Food Label Can Mislead Despite Accurate Ingredients List
Producers who previously thought an accurate ingredients list would allow them to make misleading marketing claims elsewhere on a food label must now think again as a result of Teekanne's effect on the fifteen year reign of Darbo. First published as "Misleading Labelling Offences" in the Criminal Law & Justice Weekly (2015) 179 JPN 604.
The Darbo principle
What might be called the "Darbo principle" has two elements. The first of these was derived from Commission of the European Communities v. Federal Republic of Germany, C-51/94, EU:C:1995:352. There the question was whether a requirement that béarnaise sauce and hollandaise sauce made with vegetable fats and certain pastry products containing the additive E 160 F should, in order to be marketed in Germany, carry a trade description with an additional statement indicating that the substance in question was included, even if that was already stated in the statutory list of ingredients. The European Court of Justice ("ECJ") made a declaration that, by imposing the aforesaid requirement, Germany had failed to fulfil its obligations under Article 30 of the EC Treaty which provided for the free movement of goods. In the course of its judgment the ECJ stated that the measure imposed by Germany was not necessary because: "… consumers whose purchasing decisions depend on the composition of the products in question will first read the list of ingredients, the display of which is required by Article 6 [Labelling, Presentation and Advertising of Foodstuffs Directive ('LPAFD') 79/112/EEC]"
In Verein gegen Unwesen in Handel und Gewerbe Köln eV v. Adolf Darbo AG, C-465/98, EU:C:2000:184 ("Darbo"), Darbo manufactured strawberry jam which it sold in both Austria and Germany under the name "d'arbo naturrein". "Naturrein" means "naturally pure" but the ingredients list on the jam disclosed that it contained a pectin gelling agent. A registered association "against mischief in trade and commerce in Cologne" brought an action against Darbo in which it asserted that the word "naturrein" was used in a way contrary to German food law. The question subsequently referred to the ECJ for a preliminary ruling was whether, in the circumstances, the use of the word "naturrein" was forbidden by Article 2(1) LPAFD 1979 which provided that the "labelling and methods used must not: (a) be such as could mislead the purchaser to a material degree, particularly: (i) as to the characteristics of the foodstuff and, in particular, as to its nature, identity, properties, composition, quantity, durability, origin or provenance, method of manufacture or production, ..."
The ECJ held that: "As regards … pectin, it need merely be pointed out that its presence in d'arbo jam is indicated on the label on the packaging in accordance with Article 3(1)(2) ... of the Directive. As the Court has already acknowledged (Commission v. Germany, [post] …) consumers whose purchasing decisions depend on the composition of the products in question will first read the list of ingredients, the display of which is required by Article 6 of the Directive." The ECJ then added: "In those circumstances, an average consumer who is reasonably well informed and reasonably observant and circumspect could not be misled by the term naturally pure used on the label simply because the jam contains pectin gelling agent whose presence is duly indicated on the list of its ingredients."
In so far as Darbo gave rise to a principle it is that the average consumer will read a legally required ingredients list affixed to a food product before making a decision whether to purchase that product and hence cannot be misled by a contradictory statement elsewhere on the label. The principle thus contains two assumptions. Firstly, the premise that the average consumer will read the ingredients list and, secondly, that such consumer will accept the accuracy of that information and not be swayed by other labelling indications to the contrary. Seemingly this is irrespective of the relative size and prominence of the conflicting representations.
In Commission v. Germany, post, the ECJ said: "Even though consumers may sometimes be misled, that risk remains minimal and cannot therefore justify the hindrance to the free movement of goods created by the requirements at issue." The source of the first assumption in the Darbo principle did not therefore go as far to say that no consumers could be misled if there was an accurate ingredients list. On the other hand Darbo spoke not of the consumer but of the average consumer. Crucially, however, Darbo went beyond the assumption that the average consumer would read the ingredients list and presumed further that the consumer could not therefore be misled by a false statement elsewhere on the label. This conclusion was drawn even though the facts of Commission v. Germany were quite different from those in Darbo. Whereas it might have been reasonable to assume that there was no need for the presence of an ingredient to be separately stated in a trade description when it was already accurately stated in the statutory ingredients list, it does not logically follow that an intrinsically false statement could not mislead because the true position was set out in the ingredients list.
