update on natural regulation and policy in the uk and the eu ......natural mineral water while the...

Update on natural regulation and policy in the UK and the

EU: How does it differ from the rest

of the world?

Food Matters Live 19th November 2014, London

Dr. Ina Gerstberger

All „natural“ foodstuffs?

� Some examples from the shelves

Ingredients: Tea (Water, Tea Extract from Tea

Leaves), Sugar, Citric Acid, Natural Flavour, Reb

A (Purified Stevia Extract).

Ingredients: Cultured Grade A

Reduced Fat Milk, Sugar, Natural

Vanilla Flavor, Pectin. Contains

Active Yogurt Cultures Including

L.Acidophilus.

Dr. Ina Gerstberger │ 2014 2

The truth about „natural“

The majority of consumers equal “natural” claims with more “healthier” products but only one third feels that it can really trust the term “natural” (Source: Mintel Group Ltd., 2012)

Why ?


The legal situation – Overview

� No uniform global definition of the term „natural“, e.g. in Codex Alimentarius:

- Sec. 5.1. (iii) Terms such as “natural” […] when they are used, should be in accordance with the national practices in the country where the food is sold. […]

� Only few countries worldwide have legal definitions of the term „natural“ in relation to products and/oringredients

� In the majority of countries assessment of the term „natural“ subject to individual decisions and/or legallynon-binding guidance


The legal situation –How does it differ in various jurisdictions?


The legal situation – EU (1)Existing legal provisions as to use of „natural“

� Nutrients/other substances according to the Annex of Regulation (EC) 1924/2006

- In this case it is allowed to advise the consumer that the relevant product is, for instance, a “natural vitamin C source”

Legal justification of an otherwise advertising with a self-evident fact


The legal situation – EU (2)Existing legal definitions as to „natural“


The legal situation – EU (3)Requirements as to a „natural“ production process


The legal situation – EU (4)What applies to other, non specifically regulated areas of products and/or ingredients?

Prohibition of misleading claims

- for foodstuffs -

The labelling, advertising and presentation of food shallnot (…) mislead consumers

(Art. 16 Regulation (EC) 178/2002)

Food information shall not be misleading,

in particular as to characteristics of the food and, in particular, as to its nature, identity, properties, composition, quantity, durability, country of origin

or place of provenance, method of manufacture or production, or […]

by suggesting that the food possesses special characteristics when in fact all similar foods possess such characteristics (…) ;

(Art. 7 (1) lit. a) and c) Regulation (EU) 1169/2011)


The legal situation – EU (5) What is „misleading“ under EU law?

A commercial practice shall be regarded as misleading if

- it contains FALSE INFORMATION and is therefore UNTRUTHFUL OR in any way, including overall presentation, deceives or IS LIKELY TO DECEIVE the AVERAGE CONSUMER, even if the information is factually correct, […]

(cf. Art. 6 Directive 2005/29/EC)

- it omits material information that the average consumer needs, according to the context, to take an informed transactional decision

(cf. Art. 7 Directive 2005/29/EC)

and thereby causes or IS LIKELY TO CAUSE the average consumer to

take a transactional decision that he would not have taken otherwise.


The legal situation - EU (6) Who is the one to assess on misleading claims?

Reasonably well-informed, observant and

circumspect average

consumer („The Intellectual“)

but as a corrective:

Consideration of „situation

specific attention“ (e.g. in Germany)

Social, cultural, linguistic factors may

enter into play to

define the presumed

expectations

It is sufficient if only a

part of the relevant publicis deceived

(„minority protection“)

If advertising is aimed at

a particular group of

consumers, the impact

has to be assessed from an average member of

the group


The legal situation – EU (7) What characterises the “average reasonably well-informed, observant and circumspect consumer” in relation to its judgement of label claims?

