Federal Court of Justice decides on the matter “Felix Himbeer-Vanille-Abenteuer”

The Federal Court of Justice has delivered its eagerly awaited decision in the legal dispute regarding the fruit tea marketed as “Felix Himbeer-Vanille-Abenteuer” (“Felix raspberry and vanilla adventure”) by the company Teekanne, further clarifying the requirements for protecting against misleading information.

What is the case about?

The Federation of German Consumer Organisations (VZBV) had taken legal action because it believed that packaging of the fruit tea sold as “Felix Himbeer-Vanille-Abenteuer” was misleading. The tea was sold as tea bags in the cardboard boxes typical on the market. The decorative side of the package showed the said name “Felix Himbeer-Vanille-Abenteuer” and had prominent depictions of raspberries and vanilla blossoms, among other things. Moreover, the statement “Fruit tea with natural flavourings” was optically highlighted and a seal was depicted containing the statement “only natural ingredients” inside a golden circle. The side of the product also showed the statement “Fruit tea with natural flavourings – raspberry-vanilla taste”. However, the list of ingredients correctly stated that the product did not contain either raspberries or vanilla or flavouring from raspberries or vanilla. In fact, only “flavouring with vanilla taste” and “flavouring with raspberry taste” had been added to the fruit tea described as “Felix raspberry and vanilla adventure”.

What was the status quo?

While the VZBV’s opinion was successful at the trial court, the appeal court, Düsseldorf Higher Regional Court, said that the presentation was not misleading. The Higher Regional Court based its opinion on the previous case law of the European Court of Justice (ECJ): in the cases Darbo (judgment of 04.04.2000 – C-465/98) and Sauce Hollandaise (judgment of 26.10.1995 – C-51/94) the ECJ explicitly emphasised the relevance of the list of ingredients. According to this case law, said the Higher Regional Court, misrepresentation was ruled out if the list of ingredients showed the correct composition of a foodstuff. The Federal Court of Justice, as the appeal court ruling on points of law, initially suspended the proceedings and presented the ECJ with the question of whether it is “permissible for the labelling, presentation and advertising of foodstuffs to give the impression, by means of their appearance, description or pictorial representation, that a particular ingredient is present, even though that ingredient is not in fact present and this is apparent solely from the list of ingredients.” Although the ECJ did not explicitly distance itself from its previous case law in the decision subsequently given, its content was markedly different from that of previous decisions. The ECJ confirmed that the presumed expectations which a reasonably well-informed and reasonably observant and circumspect consumer has based on the overall impression given by the product presentation were relevant for assessing whether it was misleading. At the same time it pointed out that it should also be assumed that consumers whose purchasing decisions depend on the composition of the products in question will first read the list of ingredients. However, the ECJ made clear for the first time that the overall impression given by the presentation of the product can be misleading even though the list of ingredients is correct.

However, the ECJ was only able to judge the abstract legal issue and not the specific individual case involving “Felix Himbeer-Vanille-Abenteuer”. This was the responsibility of the national court, in this case the Federal Court of Justice. However, it was already implicitly clear from the ECJ decision that the ECJ (also) regarded the Teekanne packaging as being misleading. It had identified in detail the elements of the Teekanne packaging which constituted misleading information and had already provided the Federal Court with specific criteria for evaluating the overall impression and consequently for assessing whether it was misleading. These implied that the Federal Court had to “in particular take into account the words and depictions used as well as the location, size, colour, font, language, syntax and punctuation of the various elements on the fruit tea’s packaging”.

Decision of the Federal Court of Justice

Against this background, the decision given by the Federal Court of Justice today is by no means surprising.

In line with the standards established by the ECJ, the Federal Court confirmed that the presentation of the product “Felix Himbeer-Vanille-Abenteuer” was misleading and reinstated the trial court’s decision on the following grounds: The prominent information “Himbeer-Vanille-Abenteuer” and the depictions of vanilla blossoms and raspberries mislead consumers into assuming that the tea contains constituents or flavourings from vanilla and raspberries. The correct list of ingredients is not capable of dispelling this misleading impression. All the information on the labelling of the packaging has to be reviewed from the perspective of a reasonably well-informed and reasonably observant and circumspect consumer based on the overall impression given by the product’s presentation. If the labelling and the nature of the design as a whole give the impression that the foodstuff contains an ingredient that is in fact not present, there may be a risk that it will be misleading. In the case in question the product was to be confirmed as being misleading since the prominent information indicated that the tea contained constituents of vanilla and raspberry.

What does this mean in practice?

Although the decision of the Federal Court of Justice and that of the ECJ still relate to the Labelling Directive 2000/13/EC on the labelling, presentation and advertising of foodstuffs, which has meanwhile expired, it still remains effective under Regulation (EU) No 1169/2011 (Food Information Regulation – “FIR”) which has been in force since 13.12.2014. The FIR also contains a prohibition on providing misleading information and a transparency requirement. Art. 7(1)(d) and (4) FIR in particular explicitly states that the presentation of a foodstuff including the packaging may not suggest by the “appearance, the description or pictorial representations, the presence of a particular food or an ingredient, while in reality a component naturally present or an ingredient normally used in that food has been substituted with a different component or a different ingredient”.

The judgment of the Federal Court of Justice is relevant for food manufacturers and for food traders. While under the FIR the party under whose name or firm name the foodstuff is marketed and whose name is on the packaging is primarily responsible, traders are nevertheless not allowed to supply food which they “know or have to presume”, on the basis of the information in their possession as professionals, does not comply with the applicable food information law. In the Teekanne case, traders were certainly able to recognise on the basis of the list of ingredients that the tea does not contain any constituents of raspberries and vanilla and that, despite this, the packaging misleadingly emphasises constituents of raspberries and vanilla. In such cases the courts are therefore also able to assume that the trader is breaching the prohibition on supplying such products (although experience shows that authorities, competitors or associations will primarily target the manufacturer applying the label).

Although it is not possible to rule out responsibility on the part of the traders under administrative law, traders can at least pass on the cost risk to their suppliers. To do so, the trader will have to exclusively allocate the responsibility for correct and non-misleading product labelling to the supplier by contractual means.

Conclusion

In conclusion, it is fair to say that the Teekanne case will have significant consequences in practice. The courts will now be stricter when assessing whether a product is misleading; in particular, the misleading effect initially created by the appearance of a product is not automatically cancelled out by having a correct list of ingredients. This should be taken into account when designing the packaging. In future it will be important to pay attention to the fact that even a correct and complete list of ingredients cannot always rectify a false association potentially suggested by the packaging, especially where the symbolic depiction of flavourings, the names of foodstuffs, the QUID rules or deviations from the guidelines of the German Food Book Commission are concerned.