CAN DON QUIXOTE SERVE AS THE KEEPER OF SPANISH MANCHEGO CHEESE? by Nikolaas Tilkin-Franssens

In its judgment of 2 May 2019, the European Court of Justice has ruled that images or illustrations which trigger association with a certain region or area can be part of the protection of a Protected Designation of Origin (PDO) or a Protected Geographical Indication (PGI).

The ruling related to the PDO of Spanish Manchego cheese but has essentially provided for an extensive protection of PDOs in general. European rules on quality schemes for agricultural products and foodstuffs protect registered names (PDOs and PGIs) against any misuse, imitation or evocation. For the given case, the European Court was asked to interpret the extent of ‘evocation’ in terms of figurative signs.

The request for a preliminary ruling was triggered by the local foundation responsible to oversee the Manchego cheese PDO. The foundation initiated proceedings against a local distributor selling cheeses that were not covered by the protected designation of origin of Manchego cheeses. The cheeses only had names linked to the famous literary character Don Quixote de La Mancha and depicted typical features of the la Mancha region in Spain, including landscapes, windmills and sheep.

Although the cheeses did not have a name similar to Manchego, the foundation persisted and eventually appealed to Spanish Supreme Court. The Supreme Court decided to stay proceedings and ask the European Court of Justice whether the use of figurative signs could also trigger the evocation of the ’Manchego PDO.

The Court of Justice decided the protection of registered names does not only refer to words ”but also to any figurative sign capable of evoking in the mind of the consumer products whose designation is protected”. The national court will further need to determine whether the respective images “are capable of triggering directly in the consumer’s mind the products whose names are registered”. Furthermore, the Spanish court will also need to consider whether the link between the illustrations of local features and the PDO is sufficiently strong to create a conceptual proximity, taking account that the challenged producer is established in the same region. The court added that the consideration should be based on the concept of the average consumer who is reasonably well informed and reasonably observant and circumspect. This concept should cover European consumers, “including consumers of the Member State in which the product giving rise to evocation of the protected name is made or with which that name is geographically associated and in which the product is mainly consumed”.

EU Court of Justice, Case C‑614/17, Fundación Consejo Regulador de la Denominación de Origen Protegida Queso Manchego v Industrial Quesera Cuquerella SL, Juan Ramón Cuquerella Montagud - link

DUTCH RULING CALLS FOR CLARITY OVER VANILLA FLAVOUR by Nikolaas Tilkin-Franssens

The Dutch Advertising Code Commission (in Dutch; Reclame Code Commissie) found the indication “vanilla” on front of pack to be misleading considering the product at stake does not contain natural vanilla.

A local consumer organization, named Foodwatch, initiated a case against Friesland Campina on the allegedly misleading labelling of a vanilla flavoured dessert. It argued the simple indication of “flavouring” in the list of ingredients is not sufficient to lose the impression of consumers that the product would contain real vanilla. Neither would the side of pack statement “smooth vanilla flavour” lift such impression. In the appeal brought by Friesland Campina, the Commission confirmed the grievances brought by Foodwatch. Furthermore, the defence that “vanilla” would be part of the commonly used name for this type of product (In Dutch: vanillevla, or vanilla custard) was not upheld. This led the Dutch Advertising Code Commission to confirm the labelling was misleading in terms of the product’s composition.

Reclame Code Commissie: 2018/00701 (16 May 2019) - link

NUTRISCORE HITS HURDLE IN GERMAN COURT by Nikolaas Tilkin-Franssens

The health logo, more commonly known as Nutriscore, developped by the French authorities to provide a ranking to foods in terms of their relative nutritional quality has been restricted by the  district court of Hamburg in Germany. Food manufacturer Iglo, who included the logo on its packaging, had been challenged by a consumer protection association. It has received an injunction to remove the logo from its labelling.

The use of the Nutriscore scheme is voluntary but is increasingly supported by both industry and member state authorities. Originating in France, the scheme is being considered for implementation in Belgium, Spain, Portugal, Luxemburg and Netherlands. There were hopes to have the Nutriscore as a unified health logo around Europe, but this idea now receives its first backlash. Iglo indicated it would appeal the Court ruling as soon as possible.

Note: Court ruling currently not available.

