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Nutri-Score: The colour guide for informed food choices faces complex legal issues

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pulished on 11 November 2020 | Reading time approx. 9 minutes

  

“Nutri-Score” means a system for labelling the nutritional profile of a food product on the front of the packaging using classification letters and traffic light colours. While this logo has already been in use for a number of years in other member states such as France, Belgium and Spain, in Germany it is only now that the conditions for legally certain use of this nutrition labelling model have been created based on the first regulation amending the Food Information Implementing Regulation of 21 October 2020. This article gives, first of all, an overview of the background situation and the functionality of the Nutri-Score label as well as the relevant German regulations, and, secondly, addresses various legal issues, in particular the enforcement possibilities under trademark and unfair competition law as well as legal consequences in the event of infringements by users (usually manufacturers) themselves or by third parties (e.g. traders).



Background situation and functionality

Nutrition labelling is mandatory throughout the EU for almost all prepacked foods (see Regulation (EU) No 1169/2011, FIC ) and takes the form of a nutrition table. The table indicates the energy value, as well as the content of fat, saturates, carbohydrate, sugar, protein and salt per 100g/100 ml. In addition, on a voluntary basis, the most important elements of the nutrition information may be repeated in the principal field of vision of the package (usually on the front, therefore “front of pack”) either per 100g/ml or per portion (Article 30(3), Article 34(3)(a) FIC). Moreover, it is also possible to refer this information to reference intakes of energy and nutrients and express as a percentage the share of a serving in these reference intakes (Article 32(4)FIC). In addition to the forms of expression and presentation contained in the nutrition declaration, other forms, e.g. graphical forms or symbols, may also be used provided that they are based on sound and scientifically valid consumer research and do not mislead the consumer (for these further conditions please see Article 35(1) FIC). In recent years, public bodies, health NGOs and/or private sector entities have developed many such “front-of-pack” systems (e.g. keyhole label, NutrInform Battery, heart/health label). According to the European Commission report published in May 2020, this type of labelling has potential for helping consumers make more informed and healthier food choices. As part of this development, a voluntary, graphic-based nutrition label is now also available in Germany: the Nutri-Score®. The Federal Council approved the relevant draft regulation on 9 October 2020. The first regulation amending the Food Information Implementing Regulation of 21 October 2020 was published in the German Federal Law Gazette on 5 November 2020 and entered into force on 6 November 2020. 

Nutri-Score® is registered with the European Union Intellectual Property Office (EUIPO) as a European Union collective mark (Regulation (EU) 2017/1001, EUTMR). The trademark proprietor is Santé publique France (SPF), a subordinate authority of the French Ministry of Health. The Nutri-Score label differs from the mandatory labelling and the options mentioned above in that it does not provide information on energy value and the above-mentioned nutrients, but an assessment of the composition of foods by means of a 5 level colour and letter scale, where A in dark green is the best and E in dark red is the worst category.

Source: (in German) Erste Verordnung zur Änderung der Lebensmittelinformations-Durchführungsverordnung from 21 October 2020


This should enable consumers to identify “at a glance” the most nutritionally beneficial foodstuffs within a product group.

The evaluation is carried out using an algorithm which awards “plus points” for nutritionally beneficial ingredients of foods (fibre, protein, fruit, vegetables or nuts) and “minus points” for ingredients whose excessive intake is associated with an increased risk of disease (saturates, salt and sugar). The total number of points computed in this manner is in turn converted into a specific colour of the Nutri-Score label resembling a traffic light. However, the packaging does not contain information about how the overall assessment is arrived at. Only the labelling being the result of the computation is presented. The different colours and letters inevitably suggest the consumer whether the food is “good” or “bad” in terms of nutritional value, even though the Federal Ministry of Food and Agriculture repeatedly points out that the Nutri-Score does not provide any information as to whether a given food product is healthy or unhealthy, since only foodstuffs which are harmless to health may be placed on the market at all. Undisputed is however the fact that the Nutri-Score does not provide any guidance as to the generally balanced diet (in contrast to e.g. the DGE nutritional recommendations). It must therefore be indeed critically questioned whether a mere colour and letter scale without any comment can really serve the purpose of promoting a healthy diet.


Overview of changes to Article 4a of the Food Information Implementing Regulation

Indeed, the introduction of this additional labelling system in Germany should be viewed against the background of the increasing obesity rates in the population and the associated risk of developing secondary diseases. In order to counteract this, the Federal Government has endeavoured to further develop nutrition labelling to provide simple and understandable information on the nutritional values of foodstuffs. Various models were discussed (e.g. keyhole label, food sector model). Stakeholder consultations, a nutritional assessment by the Max Rubner Institute and representative consumer research by Info-GmbH on four previously selected models were carried out as part of the decision-making process, and they showed that the Nutri-Score was scientifically valid and the one that was best perceived among consumers and most understandable to them.