� Consumers whose purchasing decision depends on the composition of the product will first read the list of ingredients (CJEU, C-51/94 Commission v Germany and C-465/98 D'arbo)

� Circumspect consumers may be deemed to know that even where a food is promoted as “naturally pure”, it is not free of any residues and pesticides (CJEU, C-465/98 D'arbo)

� The contamination of the environment of GMOs is a fact which canhardly be unknown to the average consumer (Advocate General Léger, C-132/03 – Codacons)

� The consumer does not buy a product irrespective of its characteristicsor because the product has been subject of widespread publicity(Advocate General Cosmas, C-385/96 – Goerres)


The legal situation – UK (1)Criteria for the use of the terms […] natural in food labelling

Revised guidelines2008


The legal situation – UK (2)Summary FSA labelling guidance


The legal situation – UK (3) Examples from case law

� UK Advertising Standard Agency, Yoplait vs. Muller, 25 March 2009:

The ad: New Müller Little Stars. A helping hand from Mother Nature."

“All of which are pure and natural, so it's like getting a helping hand from mother nature“,

"100% natural ingredients".

The assessment: - Ad implied that the ingredients in Little Stars "were less processed and closer

to nature than they were".- Not „natural“ as the product contained gelatine, fruit concentrate and inulin as

well.


The legal situation – France (1)DGCCRF, French Guidance Note No. 2009-136

� The term „natural“ may only be applied to food products

- that come directly from nature; and

are sold in a form produced by nature and are not significantly altered by mechanical processing (ingredients sliced, minced, peeled, ground, crushed, shelled, dried or pressed...).

Substances that have undergone a stabilization process, cooking, fermentation, pressing, roasting and infusion may only claim “(of) natural origin” rather than “natural” as such.


The legal situation – France (2)Examples from case law (1)

� Decision of the Paris Court of Appeal from 18th May 2008

Milk products of SA Sociéte des laiterie Hubert

Triballat which were advertised with« RIANS 100% naturel, qui peut en dire autant,

« Recette 100% naturelle”

Misleading advertising due to the use of an additive in the products: The average consumer would actually expect a product “composed of

natural origin ingredients, without food additive or synthetically produced

substances” if “natural” is claimed.


The legal situation – France (3)Examples from case law (2)

� Decision of the Supreme Court, Chambre Criminell from 1st February 2000, n° 99-80825

“100 % naturel” (for sports nutrition products)and “certificate by laboratories because of the purity

and efficacy”

Misleading because of the used production method applied on the ingredients used in the product (here: hydrolysis of proteins by enzymatic means) as well as due to the addition of vitamins and minerals.


The legal situation – Germany (1)Examples from case law (1) – Product claims (purity)

� Administrative High Court of Baden-Württemberg, Judgement of 20 June 2013, docket no: 9 S 2883/11 –natural mineral water

While the average consumer expects mineral water to meet certain purity requirements that are already given by nature he does not know these purity requirements in particular and would therefore not expect an absolute purity.

The average consumer knows that pollutants can be found almost everywhere, including in such food which carries the purity designation “natural” or “bio” (also German Federal Court of Justice, judgement dated 13 September 2012, I ZR 230/11- Bio Mineral water).

19

The legal situation – Germany (2)Examples from case law (2) – Product claims (nature)

� Regional Court Hamburg, Judgement of 09 May 2008 -408 O 55/08

- The average consumer does not expect from the internet domain name “Bios-nature-pur.com” the trade of only completely untreated products. He knews that the processing of a soft drink requires more steps than the mere pressing of fruits. The consumer should however expect to receive a “natural product” which was the case here because the respective soft drinks traded contained exclusively certified organic flavours.


The legal situation – Germany (3)Examples from case law (3) – Ingredient claims

� Court of Appeal Hamburg, Judgement of 29 August 2013, 3 U 12/12 - “natural lactic acid cultures”

- The consumer would only deem a substance as “natural” if it had been obtained from nature as it is used in the product rather than previously processing it in a laboratory where the biochemical, resp. genetic condition of the substance was modified through an enzymatic selection process.