Darbo principle flawed
The words "will first read", in the first Darbo assumption, presumably mean that consumers will read the list of ingredients before making a decision whether or not to buy the product rather than that the ingredients list is the first thing on the label that a consumer will read. Inevitably, the first thing a consumer will read is the prominent feature which initially draws their eye to the label and a consumer wishing to buy strawberry jam will look for that name on the front of the label before exploring any further. The more enticing the producer can make the prominent description of the food the greater the chance that it will be purchased. The producer will endeavor to give as much positive information about the product as possible in the eye catching part of the label without overcrowding it such that it ceases to be effective. If this conspicuous description of the food is made to sound comprehensive then the consumer may be persuaded that there is no need to search out and examine the small print in the ingredients list. Even if the ingredients list is looked at, a true statement in the small print may be less compelling than a contradictory impression already strongly given and which has wetted the consumer's appetite.
In 2004, the Food Standards Agency published "Consumer Attitudes to Food Standards" which set out research findings on the shopping habits of UK consumers. MORI found that in 2004 only 32% of shoppers always or usually referred to the ingredients list. It would seem harsh to conclude that the other 68% of shoppers could not have been "reasonably well informed and reasonably observant and circumspect" and hence not "average consumers" because they did not generally look at the ingredients list.
The Food Standards Agency published further research in January 2010. "Qualitative Research to Explore Peoples' Use of Food Labelling Information" used eye tracking technology to see the information people actually looked at when shopping, as opposed to what they said they looked at. It was again apparent that most consumers did not in fact read the ingredients list. The findings included: "On the whole shoppers had low engagement with food labels in the store environment, and paid attention to only a minimal amount of food labelling when shopping." "The regulatory information offered on food labelling is factual, precise and accurate. It is of service to the consumer. But, in practice, for most food purchasers, its information is likely to be overwhelmed by the welter of promotional material surrounding it on the label." "It immediately becomes apparent that in most aspects of food description, the producers are offering promotional text and image alongside the factual information required of them by regulators. This becomes more than a right of reply. It can lead to competing impressions and an uneven contest, since the producers of the food have control of the pack, the label, the positioning of information, and the emphasis conveyed by colour, graphics, font type and size." "Marketing claims often supply quick reassurances without providing the full picture. These non-governed claims can either inform the consumer or can lead to misconceptions because consumers perceive that they negate the need to read the back of the label." "Any particular consumer has his or her own agenda and is unlikely to be interested in the totality of labelling. The consumer's goal is to exercise their selective attention, securing key elements of information, while ignoring the broad mass of material." "Shoppers generally wanted quick and easy information to make shopping easier, and did not want to have to turn over food labels to find the information they required." "Because of the reassurance provided by the marketing claims, consumers consider mandatory information as unnecessary." "At present consumers are daunted by the back of the label". "Ingredient lists naming preservatives, sweeteners, colorants and other complex organic compounds are likely to exceed the comprehension of most consumers."
The assumption that the average consumer reads the ingredients list is clearly wrong, at least so far as UK consumers are concerned. If this premise is wrong then so too is the conclusion derived from it that a consumer cannot be misled when the ingredients list is accurate. It means that the first assumption of the Darbo principle, although couched as a truism, is not the self-evident truth it purports to be. Nonetheless, so far as European jurisprudence is concerned, it has managed to attain the status of an established point of law.
Darbo and the High Court
Ironically, the most decisive application of the Darbo principle, or a manifestation of it, was in a case brought under United Kingdom law and which resulted in no reference to Darbo in the judgment. That case was Lewin v. Purity Soft Drinks Ltd [2004] EWHC 3119 (Admin), where a drink, prominently labelled as being "Blackcurrant Juice" and displaying a picture of blackcurrants, was said, accurately, in the quite separate ingredients list to contain only 13% blackcurrant juice. The manufacturer, Purity, was prosecuted for applying a false trade description contrary to s.1(1)(a) of the Trade Descriptions Act 1968 ("TDA"). Purity argued before the magistrates, firstly, that the prosecution should have been brought under legislation such as the Food Labelling Regulations 1996 which, unlike the TDA, gave effect to European Directives and secondly, that pursuant to the Darbo principle, the presence of the accurate ingredients list meant the average consumer could not be misled. The magistrates accepted the prosecution's submissions that it was in order to prosecute under the TDA, but, quite likely influenced by Darbo, concluded that: "The trade description was not false. A reasonable consumer faced with this product would, from our experience, expect to read it as a whole including the ingredients list and would be familiar with the idea that the ingredients list is likely to appear on the label. The ingredients list would therefore be effectively brought to the notice of the person to whom the goods may be supplied. We do not therefore consider that 'the doctrine of disclaimer' prevented us from looking at the ingredients list which provided accurate information as to the contents of the products."
