BiFi judgment of the ECJ on the substitution scheme – name of the product and name of the food have the same meaning

The ECJ has ruled in its judgment of 01.12.2022 - C- 595/21 - that the term "name of the product" in the substitution ingredient scheme in Annex VI Part A No. 4 Regulation (EU) No. 1169/2011 ("LMIV") and "name of the food" in Article 17 LMIV have the same meaning.

The facts of the case

The ECJ ruling is based on the following facts: the substitution rule in Annex VI Part A No. 4 of the LMIV stipulates, in the case of foods where a component or ingredient that consumers expect to be normally used or is naturally present has been substituted with a  component or ingredient other than the one expected, that the labeling shall bear, in addition to the list of ingredients, a clear indication of the component or the ingredient that has been used for the partial or total substitution. The purpose of the substitution rule is to improve the protection against deception, i.e., to make visible the substitution of "value" ingredients with "less value" ingredients. Therefore, Annex VI Part A No. 4 LMIV also provides that the indication of the substitution component or ingredient must appear in close proximity to the name of the product and use a font size which has an x-height of at least 75% of the x-height of the name of the product.

It was disputed as to what is to be understood by "name of the product". The product at issue had the words "BiFi The Original Turkey" on the front and " Mini Poultry Salami with palm fat and rapeseed oil" on the back. "BiFi The Original" is a word/figurative mark registered under German law and a figurative mark registered under Union law. The Bavarian authorities considered that the indication "with palm fat and rapeseed oil" should also be added to the front of the packaging after the trade name "BiFi The Original Turkey" in order to make it clear to consumers that the mini poultry salami contains palm fat and rapeseed oil as a substitute for animal fat.

About the decision

The ECJ ruled that the term "name of the product" contained in Annex VI Part A No. 4 of the LMIV does not have a  separate meaning that is different from that of the expression "name of the food" within the meaning of Article 17(1) of the LMIV, so that the specific labelling requirements in Annex VI Part A No. 4 of the LMIV do not apply to the "name protected as intellectual property", the "brand name" or the "fancy name" within the meaning of Article 17(4) of the LMIV.

In support of its view, the ECJ refers to the fact that the term "name of the product" is used exclusively in Annex VI Part A No. 4 of the LMIV and is not defined in the Regulation. Even if the German and the French language version of the LMIV would give the impression that the terms "name of the product" and "designation of the food" are two independent terms, this is not covered by the other language versions cited in the paragraph above. Moreover, it is clear from the legal definition of the expression  "food" in the LMIV that the term "name of the product" cannot mean anything other than the expression "name of the food". In addition, the ECJ refers to the systematic context in which the provision of Annex VI, Part A, No. 4 of the LMIV fits, which deals with the mandatory particulars accompanying the “name of the food". Finally, the ECJ states that the high level of consumer protection of the LMIV is guaranteed and refers to its previous case law on the average consumer who is reasonably well-informed and reasonably observant and circumspect.

Outlook

The ECJ's ruling puts an end to the authorities' view, held for many years, that the expression "name of the product" can mean both the name of the food, but also a fancy name or a brand name. It would be welcome if the ECJ ruling is also taken into account in the revision of the guiding principles for vegan and vegetarian foods with similarities to foods of animal origin. These are based on both the "name of the food" and the "name of the product" as a triggering event, whereby the understanding is explicitly given that the scope of application of the guidelines should also be opened up if a reference to foodstuffs with animal ingredients is made in a fancy name  or in a brand name. This is no longer justifiable after the ECJ ruling.