INSIGHTS

It feels like an eternity ago. A couple of months ago we were actually allowed to sit on the terrace and in the sun, while enjoying a beer, and forgetting about corona for a moment. Due to the compulsory closure, the hospitality industry had already had a hard time at that time. That is why the Dutch Brewers gave the catering industry a helping hand by launching the "Golden Moments are experienced with beer" campaign.

For the time being, so-called botanical products may make a health claim, for example, for a vitamin supplement. This is despite the fact that EFSA has still not assessed the associated scientific files. This is because the outcome of political wrangling over how to assess the evidence for the claim has been awaited for years. But the reins have been tightened!

De Vegetarische Slager (“The Vegetarian Butcher”) scores one hit after the other: from vegetarian chicken pieces to vegan petit filet a l'Americain, the Dutch are discovering these meat substitutes more and more. Recently, the Advertising Code Committee received a complaint about a radio commercial in which BBQ King Jord Althuizen cooks with the vegan Bofkipburger of the popular meat substitute brand.

In the summer of 2019, New York Pizza launched pizzas with a cauliflower-bottom. This did not go unnoticed. The YouTube clip contained a big wink to telephone sex lines and was therefore able to go through the brackets - it was obviously a parody. For the posters at bus stops nationwide - containing a naked woman with two cauliflowers in front of her breasts - things didn't end so well.

Take a good look at those packages with flags and cheerful country colours. They are going to disappear more and more. Why are they disappearing? Strict labelling rules require that a disclaimer be used if the primary ingredient comes from another country than suggested by the texts or symbols on the packaging.

The Flower Farm must definitively change its packaging. The deforestation claim on its 'butter without palm oil' is misleading. The Board of Appeal confirmed on appeal that the text on the margarine packaging EAT PLANTS, NOT PALM PLEASE is inaccurate.

On 7 November, the NVWA (enforcer), VWS (legislator), the food industry FNLI, the Consumers' Association and lawyers held talks at the Annual Conference on Food Safety and Integrity. The entire food industry was watching. As a lawyer, I spoke to Inge Stoelhorst of the Ministry of Health, Welfare and Sport in a panel. Later Yvonne Huigen (NVWA) and Marloes Kneppers (FNLI) joined the discussion.

The month of December is almost upon us again. To show the best you at Christmas dinner or at an old and new party, try to make healthier choices. For example, you choose to eat less meat and replace rusk with the wholemeal variety. What appears? The whole-wheat rusk in your basket does not consist entirely of whole-wheat flour, but also contains other wheat flour. This may make your rusk less healthy than you thought.

The Flower Farm misleads consumers by saying on its margarine packaging that palm oil destroys tropical rainforest. Furthermore, The Flower Farm is not allowed to say in its TVC that Orangutans are eradicated by palm oil. The Flower Farm’s call that consumers can save up to 30 m2 of rainforest per family by buying and eating The Flower Farm margarine is also misleading and forms a prohibited environmental claim.

Who doesn't know them, Capri Sun’s iconic standing bags. Since 1969, Capri Sun has been packaging its fruit juices in flexible, aluminium-coloured standing bags. The stand-up bag has many advantages. The material ensures that the fruit juice remains cooled for a long time, the shape makes it easy to carry and prevents spillage. The only disadvantage is that the high functionality of the stand-up bag is precisely a dealbreaker for trademark protection.

Medical device advertisements often contain claims about the functioning of the product. The television commercial for A. Vogel Extra Intensive Eye Drops: "Softens your dry eyes. A. Vogel eye drops provides long-lasting wetting and relief." Is it allowed to make that claim?

Where should the packaging say that a product tastes like the depicted fruit? For a moment it seemed that taste could no longer be mentioned at all! The Advertising Code Committee had - unintentionally - clumsily written this down in the Optimel Vanilla custard case, filed by Foodwatch.

