"Dual quality" – The marketing of food products that vary in their composition in different Member States constitutes a misleading commercial practice

New Deal for Consumers – 2018/0090(COD)

The European Commission's "New Deal for Consumers" aims to modernise and improve the enforcement of EU consumer protection rules. The package of measures also includes an amendment of Directive on Unfair Commercial Practices (UCPD), after almost 15 years since its entry into force.

One important amendment is the prohibition of "dual quality". To avoid consumers from being misled, the identical marketing of goods in several EU Member States, despite the products having a significantly different composition, is – unless justified by legitimate and objective factors – henceforth prohibited; it constitutes a misleading commercial practice (Article 6(2)(c) UCPD).

National legislation, the availability and seasonality of raw materials, as well as voluntary strategies to improve access to healthy and nutritious food are all listed in the recitals as "legitimate and objective factors" that can justify the different composition of products. Moreover, traders shall have the right to offer goods of the same brand in packages of different weight or volume in different geographical markets. Traders must provide adequate information on existing differences; providing information on the label of goods should generally be preferred (recital 53).

The new misleading commercial practice reflects not least the trust consumers place in a trademark, as well as the trademark’s quality and guarantee function according to which consumers expect in principle that goods sold under a specific brand possess certain (consistent) qualities and properties.

The new provisions were adopted at the end of November 2019 and are expected to be published in the Official Journal in the coming days. They will need to be implemented in national law.