The Food Information Implementing Regulation (LMIDV) was therefore supplemented with a new Article 4a. According to that Article, enterprises will be allowed to place foodstuffs featuring the Nutri-Score label on the German market (Article 4a (1) LMIDV new). The specific conditions of use, including persons authorised to use the Nutri-Score Logo (basically all food manufacturers and traders in the EU) and sanctions in the event of non-compliance are laid down in the relevant usage regulation. The regulation clarifies, among other things, that the Nutri-Score Logo can be used as a form of presentation additional to the mandatory nutrition declaration on the product label and for the purposes of communicating or promoting a product. Creating such an explicit provision in German law was considered essential for ensuring the legally certain use of the Nutri-Score Label. This is because at least the green-coloured categories of the Nutri-Score label (i.e. the obviously positive categories A (dark green) and B (light green)) can be considered as nutrition claim within the meaning of Article 2(2) No 4 of Regulation (EC) No 1924/2006 (NHCR) , the use of which is prohibited subject to permission (Article 8 NHCR) at EU level. For this reason, before it was adopted, the new Article 4a LMIDV was also notified at EU level in accordance with Article 23 NHCR, which also eliminated any risks of blocking certain forms of voluntary nutrition labelling.

Article 4a (2) LMIDV new clarifies that the use of the Nutri-Score label is voluntary. The voluntary use of the Nutri-Score labelling already follows from EU law (Article 35 (1) FIC); making the use of the labelling mandatory would be incompatible with EU law (in particular freedom of movement of goods). Furthermore, Article 4a (3)LMIDV new clarifies that the responsible food business operator must comply with the conditions laid down in the usage regulation when using Nutri-Score and that registration with the trademark proprietor Santé publique France is required. This is done online. It should be noted that the use of the Nutri-Score Logo is free of charge. The legislator has deliberately refrained from implementing provisions reflecting the usage regulation in national law, because, on the one hand, the legislator wanted to avoid pure copying, and, on the other hand, any future changes to the usage regulation would necessitate changes to the national regulation. Finally, to assist economic operators, Article 4a(4) LMIDV new enables the Federal Ministry of Food and Agriculture to publish sample forms concerning the necessary consents of the trademark proprietor Santé publique France in the Federal Gazette and to enable contacting the latter by providing sample forms translated into German.


Trademark and unfair competition law issues in the event of non-compliance

The introduction of the Nutri-Score raises a number of legal questions. As already mentioned, it involves the use of a collective mark with the function of providing information about the nutritional values of the foodstuff thus labelled, while at the same time the trademark serves to distinguish a product from products which do not have the Nutri-Score label. This additional nutrition labelling is explicitly voluntary. However, if a food business operator decides to use the Nutri-Score, will he be obliged to label all foods marketed under the same (umbrella) brand? Here, it is useful to take a look at the usage regulation. It stipulates that the registration enabling the use of the Nutri-Score Logo also involves the obligation to use it for all products which the applicant places on the market under the brand(s) registered by him. Both the Nutri-Score FAQ and the German Federal Ministry of Food and Agriculture therefore assume that a company which has voluntarily registered to use the Nutri-Score also undertakes to label all foodstuffs with the Nutri-Score after a transitional period. This, of course, calls into question the voluntary nature of labelling provided for in Article 35 and Article 4a(1) LMIDV. And what happens if a registered company nevertheless takes the liberty of deciding on a case-by-case basis whether or not to use this voluntary label for a particular product?

The latter concerns the generally exciting subject of the legal consequences and their enforcement in the event of non-compliance with the guidelines for using the Nutri-Score label. Other cases of legal relevance include e.g. the use of this label without prior registration with the trademark proprietor and the inappropriate labelling of products with the Nutri-Score Logo, in particular with a better classification letter and colour based on “prettied up” nutrition facts of a particular product. It should be noted, however, that not always appropriate means of redress are available to those competitors who may have a fundamental interest in pursuing such cases of non-compliance. In terms of trademark law, the use of the label despite failure to register constitutes an infringement of the registered EU trademark, which is something which Santé publique France, as the proprietor of the trademark, is primarily entitled to take action against. Other parties authorised to use the Nutri-Score label, such as registered food business operators, can, however, only assert claims under trademark law if Santé publique France as the proprietor of the trademark consents to that (since there is no general consent in the usage regulation, individual consent is required, Article 80 (1), Article 25 (3) sentence 1 EUTMR).

