Food Law Corner

The CERHA HEMPEL Food Law Corner provides an insight into current legal developments and the latest case-law in the food and beverage industry. Our attorneys regularly advise clients on the regulatory requirements in connection with food information, health and nutrition claims, advertising & marketing, novel foods, the introduction of food supplements on the market and much more. We represent our clients in administrative proceedings, cases under the Unfair Competition Act, and trademark protection including PDO and PGI.

Misleading claim as to the effect of a product improving cardiac output

"Coenzyme Q10 Capsules", "L-Carnitine Tartrate (Lonza)" and "L-Carnosine Capsules", all three of which are designated as food supplements, shall not be attributed and advertised with the disease-related claim that the product in question or its contents may boost cardiac output from 8 % to 33 %.

Retailer responsibility for non-compliance with food information rules?

In practice, the question often arises whether a retailer is responsible for infringements relating to the labelling of branded goods. Article 8 of the Food Information Regulation (Regulation (EU) No 1169/2011, "FIR") provides an answer to this question.

Different batches, no application of the "ne bis in idem" principle

Clients often enquire whether an administrative penalty can be imposed once only or per product in connection with the placing on the market of products. Answering this question (which is rarely relevant in practice) is difficult and depends on the circumstances.

Trademark contrary to public policy: No trademark protection for "Cannabis"-signs at EU level

Under EU law, inter alia, the following signs are not to be registered as trade marks: "Trade marks which are contrary to public policy or to accepted principles of morality" (Article 7(1)(f) of Council Regulation (EC) No 207/2009). On this basis, registration of the device trademark "CANNABIS STORE AMSTERDAM" as an EU trademark was recently refused.

German balsamic vinegar – The protected geographical indication (PGI) Protection is granted to the term "Aceto Balsamico di Modena" as a whole

The name "Aceto Balsamico di Modena" (balsamic vineagar from Modena, Italy) has been registered as a protected geographical indication (PGI) since 2009. Already at that time, Germany submitted an (unsuccessful) objection to its registration because it was concerned that it would adversely affect pre-existing products marketed under the designations "Balsamessig/Aceto balsamico".

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

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.

DAC Regulation "Carnuntum"

The Law on Wine (Weingesetz) provides various designations depending on the origin of the grapes. "Regional wines" must originate from a single wine-growing region (Weinland, Bergland, Steierland), whereas "quality wines" need to be grown in one of 17 wine-growing areas.

No EFSA-objections to cacao pulp

Novel foods may only be placed on the market if they are authorised by the European Commission and registered in a Union list. A special notification procedure applies to such foods that have a history of safe food use in a third country ("traditional food from a third country").

The principle of Freedom to copy: the Unfair Competition Act provides no protection for the form and packaging of "MAGNUM DOUBLE" ice cream

The plaintiff sells and distributes "MAGNUM DOUBLE" ice creams on a stick. In the present case, the plaintiff filed a complaint to object to the fact that the defendant had adopted the oval form of the original ice cream product, which is characterised by three layers in total, namely (i) a layer of icing containing cocoa, (ii) a soft layer with a filling in a variety of flavours, and (iii) a layer of chocolate. The plaintiff also wished to prohibit the defendant from offering its product under the name "Gelatelli DOUBLE" or "DOUBLE" by using a font and font colour likely to cause a likelihood of confusion with MAGNUM DOUBLE.

Red clover in germ flour qualifies as a novel food

Under the Novel Food Regulation (Regulation (EU) 2015/2283), "novel foods" require authorisation by the European Commission and inclusion in a Union list prior to their being placed on the market. A food is novel if – in simple terms – it falls into certain food categories and was not used for human consumption to a significant degree in the European Union prior to 15 May 1997.

Food Law Ticker
We collect the latest decisions from food law in a fully automated way and make them available here. No guarantee for relevance. Based on #opendata by the BMDW,