See: IGLO – Press Release (16 April 2019) - link

Simultaneously, the German Federation for Food Law and Food Science (Bund für Lebensmittelrecht und Lebensmittelkunde or BLL) has proposed a different voluntary Nutritional Labelling Model. The front of pack indication depicts the energy value together with the amounts of fat, saturates, sugar and salt. An additional visualisation shows how much the food’s energy value and each nutrient contributes to their respective reference intakes. Different from the French Nutriscore model, it does not provide for a ranking of the food as a whole. It neither indicates whether the values are high, average or low as is the case with the UK traffic light labelling scheme. The reason provided is that foods neither nutrients should be ranked as all foods may fit in a balanced diet. People should not remove foods from their diets but rather eat a balanced and varied diet.

BLL -  Nährwerte auf der Schauseite: Spitzenverband der Lebensmittelwirtschaft entwickelt neues Kennzeichnungsmodell - link

EU FOODS TO BE FREE OF TRANS FATS by Nikolaas Tilkin-Franssens

The Commission has adopted the Regulation restricting the presence of trans fat in foods. The prohibition applies to foods intended to be sold to final consumers as well as food intended for supply to retail. The Regulation requires the content of trans fat, other than fat naturally occurring in fat of animal origin, to not exceed 2 grams per 100 grams of fat. Food which does not comply with this Regulation may continue to be placed on the market until 1 April 2021. In line with the European labelling information rules, food business operators need to take appropriate measures to inform other operators they supply to in case their foods and raw materials exceed 2 grams of trans fat per 100 grams of fat.

The Restriction follows from the EFSA scientific opinion of 4 December 2009 which recommended to keep the intake of trans fatty acids as low as possible because of the link with an increased  risk  of  coronary  heart  disease. In a succesive report, the European Commission concluded that from the public health measures available – inter alia the labelling of trans fat content, voluntary initiatives by the food industry, Member States initiatives, a EU legal limit was to be the most effective measure.

The restriction will be listed among the restricted substances in Regulation 1925/2006 of 20 December 2006 on the addition of vitamins and minerals and of certain other substances to foods.

Besides, the Commission decided to update the status of Yohimbe bark in the latter Regulation. Due to uncertainty regarding the safety of Yohimbe (Pausinystalia yohimbe (K. Schum) Pierre ex Beille) and its preparations in foods, the substance was placed under EU scrutiny in 2015. Since that time, no scientific evidence has been submitted that would demonstrate the safety of Yohimbe and its preparations making the substance will be prohibited for use in foods.

COMMISSION REGULATION (EU) 2019/650 of 24 April 2019 amending Annex III to Regulation (EC) No 1925/2006 of the European Parliament and of the Council as regards Yohimbe (Pausinystalia yohimbe (K. Schum) Pierre ex Beille) - link

Commission Regulation (EU) 2019/649 of 24 April 2019 amending Annex III to Regulation (EC) No 1925/2006 of the European Parliament and of the Council as regards trans fat, other than trans fat naturally occurring in fat of animal origin - link

FRANCE PURSUES TITANIUM DIOXYDE BAN by Nikolaas Tilkin-Franssens

As reported in our blog item of 2 November 2018, France has adopted a law in order to restrict to use of titanium dioxide (E171) in foods.

Yet, last February, the local French safety assessor ANSES had been requested to reconsider the safety objections on the use of the additive taking account of newly published scientific evidence. In its new Opinion ANSES concludes there are no grounds to revisit the earlier conclusions. It stands by its earlier recommendation to limit the exposure to the substance. ANSES reiterates that the exposure to nanomaterials by workers, consumers and the environment should be limited, in particular by promoting products - free from nanomaterials - that are safe and equivalent in terms of functionality and efficiency.

ANSES (12 April 2019) - AVIS de l’Agence nationale de sécurité sanitaire de l’alimentation, de l’environnement et du travail relatif aux risques liés à l’ingestion de l’additif alimentaire E171 - link

Following the above Opinion, the French authorities have formalised the restriction of the additive through the adoption of a Decree adopted on 25 April. The ban on the use of titanium dioxide will apply from 1 january 2020 and will last for one year.

Arrêté du 17 avril 2019 portant suspension de la mise sur le marché des denrées contenant l'additif E 171 (dioxyde de titane - TiO2) - link

NEW REGULATION REINFORCES THE MUTUAL RECOGNITION PRINCIPLE by Nikolaas Tilkin-Franssens

The new regulation on the mutual recognition of goods lawfully marketed in another Member State (Regulation 2019/515) has been published introducing several measures to strengthen the application of the fundamental EU principle. The concept of mutual recognition derives from European Union case law in the application of the free movement of goods embedded in the European Treaties. It essentially requires EU member states to guarantee the introduction of goods which have been lawfully marketed in another member state. In case a member state restricts the market access it needs to clearly justify why market access has been restricted.