On its appeal to the Divisional Court the prosecution argued that, on the well-established authorities, if a trade description was false, the offence was made out under s.1(1)(a) TDA regardless of any accurate information on the label unless (i) that accurate information was so proximate to the trade description that it was a part of it and had the effect of qualifying it, as in R v. Bull [1997] RTR 123, or (ii) the accurate information was as bold precise and compelling as the trade description itself such as to neutralise and disclaim it, as in Norman v. Bennett [1974] 1 WLR 1229. Field J, however, held that the magistrates "were entitled to look at the ingredients list, and on that basis conclude that the trade description was not false." In view of that decision, the Divisional Court decided that it was not necessary to consider the other question before it which was whether the magistrates had been right to have heard the case under the TDA rather than under European harmonised labelling legislation. Nonetheless, as that issue had been before the Divisional Court it was aware of the judgment in Darbo. Rightly or not, the Divisional Court's radical departure from the precedents on the doctrine of disclaimer meant that the Darbo principle had infiltrated even purely UK law.
The substantive provisions of the TDA were subsequently repealed and replaced by the new regulatory regime in the Consumer Protection from Unfair Trading Regulations 2008 ("CPUTR") which were made to give effect to another European Directive; the Unfair Commercial Practices Directive 2005/29/EC. As a result, the primary regulatory law relating to false and misleading trade representations now shares with the European Union such concepts as the "average consumer" who is taken to be "reasonably well informed, reasonably observant and circumspect" and Darbo's reach potentially extends beyond food labelling to any labelling which contains compulsory information.
In Office of Fair Trading v. Purely Creative Ltd [2011] EWHC 106 (Civil), the defendants used such things as scratch cards, in newspapers and magazines to invite consumers to claim prizes. The Office of Fair Trading ("OFT") claimed that this, on the facts, was an unfair commercial practice prohibited by reg.3 and sch.1 CPUTR as it created the false impression that the consumer had won a prize when taking action to claim the prize was subject to the consumer "paying money or incurring a cost". In the course of his judgment, Briggs J disagreed with the defendants' submission that, in reliance on Darbo, the requirement that the average consumer be assumed to be reasonably observant and circumspect meant that he should assume that the average consumer would read the whole of the text of any relevant promotion. He said: "In my judgment the Darbo case is no more than an example of the application of the average consumer test to particular facts, and was influenced by the fact that another directive … specifically required the contents of foodstuffs of that type to be identified on the label. I consider that the question whether the average consumer would read the entirety of the (frequently very small) print of a particular promotion raises fact-intensive issues as to the application of regulations 5 and 6, rather than being capable of resolution by an invariable and irrebuttable presumption of the type contended for by the defendants." Briggs J did not, therefore, allow the scope of the Darbo principle to be expanded, but neither did he challenge its application to cases where the accurate information, which it is presumed would be read, was given in compliance with a statutory requirement. Appropriately, it fell to the Court of Justice of the European Union ("CJEU"), in yet another case involving Germany, to state in far less presumptive terms than Darbo, the weight to be given to a statutory ingredients list.
Teekanne
In Bundesverband der Verbraucherzentralen und Verbraucherverbände v. Teekanne GmbH & Co. KG, C-195/14, EU:C:2015:361 ("Teekanne"), Teekanne marketed a fruit tea in Germany under the name (translated into English) "Felix raspberry and vanilla adventure". The packaging included depictions of raspberries and vanilla flowers and the descriptions "fruit tea with natural flavourings - raspberry-vanilla taste" and a seal with the indication "only natural ingredients". The product did not in fact contain any vanilla or raspberry constituents or flavourings. The list of ingredients on the side of the packaging referred to "natural flavouring with a taste of vanilla" and "natural flavouring with a taste of raspberry".
The German Federal Union of Consumer Organisations and Associations, "the BVV", brought a successful action against Teekanne alleging that the tea's packaging misled consumers who would expect the tea to contain vanilla and raspberry or at least natural vanilla flavouring and natural raspberry flavouring. Teekanne, however, won its appeal in the Higher Regional Court which held that there had been no misleading of the consumer within the meaning of the German legislation the provisions of which, in accordance with the LPAFD 2000/13/EC were to be interpreted by reference to the expectations of the average consumer. It held that it was clear from the list of ingredients that the natural flavourings used have the taste of raspberry or vanilla. It was therefore free from doubt that the flavourings used were not obtained from vanilla and raspberries but only tasted like them. In accordance with the case-law of the ECJ it was held that the correct and complete information provided by the list of ingredients constituted sufficient grounds on which to rule out the existence of any misleading of consumers.
