The pitfalls of seduction (2)

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

Consumer organisations have been calling for attention to misleading food advertising for years. This issue is also high on the agenda of government and industry (1). Nevertheless, things still often go wrong, because it is not always clear where the line is between what is allowed and what is not. In Vakblad Voedingsindustrie March I discussed the general ban on misleading advertising. Now it's about the new rules (2) for voluntary designation of origin.

Designation of origin and deception

If a producer claims or creates the impression that a product - or an ingredient contained therein - originates from a particular country or region when the product actually has a different origin or provenance, this can lead to deception. There are many different rules on (mandatory) indications of origin. This contribution concerns the rules for 'voluntary indication of origin'. Since 1 April this year, new rules apply to the way in which this is indicated. This concerns the manner (including size and location) of the indication on the label. One of seven prescribed methods must be chosen for the indication. And in all cases in those words.  

Voluntary indication of origin

Voluntary indication of origin refers to the situation where the legislation does not prescribe; where the producer voluntarily indicates a country of origin or place of provenance of a product, but the 'primary ingredient' comes from another country. A 'primary ingredient' is the ingredient that constitutes more than 50% of the product or is usually associated with the name of the product by the consumer. This usually requires a quantitative indication. Think of the indication 'Belgian chocolate', with 60% cocoa originating from Ghana. Or coffee from Brazil; with an Italian flag on the label.

Definitions

'Country of origin' is the country from which the product was obtained. Where several countries are involved in the production, the country of origin is the country in which the last substantial, economically justified processing leading to the manufacture of a new product or representing an important stage of manufacture took place. If cheese is produced in the Netherlands using German milk, the country of origin of that cheese is the Netherlands. The 'place of origin' is the place from which the foodstuff originates according to the indication and which is not the same as the country of origin.

The Food Information Regulation stipulates that if the country of origin or the place of origin of an ingredient is not the same as where the primary ingredient comes from, then:
(a) the country of origin or place of provenance of the primary ingredient is also indicated; or
(b) an indication that the country of origin or place of provenance of the primary ingredient is different from that of the product.

Indications

Indication of origin can be done in different ways. By certain word usage on the label ('Italian pasta'), but also by images, symbols or terms that refer to places or geographical areas, such as flags and maps, national symbols or monuments (such as the Eiffel Tower) or a typical landscape. 

Indications such as 'type - style - recipe - inspired by - à la' or similar, followed by a geographical indication, usually refer to specific characteristics or the production process of the foodstuff. These texts are generally not considered to be an indication of origin. Think of 'Greek style yoghurt'.

The existence of deception is determined on a case-by-case basis. We consider the location, size and colour of the symbols/presentations, the font size and the overall picture of the labelling. The label as a whole, possibly in combination with advertising; none of this should create confusion about the origin of the foodstuff. As in the general prohibition of misleading (3).

Exceptions

There are exceptions to these rules. I'll discuss two:
- A registered word and/or figurative trademark does not provide an indication of origin. For example, a Dutch confectionery manufacturer that has a logo that includes a mountainous landscape is not obliged to indicate on the label of sweets that the sugar comes from a different area (than the 'suggested mountainous region').
- The rules do not apply to common and generic names, including geographical terms which are not generally understood as an indication of the origin or place of provenance of the foodstuff. Examples are the 'Wiener schnitzel' and 'Frankfurter sausage'.

www.dvan.nl 

(1) See Food Labelling Action Plan 2020, December 2019.
(2) Commission Implementing Regulation (EU) 2018/775
(3) Regulation (EC) No 1169/2011

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