The pitfalls of seduction

Marketing is seduction and that involves a certain exaggeration. But exaggeration is not without risks: seduction can turn into deception. And that is forbidden.  

Storytelling is trending in food marketing. Where do the ingredients come from, how is a product made and by whom? Telling a story turns out to be an effective method of influencing people. And because a good story and attractive presentation sell well, they push the boundaries. Consumer organisations have been calling for years for attention to misleading food advertising. This subject is also high on the agenda of the government and the business community itself (1). Nevertheless, it still goes wrong frequently, because it is not always clear where the boundary lies between what is allowed and what is not. 

In three parts we discuss the most important rules. This first part focuses on the general ban on misleading information. In the following parts we discuss the new rules on voluntary designation of origin and the legal product names.

A forest of laws and rules 

There are a lot of rules for the marketing of food products. In particular, they deal with correct and honest information for consumers. Deception must be prevented. The fact that the rules sometimes differ within Europe makes it even more difficult in practice. In the Netherlands, for example, 'ice cream' can only be called that if it contains at least 5% milk fat (2), while Belgium prescribes 8% milk fat (3). Sometimes legal regulations are very concrete, such as with regard to the declaration of ingredients. In other cases they contain open standards, such as the prohibition of 'deception'. 

General prohibition of deception 

The general ban on misleading consumers can be found in various legal regulations (4) and self-regulation (5). For a long time, the starting point was that if the ingredient declaration of a product is correct, a consumer could not be misled by its packaging or advertising. With the well-known Teekanne judgment (6) this principle has been nuanced. Sometimes a correct ingredient declaration cannot correct a false impression given to a consumer on the basis of the overall impression of the presentation of a foodstuff. Therefore, a manufacturer will not get away with just a good ingredient declaration anymore. 

100% claims

For example, the Advertising Code Committee (RCC) has complained about the claim '100% Xylitol' on the packaging of XyliFresh chewing gum. The product contains the sugar substitute Xylitol (99.7%). However, the ingredient declaration shows that the product also contains 0.1% Aspartame. It was judged that 100% has such an absolute meaning that it is 'by its nature unsuitable to be nuanced' by a correct ingredient declaration (7). So deception.

Another complaint about chewing gum. This time about the claim '100% natural' on the packaging of BenBits. The indication 'natural' is (except for flavourings) not legally regulated. According to the RCC, the average consumer will assume that a product then only contains natural ingredients(8). These are ingredients that have a natural origin or that have been obtained by means of a 'traditional method of preparation'. Now that the manufacturer could not prove that the product only contains such ingredients, the claim is misleading.

Indication of specific ingredient 

Foodwatch filed a complaint about Optimel 'Vla Vanille'. The product mentions a specific ingredient in its name; 'vanilla'. In the same context, there are no statements on the packaging indicating that the word 'vanilla' is exclusively intended to indicate the taste of the product. In such a case, the product must actually contain Vanilla (an extract or the natural y-aroma), otherwise misleading (9). 

Mona's 'Limoncello pudding' suffered the same fate. The RCC is of the opinion that when a product is specifically named after a certain ingredient, the consumer probably assumes that this product contains that ingredient to a certain extent. But the product does not contain Limoncello. Considering the rest of the packaging, this is misleading (10). 

Nuance missing

More enlightened is the next case. Foodwatch has complained about the use of the designation 'wholemeal' (for various products). The complaint also affected Bolletje 'wholemeal biscuit'. According to Foodwatch, this designation is misleading because the product does not contain only wholemeal. Although Bolletje does not claim '100% wholemeal', according to the RCC it is still misleading. The RCC assesses - in line with 'Teekanne' - the entire product packaging (front and back). The product states 'dark wholemeal' on the front; not as an indication of the product, but in a striking way, in combination with different colours and the depiction of wholemeal stalks. According to the RCC, the consumer will see this as an 'explicit' claim about the composition of the product. In the absence of any nuances, the average consumer expects the product to consist exclusively of wholemeal flour. This is reinforced by the addition of 'dark' and the claims 'full of iron' and 'tasty natural'. The inaccurate overall impression of the packaging cannot be removed here by a correct ingredient declaration, which neatly stated that the product consists of 32% non wholemeal wheat flour. 

The boundary between permitted temptation and unlawful deception appears to be difficult to draw in practice. What is and what is not permitted is complex, especially when open standards such as 'deception' have to be applied. 

www.dvan.nl 

1. See Food Labelling Action Plan 2020, December 2019.
2. Commodities Act Ordinance Reserved Designations
3. Royal Decree on ice cream
4. See inter alia Regulation (EU) No 1169/2011 on the provision of food information to consumers, Commodities Act Decree Food Information and the Civil Code.
5. The Dutch Advertising Code - General section and the Advertising Code for Foodstuffs.
6. Court of Justice EU 4 June 2015, C-195/14
7. BoE 23 June 2016, 2016/00105
8. RCC 20 March 2017, 2016/00917
9. BoE 16 May 2019, 2018/00701
10. RCC 13 December 2016, 2016/00879
11. RCC 19 September 2019, 2019/00353

Photos: mainphoto: © Artur Szczybylo/Shutterstock.com, Photo Marco Balhuizen: © Sander Heezen