Every parent knows the situation: your child wants to buy certain cookies, with the Minions pictured on the packaging, or Dora The Explorer. The Stop Unhealthy Food Marketing to Kids Coalition could not stand it any longer and it is about to change. For a while, there has been regulations on advertising for foodstuffs: they may not be targeted at children of twelve years and younger.

Do you remember them? The blue and green tick marks on food packaging. These symbols have been in use since 2006 to help consumers choose healthier products. The party was over after 10 years: the tick marks were about to disappear gradually from the shelves. Products can no longer be produced with the tick marks after 18 October of this year.

In the Netherlands, it is prohibited to advertise medicines to the general public. The Dutch Ministry of Health, Welfare and Sport enforces strictly and imposes fines up to EUR 450.000 for each violation. A recent judgement proves that this fine cannot only be imposed on the manufacturer, but also on the PR agency that acts in the interests of the manufacturer. Agencies beware!

In a television commercial, a cool teenager confides that he is extremely tense about his final exams. Luckily, he has Original Clear Mind, ‘which helps me concentrate better and improves my academic performance’. The applicant considered touting this product to minors to be a grave mistake. The applicant was confusing ordinary CBD oil with the psychoactive ingredient in cannabis: THC.

A video produced by Servero, an apple sauce producer, was posted on YouTube. A presenter asks passersby to take part in a taste test. Sample A is Servero’s 100% apple sauce without added sugar. Sample B is a ‘random’ leading brand with a purple lid that contains ‘no less than seven cubes of sugar’. Eight of the ten participants preferred the Servero 100% apple sauce. According to competitor HAK, it is abundantly clear that Sample B is its own HAK apple sauce.

The Witte Wieven (“Women in White”)…are mythical creatures. They are thought to be the spirits of wise female herbalists that remained on earth. They appear in epic stories, sometimes to help, sometimes to hinder. … the Witte Wieven are often referred to in connection with witches and ghosts. This is what the English version of Wikipedia has to say about ‘witte wieven’.

What ingredients do you think are in the product below on the left? No, don’t keep reading, I really want your opinion. Go on. I can wait. You can also share your thoughts with me by email. Done? The applicant felt he had been misled. He thought that the product only contained orange juice and so felt cheated when the rest of the packaging revealed that the product contained 33% water. Misleading!

Wine grower, writer, and television presenter Ilja Gort is the co-founder and owner of the Chateau de la Garde winery. One of the winery’s best-known and best-selling wines is ‘La Tulipe’, which graces the shelves of Albert Heijn supermarkets. Chateau de la Garde has multiple registrations for the word mark LA TULIPE. Last summer, De la Garde successfully defended its trademark against a Hema brand wine bearing a tulip on the label.

The Netherlands Food and Consumer Product Safety Authority (Nederlandse Voedsel- en Warenautoriteit, NVWA) has just recently published its annual plan, providing an interesting look behind the scenes. The NVWA lists as its core values: reliability, independence, transparency, and professionalism. Stemming from these is its clarification about where its priorities lie.

Advocate General Wathelet has advised against copyright protection of the taste of foodstuffs. The key consideration is in nr. 60.

Foodwatch is well known at the Advertising Code Commission (Reclame Code Commissie, “ACC”). The food watchdog submits complaints about food advertising with some regularity. This time, it was the turn of the packing on M&M's Peanut & Hazelnut.

Many countries have their own specialities. We're known here for our Dutch cheeses, like Gouda or Edam. Manufacturers can apply for European protection for their products. This protection falls into one of three sorts: the Protected Designation of Origin (PDO), the Protected Geographical Indication (PGI) and the Traditional Speciality Guaranteed (TSG).

On 29 March last year, I wrote that the European Commission requested the alcohol industry to propose a self-regulatory framework about the labelling of alcoholic beverages (>1.2% alcohol). This proposal should arrange for mandatory inclusion of the list of ingredients and nutrition declaration on the label. The background is that, until now, alcohol was exempt from the obligation to include this information on the label.