The new Regulation, replacing former Regulation 764/2008, elaborates on the technical application of the above principle in order to minimise unlawful EU barriers to trade. It establishes a set of rules and procedures to guarantee the appropriate application of the mutual recognition principle. Different from the preceding Regulation, it introduces the Mutual Recognition Declaration. This concerns a self-voluntary declaration which can be used to demonstrate the lawful marketing of goods in a member state to the authorities of another member state. The structure and content of the mutual recognition declaration is further established in the Annex of Regulation 2019/515. Further, the Regulation determines the procedure by which a member state can assess whether goods have been legally marketed in another member state. Important to note is that the economic operator retains his right to market the goods during the assessment. Only where the goods pose a serious risk to safety or health of persons or to the environment or similar goods are generally prohibited on grounds of public morality or public security the member state of destination may temporary suspend the entry of the concerned goods. In such case the competent authority needs to notify the economic operator as well as the European Commission and the other member states. In its assessment the competent authority shall take account of the mutual recognition declaration, if available. Following the assessment, the competent authority shall notify and duly justify its administrative decision. It shall provide for the remedies and procedures available under its national law and a reference to the SOLVIT procedure. SOLVIT is an alternative, non-judicial mechanism to settle disputes between individuals or business and member states regarding the application of EU law. In case an administrative matter limiting the free movement rights of an economic operator is brought before a SOLVIT centre, the European Commission will provide an opinion on whether the administrative decision is compatible with the principle of mutual recognition. Lastly, the new mutual recognition Regulation aims to raise awareness of the free movement principles and promote the exchange of information through Product Contact Points in the different member states. Regulation 2019/515 will enter into force on 18 April 2019 and apply from 19 April 2020.

Regulation (EU) 2019/515 of the European Parliament and of the Council of 19 March 2019 on the mutual recognition of goods lawfully marketed in another Member State and repealing Regulation (EC) No 764/2008 - link

FRENCH FOOD SAFETY AUTHORITY CAUTIONS THE USE OF ARTHRITIS SUPPLEMENTS by Nikolaas Tilkin-Franssens

A recent report advises against the consumption of food supplements containing glutamine and/or chondroitin sulfate for certain population groups. The undesired adverse effects can include digestive problems, abdominal pain, rash, itching, hepatitis or haemorrhagic lesions of the skin. At present, food supplements and medicinal products containing glucosamine and chondroitin sulfate are widely available.

Although the French Food Safety Authority, named ANSES, also recognises in its report that both glucosamine and chondroitin sulfate contain compounds naturally found in the connecting tissues and cartilage of our the human body which promote the structure and elasticity of cartilage tendons and skin. For certain risk groups the consumption of both substances should be avoided. The identified risk groups are:

(i) people with diabetes or pre-diabetic, asthmatic or treated with anti-vitamin K,

(ii) (for food supplements based on glucosamine) people with a food allergy to crustaceans or insects.

(iii) people whose diet is controlled for sodium, potassium or calcium, as these supplements can be an important source.

(iv) children and pregnant or breastfeeding women.

ANSES advises food producers to take account of the risk groups and appropriately inform consumers. In addition, it calls for the establishment of harmonised European Union maximum use levels for both glucosamine and chondroitin sulfate.

ANSES (29/03/2019) - Les compléments alimentaires à visée articulaire déconseillés à certaines populations - link

ASA SCRUTINIZES USE OF FOLATE VERSUS FOLIC ACID AND THEIR RELATED CLAIMS by Nikolaas Tilkin-Franssens

The UK Advertisement Standards Authority found a recent Kellog’s advertisement to exaggerate the meaning of an authorized claim relating folate to maternal tissue growth during pregnancy.

The concerned TV ad showed a pregnant women together with the statement “made with Folic Acid feeding development”. Below that statement it added that “a serving of Special K cereals contains folic acid contributing to maternal tissue growth during pregnancy”. According to Kellog’s, the used statements were based on the claim “folate contributes to maternal tissue growth during pregnancy” which has been authorized under the European Nutrition and Health Claims Regulation 1924/2006. In practice, the actual wording of claims made on foods may deviate from the approved wording provided that the alternative wording is considered to have the same meaning for consumers and the conditions of use are respected.