In addition, only Santé publique France could claim compensation on behalf of persons who have authority to use the mark where they have sustained damage in consequence of unauthorised use of the mark (Article 80 (2) EUTMR). Also non-registered food business operators may generally have an interest in asserting means of redress, in particular against competitors that are not entitled to use or use a Nutri-Score sign with a “prettied up” classification letter and colour. But from the point of view of trademark law, they do not have locus standi to claim such redress.

In such cases and in cases of inappropriate labelling as a result of “prettied up” nutrition facts, claims under competition law are possible. In the latter case in particular, the perpetrator usually violates the prohibition of engaging in a misleading commercial practice under unfair competition law (Article 5 (1) No. 1 of the German Unfair Competition Act (hereinafter called UWG )). This is because inappropriate labelling is misleading as to the nutritional values of the product thus labelled. Furthermore, if an enterprise uses the Nutri-Score logo without prior registration it is misleading consumers by claiming it is entitled to use it, which constitutes a misleading claim within the meaning of Article 5 (1) no. 3 UWG . Other food business operators, in particular those who use the Nutri-Score label in a justified manner, can therefore assert claims for injunctive relief and, where appropriate, claims for damages due to unauthorised use, insofar as they are in a specific competitive relationship (Article 8 (3) No. 3, Article 9 UWG); competition and consumer associations as well as chambers of industry, commerce and crafts (Article 8 (3) No. 3 UWG) also have locus standi to assert claims for injunctive relief. In both cases, however, the trademark proprietor does not have locus standi due to lack of competitor status.

 

Food companies using the Nutri-Score should also be aware that infringements of the conditions of use may have contractual consequences (injunctive relief or damages), as it can be assumed that registration creates a contract between the company and Santé publique France. It is questionable whether the French authority would indeed assert and legally enforce such claims.


Possible courses of action in the case of “imposed” use of the Nutri-Score

In cases where a food business operator does not decide himself to place the Nutri-Score label on his product, but third parties (e.g. online platforms or food retail stores) indicate the labelling independently of the manufacturer's will (the so-called imposed Nutri-Score), the question of liability in case of infringements arises. Non-commercial online platforms that only provide information on food to consumers already lack the element of performing a commercial activity and therefore are not subject to liability under trademark law or unfair competition law. It can be assumed that the trademark proprietor will not act of his own accord against a platform that might even be financed by him. The only thing that remains are tortious claims, e.g. if the Nutri-Score labelling is incorrect due to a wrong computation of nutritional values, which can happen if the retailer does not know the exact nutritional values of the product concerned, thereby causing damage. This is different in the case of food retail stores, as here this might involve, on the one hand, engaging in a misleading commercial practice within the meaning of Article 5 (1) UWG because the impression is created that the manufacturer himself uses the Nutri-Score labelling, and, on the other hand, discrediting (Article 4 (1) No. 1 UWG) and/or engaging in a misleading commercial practice in the case of incorrect computation of the nutritional values and thus inappropriate Nutri-Score labelling (Article 5 (1) UWG).


Outlook

The introduction of the Nutri-Score logo in Germany aims to ensure comparability of nutritional values of foodstuffs from one product group and thus make food-related choices easier for consumers. At the same time, this label offers food companies the opportunity to make their products more consumer-friendly, whereas in the case of a positive classification colour and letter, they can also advertise the product as having “good” nutritional values. This is of course problematic if it is indeed mandatory to use the logo for all products that a food business operator places on the market under the brand(s) he has registered and not all of these products are rated positively by the algorithm.
 
Finally, it should be noted that the voluntary nature of using the new label is criticised among some groups, as it makes the success or failure of this labelling scheme dependent to some extent on the engagement of the food industry. In addition, the introduction of the Nutri-Score in Germany does not yet bring any wide-scale benefits for the European internal market, which would be of great importance due to the constantly growing cross-border food trade. In order to make foodstuffs from one product group comparable on a Europe-wide basis, it cannot be ruled out that harmonised and possibly even mandatory “front-of-pack” nutrition labelling will be introduced at EU level (see also the European Commission's report of 20/5/2020 and the “From-Farm-to-Fork” strategy published on the same day). In addition, the Commission has already announced a proposal for an extended EU-wide uniform nutrition labelling for the quarter 4/2022. The German government supports this process and is using the Presidency of the Council, which Germany assumed on 1 July 2020, to advance the discussion on a uniform, Europe-wide extended nutritional labelling system (see printed matter 19/20990). However, it remains to be seen whether a European model, possibly even a binding one, will actually be implemented and which model this will be.

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