On 1 February 2018 a draft proposal was sent to the European Commission by The Netherlands, announcing a new maximum level and several mandatory warning for vitamin B6 in food supplements. Levels of vitamins and minerals in food supplements are not yet harmonized on a European level, which is why the rules on maximum levels differ per member state. A challenge to those active in more countries.

The (plant-based) dairy industry is still keeping minds occupied. The European Court of Justice held last summer that the protected terms ‘milk’, ‘yoghurt’ or ‘cream' could not be used as the name or designation of a non-dairy product. Since then, the name 'soya milk' has been a no-go. But how does this stack up if they say that a product is a variation on yoghurt, or an alternative to dairy?

We know that champagne growers are (rightly) proud of their sparkling wine. Nothing gets their hackles up more than when some "fizz" is produced from a region other than Champagne, or in a different way. After all, it’s with good reason that they got the name Champagne covered by a Protected Designation of Origin (PDO).

Quaker Oatmeal Granola with 94% whole grain cereals. Sounds good, right? When a consumer inspects the list of ingredients on the back of the packaging she finds the product only contains 63% of whole grain cereals.

The expectation of a product that advertisements cause vs reality. A hot topic for disappointed complaining consumers at the Dutch Advertising Code Committee (RCC).

"And the winner of the Foodwatch Gouden Windei is……" Jumbo Goudeerlijk (‘Gold honest’) cornbread. Each year, Foodwatch nominates products it considers to be misleading. The public choice of the most misleading product wins the Gouden Windei (Golden Wind Egg). This 'honour' was shared by Jumbo.

The European Commission will (finally) start with the preparations to establish legal definitions of vegetarian and vegan food. This was announced last week in the REFIT Summary

What’s in a name? Some years back, the dairy industry did a lot of lobbying in Brussels. Dairy names like milk, cheese and butter are protected designations. Milk may only be called milk if it is obtained from the udders of an animal: hence cows' milk, goats' milk and camels' milk. But what impact does this have on soya milk?

These days producers of prepacked foods seem to make daily life a lot easier for consumers seeking to buy their essentials in the supermarket. Whatever product you are looking for, the packaging often tells you exactly how much one portion is and how many calories that portion contains.

The sportsmen and women among us often carry Dextro Energy: the glucose tablets are known to make a contribution to the muscles. The EFSA has also scientifically acknowledged this; the EFSA has given the green light to five health claims for glucose submitted by Dextro GmbH.

On June 20th 2017, the VMT food law event took place in the flashy Miele Experience Center in Vianen. The event is much visited by all stakeholders from the food industry. During the plenary morning program, Ebba Hoogenraad provided tips and tricks on the use of influencers in food marketing.

A drink, from a legal standpoint, is only fruit juice if it consists of 100% fruit juice, with nothing added. Fruit drinks that consist only partly of juice are therefore not allowed to be called ‘juice’. Yet, in their online shops, supermarkets use the term ‘juice’ for the general category of fruit drinks. Is that allowed?

The product Heks’nkaas (literally ‘witches’ cheese’) has been receiving attention in IP circles for a while now. Levola, the producer of Heks’nkaas, has been embroiled in legal action for a number of years concerning the copyright protection of the flavour of the cream cheese spread. It has not been able to stop imitators on the grounds of flavour.

It’s a well-known fact that for a vast range of products, consumers nowadays like to shop online. This applies to alcoholic beverages as well. Reason enough for the Vereniging SlijtersUnie (a Dutch association which serves the interests of liquor stores) to research whether the online-sellers of alcohol have the required licenses to do so.

The product Heks’nkaas (literally translated: witches’ cheese, best described: a herb cream spread for bread) continues occupying the minds in the Dutch IP circles. In 2015 Levola, the producer of Heks’nkaas, started legal proceedings on copyright protection of the spread’s taste.

Once in a while, we are happy to give an overview of the latest food law related decisions of the Advertising Code Committee (“ACC”) , the self-regulatory institution in the Netherlands. We also refer to issue 2015/6, in which we gave an overview of the most important FIC-Regulation related decisions in 2015.