As a result, the Authority accepted that the names folate - for which the claim is authorized - and its synthetic form folic acid can be used interchangeably. Kellogg’s had argued in terms of consumer understanding the term folic acid is preferred as it would be more commonly known, be generally perceived as a beneficial nutrient for pregnant women and be more easily absorbed by the human body. Further, the product did comply with the conditions of use because the product is a source of folic acid.

However, the Authority argued that addition of “made with Folic Acid feeding development” would imply a beneficial effect on foetal development different from the authorized claim. While there is an authorized claim for folic acid on the reduction of risk of neural tube defects in the developing foetus, a portion of Special K does not contribute the required 400 micrograms in order to make use of that claim. This made the Authority decide the ad exceeded the flexibility given on the use of authorized claims.

ASA Ruling on Kellogg Marketing and Sales Company (UK) Ltd (6 March 2019) - link

LIST OF TRADITONALLY USED DENOMINATIONS PUBLISHED by Nikolaas Tilkin-Franssens

The European Commission has published the list of generic descriptors which are excluded from the scope of the Nutrition and Health Claims Regulation 1924/2006. Although the listed denominations could imply a health effect they are exempted from the Regulation’s restrictions due to their traditionally use in certain member states. The given exemptions are language and country specific.

Commission Regulation (EU) 2019/343 of 28 February 2019 providing derogations from Article 1(3) of Regulation (EC) No 1924/2006 of the European Parliament and of the Council on nutrition and health claims made on food for the use of certain generic descriptors - link

RITUAL SLAUGHTER PRECLUDES USE OF EU ORGANIC LOGO by Nikolaas Tilkin-Franssens

The European Court of Justice ruled that halal meat cannot bear the EU organic farming logo. The Court has taken the stance ritual slaughter – as opposed to slaughter with pre-stunning – ‘does not allow the animal’s suffering to be kept to a minimum’.

The high standard of animal welfare in all locations and at all stages of production is a fundamental standard of organic farming in line with EU Regulation 834/2007 of 28 June 2007 on organic production and labelling of organic products. The latter Regulation demands that ‘any suffering, including mutilation, shall be kept to a minimum during the entire life of the animal, including at the time of slaughter’. The Court argued that the application of pre-stunning is shown to be the least compromising technique in terms of pain, distress and suffering of slaughtered animals.

Judgment of the European Union Court of Justice (26 February 2019) - Case C-497/17: Oeuvre d’assistance aux bêtes d’abattoirs (OABA) v Ministre de l'Agriculture et de l'Alimentation and Others - link

SCIENTIFIC DATA USED IN EFSA’S RISK ASSESSMENT TO BE MADE PUBLIC by Nikolaas Tilkin-Franssens

Following the fitness check of the General Food Law Regulation (completed on 15 January 2018, see executive summary) and a European Citizens Initiative to ban the use of glyphosate, the European Commission has presented a proposal to strengthen the core of EU Food Law to the European Parliament and the Council. Next to the amendment of the framework Regulation, General Food Law Regulation 178/2002, the proposal covers the revision of the legislation on GMOs, feed additives, smoke flavourings, food contact materials, food additives, food enzymes and flavourings, plant protection products and novel foods.

The purpose of the revision relates to improving the transparency of EU risk assessment with regard to food and feed. Particularly the functioning of the European Food and Feed Safety Authority is scrutinized. Therefore, the agreement reached on 11 February holds that all scientific information as part of an application with EFSA will be made public save for strictly confidential information. In addition, a set of additional, procedural safeguards will be introduced to guarantee independent and transparent risk assessment.

European Commission - Presse Release: Agreement on the Commission's proposal on transparency and sustainability of the EU risk assessment model in the food chain - Questions and Answers - link

IMMEDIATE INCREASE IN ENERGY LEVEL EXCEEDS AUTHORIZED VITAMIN C CLAIM by Nikolaas Tilkin-Franssens

In the view of the UK advertising body ASA, claiming a health benefit is immediate may exceed the flexibility to an approved health claim. In casu, ASA argued the words ‘feel the burst’, ‘fast’ and ‘direct’ accompanying the product name Dextro Energy would imply an instantaneous increase in energy levels. Included in the advertisement was the authorized claim that vitamin C contributes to the reduction of tiredness and fatigue. But according to the ASA opinion this does not extend to a sudden energy boost. Dextro also argued that the words “feel the burst” specifically related to a burst of flavor. This was not upheld by ASA.

UK Advertising Standards Authority - Ruling on Dextro Energy GmbH & Co KG (13 February 2019) - link