 1169/2011 and § 5 UWG) aim to prohibit overall presentations causing confusion that the product in question is special compared to others possessing same characteristics. In most cases the claims comply with consumer demands in order to inform them better and more precisely about the composition of the product.
The German Federal Court of Justice made this clear in its ruling on a bio mineral water. The customer does not assume that labeling mineral water as "organic" means it is subject to statutory requirements or state supervision, the Supreme Court ruled in 2013. There are regulations for the use of “organic” when referring to agricultural products, but this fact does not inherently mean that the term may not be used in the absence of a statutory provision. The Federal Court emphasized that what a customer expects from an organic-designated mineral water is, "that it is not only untreated and free of additives, but also is, in terms of residues and contaminants, well below the proposed maximum levels of natural mineral waters". Mineral waters, which were significantly below the legal limits, differed from those in which the levels of residues and contaminants were close to these values.
For that reason claims just describing the product or giving particular details about them do not fall inherently under the above regulations. The key question is whether consumers are misled. So if the consumer for instance does not know that all products of the same category do not contain “lactose” a claim such as “lactose-free” does not cause any problems.
We feel that control bodies rather argue on the basis of the above regulations (Re 1169/2011 and UWG), whereby courts are much more reluctant to consider clean labelling self-evident.