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Misleading? To whom?

Kristine Lilholt Nilsson


Food business operators marketing their products in multiple member states know that many issues can arise when a product marketed in one member state is sold in another. This goes for products marketed in third countries as well. Of these many issues, this article will focus on matters relating to the labelling of products. The rules which cover the labelling of foods are fully harmonised within the EU in Directive 2000/13/EC, which have been succeeded by Regulation 1169/2011 (Food Information Package). However, the interpretation and application of these rules are left to the authorities in the individual member states, which leads to significant differences in the ways that the legislation is applied. The legislation provides that the labelling of a product must not mislead the consumer. At the same time the interpretation of whether or not, if and how a consumer is misled differs between member states depending on the legal traditions of that member state. If a product is manufactured and packed in one member state but intended for the market of another, which member state’s standard or interpretation of ‘misleading’ applies when assessing whether the labelling is misleading? And by which authority? These questions are currently under scrutiny in several large criminal cases in Denmark, covering multiple aspects of labelling. While waiting for the cases to be tried before the courts, this article will discuss how the Community’s rules on labelling and authority control should be interpreted in relation to goods that are circulated within the Community.

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