Market Food Group is proprietor of the figurative trademark ‘Bakkerij ’t Stoepje’. The company is known for their big yellow trucks with red letters. MFG delivers confectionery (including bread) to franchisees and other parties. For the biggest part these other parties consist of market traders.

After all the commotion about the ‘Blue tick’ (“conscious choice”), the ‘Green tick’s little brother (“healthier choice”), the foundation ‘I Choose Conciously’ decided that as of 1 August of this year the Blue tick is no longer permitted on ‘products with children’s marketing’.

In the Albert Heijn TV commercial for bread with the ‘Broodnodig’ label, baker Patrick proudly proclaims that his fresh bread contains only the essentials. The complainant is angry because he has discovered on the label that the multigrain bread also contains dextrose, and that is not essential.

The recent Court of Justice ruling Innova Vital gives us another (future) classic: the strict rules in the Claims Regulation are also applicable to commercial communication from food businesses to healthcare professionals.

Allergen-free, what does that actually mean? That was what crossed the minds of the complainants when they saw the claims (100%) allergen-free tomato and vegetable soup and allergen-free meat on the internet. The complainants took this case to the Advertising Code Authority (RCC).

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.

Are Goody Good Stuff sweets better or healthier than other sweets? The website says that they contain only natural flavourings and colourings. A complainant at the Advertising Code Committee (ACC) thinks the name Goody Good Stuff is misleading.

It has been quite a turbulent year for food law. After the important Teekanne-judgment on packaging and consumer deception the European Court of Justice delivers an interesting judgment: Innova Vital. We do not need a crystal ball to predict that you will be hearing this name a lot more in the future.

What should a food company do if it suspects that a food product is possibly unsafe? Rules on necessary action taken by food companies are provided by Article 19 of the General Food Law Regulation (178/2002).

Last week, at the 7th International Fresenius Conference in Frankfurt (Mainz), Sarah Arayess lectured on “Health Claims and Functional Ingredients”. Sarah expanded on the rules applicable to food advertising on social media.

In our NEWS 2015-4, we already wrote about the strict position of the Advertising Code Commission (ACC) regarding botanicals that are brought to the market as nutritional supplements. Since the European Claims Regulation, only specific health claims approved by the European Commission after being adviced by EFSA (European Food Safety Authority) for an ingredient are permitted.

Summer is approaching, so it is diet season again. Did you know that konjac root can aid in weight loss? The official name for this edible plant from the Arum family is Glucomannan. The root grows in Japan, China, and Indonesia.

The fact that we live in a time when focus on healthy eating is perhaps bigger than ever, is more or less stating the obvious. Marketing departments are also quick in responding to this trend: many products mention why they are so good and healthy. The stage for this health battle is the supermarket, where packages and ads are fighting for your attention.

Let me tell you about the birds and the bees…Zonnatura is a manufacturer of healthy (biological) products. The company is convinced that it is unnecessary to use a lot of additives to make tasty and healthy food. They show this opinion in a commercial with a singing bee flying through nature, ending up in a factory.

The most important decision in the area of food law in 2015 is without doubt Teekanne. A German consumer organisation found it misleading that tea packaging depicted raspberries and vanilla blossoms with the logo “nur natürliche Zutaten” (only natural ingredients); naturally the consumer would expect the tea to consist of raspberries and vanilla aromas.

“Mmm, tasty. Mmm, also tasty.” Lidl is allowed to advertise its products in this way in its campaign “Waar kies jij voor?” (What do you choose?), so the Advertising Code Committee (ACC) decided on 7 March 2016. In the campaign, Lidl compared a number of private label products with premium brand products.

In our last country report (EFFL 06/2015), we stressed that the Dutch Advertising Code Committee (ACC) is a force to reckon with in Dutch food law. Apart from applying rules on misleading and comparative advertising, the ACC also applies specific statutory food regulations, such as provisions on food information (FIC Regulation) and on nutrition and health claims (Claims Regulation).