- The German Food Law differentiates between “natural substances”, “substances of natural origin“ and substances that are “chemically identical to natural ones” (cf. § 2 para. 3 clause 2 no. 1 German Food and Feed Code).

- This indicates that a differentiated assessment in view of “nature-related advertisements” must be made for substances other than flavours.


The legal situation –Overview on „the rest of the world“

USA Australia Canada Israel

Food Standards and

Labelling Policy Book

(USDA, 2005) for

meat and poultry

products („natural“ = no

artificial/syntheticingredient/chemicalpreservative + minimallyprocessed)

Food Descriptors

Guidelines, 2006

(quite similar to UK

guideline, but suggestionto include ‘contains no added food additives or artificial preservatives’ for further explanation of “natural”)

„Guide to Food

Labelling and

Advertising“, Method

of Production Claims,

Canadian Food

Inspection Agency

Labelling of Prepacked

Food Standard’, ‘Israeli

Standard SI 1145

§343 Food, Drug,

and Cosmetic Act:

‘Misbranded food’

(false or misleading

labelled food)

Trade Practices Act

prohibits misleading

advertising

Canadian Food and

Drugs Act, Food and

Drug Regulations,

the Consumer

Packaging and

Labelling Act

and Regulations etc.

Definitions on ‘natural

food product’, ‘natural

ingredients’ and

‘natural

like food ingredients’.


The legal situation –Details for Canada

� A food or ingredient of a food that is represented as natural (“Nature", "natural", "Mother Nature", "Nature's Way“) is expected:

- not to contain, or to ever have contained, an added vitamin, mineral nutrient, artificial flavouring agent or food additive;

- not to have any constituent or fraction thereof removed or significantly changed, except the removal of water. For example: the removal of caffeine.

- not to have been submitted to processes that have significantly altered their original physical, chemical or biological state (Annex 1 and 2 lists minimum and maximum processes which affect the natural character of food)

- an additive may be a “natural ingredient” if the processes used to produce the food additive should not significantly alter its original, chemical, or biological state (but the food containing that ingredient may NOT be called “natural” -> only single ingredient foods may be labelled “natural”)


The legal situation –Details for Israel

Natural food product

(NFP)

Natural ingredient Natural like ingredients

• not blended with other

foods,

• free of chemicals,

• processed with one or

several specified

processes (e.g.

mechanical and physical

processes, fermentation,

enzymatic treatments)

• allows some additional

processes compared to a

“NFP” like extraction,

reconstruction or

refining, provided no

chemicals are involved, or

chemical changes

induced.

• Ingredients may be

labelled as „natural

ingredient“ in the list of

ingredients if product

contains also other

ingredients, e.g. artificial

flavor)

• produced synthetically

and is identical in its

chemical formation and

content to the “natural

ingredient”

• labelling as “natural like

ingredient is only

allowed in the list of

ingredients


The legal situation –Wrap up

� „Natural“ - high risk of being considered misleading

Only true for unprocessed or only mechanically treated foods (in

nearly all jurisdictions)

Standards of processing of ingredients which would still beconsidered „natural“ may vary from jurisdiction to jurisdiction

Use of processed ingredients may not allow for overall „naturalclaims“ also in relation to food as such, but views may likewise vary

subject to the „naturalness of the ingredients“ used

Overall tendency to rather use more nature specific wordings“ like

„of natural origin“, „nature-identical“ ingredients, made from „naturalingredients“ instead of using mere „natural“ claims


www.wragge-law.com

Ingredients

Thank you for your attention !

Contact

Dr. Ina GerstbergerRechtsanwältin│DirectorHead of German Food & Drink/Life Sciences Sector Team

Wragge Lawrence Graham & Co LLP

Prinzregentenstraße 11a 80538 Munich

Email: [email protected]

www.wragge-law.com

This presentation does not replace any individual legal advice and should accordingly not

be made the sole basis for any decisions.

© Dr. Ina Gerstberger │ 2014 27

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