Food labelling – National rules on mandatory indication of the country of origin

A few days ago, the Court of Justice of the European Union (“CJEU”) gave its ruling in the Lactalis case (Case C-485/18). In answering the French Conseil d’État’s request for a preliminary ruling, the CJEU has brought clarity to some of the rules concerning the country of origin’s mandatory indication for food products, which is contained in Regulation 1169/2011 (Food Information to Consumers, or “FIC Regulation”). This is the third decision of the CJEU on the concept of “country of origin” in a (bit more than a) year.

Facts

On 17 January 2017, a French decree entered into force containing, among other things, rules on the mandatory indication of the country of origin for milk. Lactalis brought, before the Conseil d’État, an action seeking the annulment of this decree; it invoked, among other arguments, that the decree infringed Articles 26, 38 and 39 of the FIC Regulation.

Request for a preliminary ruling

The Conseil d’État decided to stay the national proceedings and refer some questions to the CJEU for a preliminary ruling. In answer to these questions, the CJEU has developed the following points:

• the possibility for Member States to adopt national rules on the country of origin’s mandatory indication for food products;
• the criteria that Member States should respect in doing so; and
• does the ‘qualities of the food’ criteria include the resilience of the food to transport and the risk of deterioration during transit?

National rules on the mandatory indication of the country of origin of food products

The basic rule[1] under the FIC Regulation is that the indication of the country of origin (or place of provenance) is mandatory where failure to indicate it might mislead the consumer about the food’s true country of origin (or place of provenance).[2] For instance, if a typical Italian product is produced in Belgium with packaging referring to Italy, then the consumer might be misled into thinking that the product comes from Italy.

The CJEU has found that this basic rule is a ‘matter specifically harmonised’[3] meaning that national rules on the mandatory indication of the country of origin (or place of provenance) can only be adopted if they are compatible and form one coherent whole with the FIC Regulation.

Applicable criteria for such rules

Besides being compatible and coherent, the national rules have to be justified on one of the grounds of Article 39 FIC Regulation[4] (in the present case, consumer protection) and respect the following criteria:

• there must be a proven link between certain qualities of the food and its origin or provenance; and
• evidence should be provided that the majority of consumers attach significant value to the provision of that information.[5]

In the Lactalis ruling, the CJEU has explained that these two criteria must not be considered in combination but rather must be examined successively. In other words, these criteria will not be fulfilled if a Member State merely proves that a majority of consumers make a subjective association between the origin (or provenance) of a specific food product and certain qualities.

Resilience of the food to transport and the risk of deterioration during transit

Finally, the CJEU has examined if the concept of “qualities of the food” (under Article 39, §2 FIC Regulation) includes the resilience of the food to transport and the risk of deterioration during transit. The CJEU has explained that the concept of “qualities” refers only to the qualities that distinguish the foods that possess them from similar foods that, due to their different origin or different provenance, do not possess them.

For milk, this “resilience” has not been proven to be linked to a specific origin or provenance, it can thus be possessed by milk that does not have that origin or provenance and it can therefore be guaranteed independently from that origin or provenance.

For this reason, this “resilience” cannot be considered as a “quality” of milk that can be used to prove that there is a link between certain qualities of the food and its origin or provenance under Article 39, §2 of the FIC Regulation.

Conclusion – Legal clarity

In its preliminary ruling, the CJEU has only ruled on points of law and not on the merits of the case. Hence, it will ultimately depend on the French Conseil d’État to determine if the French legislation in question is in breach of the FIC Regulation.

However, this CJEU ruling does bring some welcome clarification to national rules on the mandatory indication of the country of origin in the food sector, a field in which the interests of food companies and national legislators do not always align.

For more information on labeling requirements in the food sector, do not hesitate to contact our expert Carmen Verdonck.

[1] Specific rules for meat also apply, see Article 26, 2, (b) of the FIC Regulation.

[2] Article 26 of the FIC Regulation.

[3] Within the meaning of Article 38(1) of the FIC Regulation.

[4] The protection of public health; the protection of consumers; the prevention of fraud; the protection of industrial and commercial property rights, indications of provenance, registered designations of origin and the prevention of unfair competition.

[5] Article 39, §2 FIC Regulation.