The BVV appealed on a point of law to the German Federal Court of Justice which considered that the labelling suggested that the taste of the tea was in part determined by flavours obtained from raspberries and vanilla flowers and that it was presented in a way capable, even in the case of a reasonably well-informed and reasonably observant and circumspect consumer, of creating a false impression as to its composition. It considered that the presentation of the fruit tea was also such as to dissuade the consumer from taking note of the list of ingredients which was in much smaller print. The Federal Court stayed the proceedings and referred the following question to the CJEU for a preliminary ruling: "Is it 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 provided for under Article 3(1)(2) of Directive 2000/13/EC?"
The CJEU determined that: "In order to assess the capacity of labelling to mislead, the national court must in essence take account of the presumed expectations, in light of that labelling, which an average consumer who is reasonably well informed, and reasonably observant and circumspect has, as to the origin, provenance, and quality associated with the foodstuff, the critical point being that the consumer must not be misled and must not be induced to believe, incorrectly, that the product has an origin, provenance or quality which are other than genuine … In that regard, it is apparent from the case-law that … consumers whose purchasing decisions depend on the composition of the products in question will first read the list of ingredients, the display of which is required by Article 3(1)(2) of Directive 2000/13 (see, to that effect, judgments in Commission v. Germany, … and Darbo …)." At this point in the CJEU's judgment it might have been expected that it would have gone on to apply the second assumption of the Darbo principle and conclude that the average consumer could not be misled by the representations on the label when the true position was duly indicated in the list of ingredients. That might have been particularly so given that in Darbo the indication "naturally pure" was made expressly whereas in the instant case there was only an inference that the stated vanilla and raspberry taste was obtained from vanilla and raspberries. The CJEU, however, drew quite a different conclusion from the Court in Darbo. It continued: "However, the fact that the list of ingredients is displayed on the packaging of the goods at issue … does not in itself exclude the possibility that the labelling of those goods and methods used for it may be such as to mislead the purchaser … The labelling, as defined in Article 1(3)(a) … is composed of any words, particulars, trade marks, brand name, pictorial matter or symbol relating to a foodstuff and placed on its packaging. Some of those items may in practice be misleading, erroneous, ambiguous, contradictory or incomprehensible. In that case, the list of ingredients, even though correct and comprehensive, may in some situations not be capable of correcting sufficiently the consumer's erroneous or misleading impression concerning the characteristics of a foodstuff that stems from the other items comprising its labelling. Therefore, where the labelling of a foodstuff and methods used for the labelling, taken as a whole, give the impression that a particular ingredient is present in that foodstuff, even though that ingredient is not in fact present, such labelling is such as could mislead the purchaser as to the characteristics of the foodstuff." The CJEU went on to say, somewhat reminiscent of the "bold precise and compelling" test in relation to disclaimers, that "the location, size, colour, font, language, syntax and punctuation of the various elements on the fruit tea's packaging" must be taken into account. The CJEU thus concluded that a misleading indication on a label was not necessarily saved by an accurate ingredients list.
Labelling law after Teekanne
Whereas Teekanne appears to have followed the assumption that the average consumer will read a statutorily required ingredients list, the jettisoning of the Darbo notion that such list will automatically correct any misleading representations given elsewhere on the label leaves European labelling law in much the same position as under the UK's home grown Food Safety Act 1990 ("FSA"). Section 15 FSA makes it an offence to sell food the labelling of which falsely describes a food or is likely to mislead as to the nature or substance or quality of the food. Significantly, s.15(4) provides: "… the fact that a label or advertisement in respect of which the offence is alleged to have been committed contained an accurate statement of the composition of the food shall not preclude the court from finding that the offence was committed." Thus, in harmony with Teekanne, accurate information in the ingredients list (or elsewhere on the label) does not preclude a finding that the label as a whole is false or misleading. As the question under the FSA is whether the label, rather than any particular representation on it, is misleading, it means that every part of the label has to be considered regardless of whether a consumer is likely to read it. Any assumption, right or wrong, that the consumer will always read the ingredients list therefore makes no difference. The European jurisprudence is now on a par with the FSA in relation to the critical question of, not what is actually read or deemed to be read, but of the weight that the average or reasonable consumer will give to the different representations on the label. With regard to the overall question, it becomes almost irrelevant whether the small print in the ingredients list will be read if in fact the average consumer has little or no regard for it when faced with other information which is made more compelling by its far greater prominence.
The bold assertions, written or pictorial, shouted out from the front of the label, but previously muffled by the competing whispering of the remote ingredients list, can now be heard and, if they are misleading, silenced.