Op-Ed: “The list of ingredients of a food containing a vitamin does not necessarily have to indicate the specific vitamin formulation used (Case C-533/20, Upfield Hungary), by Maria Kietz
The correct labelling of foods in line with EU law has always been a topic in itself, and thus often the subject of legal disputes. Usually, the objective is to provide maximum transparency for the consumer. The case of the Court of Justice that is the subject of this analysis is remarkable as it has ruled that the most specific designation of a food ingredient is not always required. Sometimes, less is more.
The underlying case
The judgment of the Court in Upfield Hungary (C-533/20) concerns the labelling of vitamins, and is therefore of considerable and practical relevance for operators in the food industry. In a nutshell, the Court stated that the name of the vitamin itself is sufficient for labelling the food, there being no need for the specific vitamin formulation to be included.
This preliminary ruling has its origin in a legal dispute between a company which markets a vegetable spread in Hungary and the Hungarian authorities. The labelling of the product referred in particular to ‘vitamins (A, D)’. The national authorities considered, however, that the name of the vitamins contained should be indicated, as well as the specific vitamin formulation used. More specifically, with regard to ingredients such as vitamins A and D, that name corresponds to the vitamin formulation added to a given food, the use of which must be permitted under Annex II to Regulation 1925/2006 on the addition of vitamins and minerals. They therefore required the company to amend the labelling of the product in question.
The Hungarian Supreme Court, hearing the appeal in this case, requested a preliminary ruling from the Court of Justice under Article 267 TFEU, asking whether the list of ingredients of this vegetable spread product must also include the name of the specific vitamin formulation used, in addition to the name of the vitamins concerned.
The Court of Justice held that an added vitamin must be indicated in the list of ingredients pursuant to Article 9(1)(b) and Article 18 of Regulation 1169/2011 on the provision of food information to consumers (Food Information Regulation 1169/2011). With regard to the name under which such a vitamin must be included in the list of ingredients that must appear on the food concerned, the Court noted that, according to Article 18(2) of the Food Information Regulation, ingredients present in a food must be designated by their specific name, where applicable in accordance with the rules laid down in Article 17 of the same Regulation. According to Article 17(1), the name of the ingredients is to be understood as the legal name of the ingredient concerned, or, where there is no legal name, the customary name of that ingredient, or, if there is no customary name or the customary name is not used, a descriptive name. However, neither Article 18(2) nor Article 17(1) of the Regulation make it possible, in themselves and in the absence of additional textual information, to determine the name under which a vitamin which has been added to a food must be designated.
Against this background, and taking into account the context and the objectives pursued by those rules, the Court of Justice found that vitamins shall be – in accordance with Article 9(1)(l), Article 30 and Annex XIII of the Food Information Regulation – designated with names such as ‘vitamin A‘, ‘vitamin D‘ or ‘vitamin E‘ for the purpose of their declaration in the nutrition declaration, which must be included in the labelling in addition to the list of ingredients. In order to ensure consistent interpretation and application of the various provisions of that Regulation, the Court took the view that it is under those same names that such vitamins should also be designated for the purpose of their indication in the list of ingredients.
Consequently, the Court of Justice concluded that the list of the ingredients of a food does not have to include, in addition to the name of the vitamin, the name of the vitamin formulation used.
Assessment of the judgment
The findings of the Court ought to be agreed with for the following reasons.
This was the direction pointed at from some Member States. For example, the German working group of food chemistry experts (ALS) and the working group of experts in the field of food hygiene and food of animal origin (ALTS) had already stated in their opinion that the designations listed in Annex II to Regulation 1925/2006 on the addition of vitamins and minerals should not be regarded as legally prescribed, but as possible designations. This opinion considered that Annex II does not regulate the labelling, but designates vitamin formulations and mineral substances and thus special forms. Labelling questions are reserved for the provisions of the Food Information Regulation. Thereafter and according to Article (2)(2)(o) of the Food Information Regulation, the ‘customary name’ means a ‘name which is accepted as the name of the food by consumers in the Member State in which that food is sold, without that name needing further explanation’. It is to be agreed that the designation ‘vitamin’ fulfils this condition. Moreover, the Food Information Regulation does not at any point mention anything other than the term ‘vitamins’.
Interestingly, the Court of Justice further justified its decision with the aim of the Food Information Regulation , which is to ensure a high level of consumer protection in relation to food information. The information provided to consumers about foods shall be ‘accurate, clear and easy to understand’ (para. 46). The rationale behind this ruling is comprehensible since the term ‘vitamin’ is the name the average consumer might understand best. Nevertheless, there are also consumers who are more knowledgeable and therefore receive more precise information if the specific vitamin formulation used is indicated, providing better information and thus also contributing to legal certainty. It was therefore not uncommon in practice to recommend to the food consumer that the specific formulation should (additionally) be indicated on the food label.
Following the judgment of the Court of Justice, the relevant question is whether, in the future, the specific designation of the formulation may be indicated (in addition) to the designation of the vitamin. This does not emerge from the ruling, as the Court of Justice did not have to deal with this concern, due to the request being rather specific. However, it is not unreasonable to expect that operators in the food industry (voluntarily) want to add the specific name of the formulation in the future and also after this ruling; or that they already do so and do not want to change their labels.
In any case, the judgment does not contain any specific prohibition, so there is certainly room for argument in both directions. However, since the Court of Justice seems to be of the opinion that the specific designation is less informative for the consumer and indeed more confusing, the naming of the specific formulation may carry a risk of being considered misleading. Nevertheless, it may seem difficult to understand why the provision of more precise additional information would ultimately be disadvantageous for those in the food industry. The specification of the exact formulation should thus still be possible on a voluntary basis.
It remains to be seen how this will be acted upon in the market in the future. Watch out for vitamins.
Maria Kietz is an Associate at a reputable food law firm in Munich, Germany. She is also Managing Editor of the law journal EFFL (European Food and Feed Law Review). She is author of the articles ’Nutrition and health related claims in the US and EU – a legal comparison of the regulations’, EFFL 1/2022; ’Regulation (EU) 2021/382 Amending Food Hygiene – Liability Implications for Food Businesses’, ZLR 4/202; EFFL 5/2021 and ’The Origin declaration of food and its primary ingredients – a quick guide on Regulation (EU) No 1169/2011 and Regulation (EU) 2018/775’, WRP 2020, 551; EFFL 4/2020.