Apart from information about food products required by law, food producers may include optional information on labels concerning the characteristics of the product. Typically not much additional information is provided, because after inclusion of the mandatory data there’s not much room left on the label. This makes selection and verification of this additional information particularly important. Well-chosen additional information can help sell the product, but poorly chosen information can generate serious legal problems.
Poland’s Supreme Administrative Court addressed the issue of how to evaluate additional information about foods in a judgment issued on 24 October 2014 in a case involving labelling of milk.
A producer of milk using the UHT (ultra-high temperature) process included on its label, in addition to the abbreviation “UHT”, also the word “long-term” (długoterminowe). Use of this term was questioned by state officials from the Agricultural and Food Quality Inspectorate, who found that it suggested that the milk had special properties, whereas in fact similar products from all other producers had the same properties. The inspectors thus concluded that the additional information was misleading to consumers.
The milk producer pursued all avenues of appeal, which lasted over two years, but ultimately obtained a favourable ruling from the Supreme Administrative Court. The following guidelines for food producers may be drawn from the court’s ruling in that case.
1. Inform consumers without disparaging competitors
All unwarranted attempts to discredit products from competitors are doomed to failure. It is clear that if it is impermissible or technologically not feasible to add preservatives to a product, the statement that the product is “without preservatives” will be challenged by both inspectors and competitors. Nor can it be indicated that the product is the only one with a certain characteristic when other similar products also have that characteristic. So what if a producer indicates on the label that the product is “long-term,” but without suggesting that it is the only such product on the market?
In the court’s view, such information is permissible—assuming of course that it is true. Assuming that consumers would interpret this a contrario and conclude that other products do not have this characteristic would be taking the protectionist approach to consumers and competitors too far.
Thus common sense should be used when evaluating information of this type. If the message does not contain even an indirect reference to competitors’ products, such a reference should not be inferred and the producer should not be accused of seeking to disparage the competition.
2. Educate consumers about your products
The most comfortable situation for the producer is when its products are purchased by educated consumers, because a consumer who is aware of the characteristics of the product he or she is buying is less susceptible to being misled. But consumers of any goods—not just foods—will not be educated if producers do not educate them by providing them accurate and complete information about the product.
The mandatory information alone may not be enough to achieve this. For example, as the court pointed out in this case, the average buyer of UHT milk may have no idea what this abbreviation means. Therefore adding the word “long-term” is fully justified. Moreover, if the consumer does not understand what it means for milk to be UHT, the additional information is not misleading, because it is accurate and also necessary for an understanding of the mandatory term UHT.
3. Know your average consumer
But the key to proper evaluation of the degree of safety of a voluntary statement on the packaging of food products is to consider the consumer of that type of product and his or her expectations. The one-size-fits-all model of the “average consumer” is a creature of the past. Now the model is subject to modification depending on the type of product and the conditions under which it is sold.
It may turn out that consumers of a certain product are not average, but sensitive and more easily misled. But over time, if that type of consumer is provided with a regular dose of accurate and accessible information about the product, he or she can become a more educated consumer and not so susceptible to potentially misleading content.
Therefore, to present additional information and advertising messages safely, it is essential to know the consumer of your own products.
Joanna Krakowiak, Life Science and Regulatory Practice, Wardyński & Partners