Misleading claims on packaging: an update

Almost a year after the Teekanne judgment a Dutch version followed: Heks’nkaas. The NVWA was of the opinion that the name Heks’nkaas suggests that the product is “a type of cheese” and is therefore misleading with regard to the composition of the product. The District Court of Rotterdam refers to Teekanne but concludes that the packaging is not misleading at all. The list of ingredients is clear. The product contains cream cheese, but is not actually a type of cheese itself. Also the rest of the labelling cannot be considered to be misleading.

And then it gets interesting. If the packaging had said “dip spread of cream cheese and fresh herbs” it would possibly have been misleading, according to the District judge. In that case, the consumer might think that the product consists of cheese (almost) entirely . This shows that an insignificant word can make a world of difference. But: don’t forget to check the rest of the packaging as Teekanne prescribes.

A similar ruling by the Board of Appeal of the Advertising Code Authority (“BoA”) was given on the claim “100% Xylitol” for chewing gum. That claim was printed several times on the packaging, but was not entirely accurate. The product actually contained 99.7% xylitol, but also a tiny bit of (0.1%) aspartame and acesulfame K. The ACC thought this was  misleading, even though the ingredient list is accurate and clear. The claims on the packaging may remove the incentive for consumers to check the ingredients list. This is particularly dangerous as some groups can be allergic to aspartame.

The BoA agrees with the ACC. The claim has a very absolute scope, which makes it unsuitable for further nuancing. Once again it appears that 100% allows for no exceptions.

Take home message? The exact wording of claims on packaging requires great precision. But also the rest of the packaging and the list of ingredients must be taken into account. 

Sarah Arayess, lawyer Health, Beauty & Food Law

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