Food Law: Using awareness to advertise with assumptions and … – Lexology
What do you eat? Where do you buy it? Where is it from? How much do you throw away? Think for a moment on these questions and then take a second to feel the following words: sustainable, ecological, regional, national, traditional, natural. Did you have any reaction to them, any associations – a picture, a memory, a taste?
With global warming, rising energy and production costs, supply shortages of raw materials and pollution being constant topics in politics and society, most of us have developed a keen awareness of these topics and the listed claims. Words like “sustainable”, “environmentally friendly” and “regional” may trigger emotions that influence our day-to-day life, our consumption behaviour, and thus the food we choose. Naturally, these words are being heavily exploited in advertising.
What specific messages do they convey to the consumer? Does every consumer picture the same benefit? What are these claims based on?
For example, “sustainable food” is arguably a product of sustainable agriculture, taking into account soil regeneration, reduced greenhouse emissions, conserved water resources, etc. An Austrian court, however, decided years ago that consumers did not go so far as to consider soil regeneration, reduction of emissions and so on. Consumers simply believed that “sustainable” meant “organic”. Although this decision can hardly be upheld today (or at least it should not), this understanding is not uncommon among European countries.
A vertical garden uses at least 90 % less space and water to produce lettuce, for example, than does conventional gardening. While this is by all means “sustainable”, does it mean that conventional agriculture can no longer be “sustainable” because the bar has been set so high? What about other products, like drinking bottles? Which is more sustainable and eco-friendlier: a glass bottle or a PET-bottle? Glass bottles are heavier, meaning the longer the delivery route, the less eco-friendly they are. Some would argue that reusable PET-bottles are altogether eco-friendlier than glass bottles, even though plastic products are a large contributor to pollution.
These are just a few examples out of many, all of them emotionally charged, all something consumers look for without really knowing what they mean, most not legally regulated.
Businesses and legal advisors face great difficulties when evaluating such advertising. For most of these claims there are no specific (legally binding) definitions and/or guidelines in European Food and Packaging Law, which means that general food law and unfair competition rules apply, national practices must be observed, and the compliance of claims is evaluated on a case-by-case basis. When it comes to national provisions and practices, there are again manifold aspects to be considered.
Below is an overview of the legal status quo of some claims for foodstuff in nine European countries. Get an overview if and what exists (at least partially) in your country: legal (binding) definition, jurisprudence, or soft law (e.g. guidelines, official position by competent authorities) for claims.
Please click here to view the infographic