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.
Dr. Armin Schwabl, LL.M.
Practice Areas
Public Law & European Law,
IT & Privacy,
Compliance & Investigations,
White Collar Crime
The growing demand for vegan and vegetarian products has made transparent labelling a necessity. The new and groundbreaking guidelines issued by the Austrian Codex Commission in November 2023 on the misleading labelling of plant-based, vegan and vegetarian foods are intended to help provide consumers with clear guidance when they are buying such products.
The most recent decision on the labelling of "vegan" products highlights the "vegan" labelling requirements on food packaging. The proceedings before the Regional Administrative Court of Vienna relate to an order to make changes to the labelling of a product labelled as "vegan". The decision is based on the Food Safety and Consumer Protection Act (Lebensmittel-sicherheits- und Verbraucherschutzgesetz). In particular, it refers to Section 5 para. 2 no. 3 of the Act, which stipulates that consumers must not be misled by special labelling.
The amendment to the Austrian Wine Act, which was adopted on 24 May 2023, strengthens the identity of Austrian wine by introducing the "Cross-local wine-growing community" (Ortsübergreifenden Weinbaugemeinde) and makes it easier for winegrowers to report harvests and stocks with the help of a new online tool.
The Austrian Patent Office (ÖPA) prohibited the word mark "TSCHIN" from being registered in goods classes 32 (non-alcoholic beverages) and 33 (alcoholic beverages) on the grounds of lack of distinctiveness and deceptiveness. Within the relevant public, the sign creates the impression that it is gin and related products.
Member states may prohibit the sale of cosmetics if they are confusingly similar to foodstuffs and thus endanger the health of consumers. This was decided by the ECJ in connection with the complaint of a Lithuanian cosmetics manufacturer, which was accused of selling bath balls in the appearance of food ("ice cream scoops"). Caution is therefore required for companies that manufacture food-like products.
Member states may prohibit the sale of cosmetics if they are confusingly similar to foodstuffs and thus endanger the health of consumers. This was decided by the ECJ in connection with the complaint of a Lithuanian cosmetics manufacturer, which was accused of selling bath balls in the appearance of food ("ice cream scoops"). Caution is therefore required for companies that manufacture food-like products.
Under EU law, a trade mark may not be registered if there are absolute grounds for refusal. Accordingly, a sign may not be registered as a trade mark if it consists "exclusively of signs or indications which may serve, in trade, to designate the kind, quality, quantity, intended purpose, value, geographical origin, or the time of production of the goods or of the rendering of the service, or other characteristics of the goods or service" (Article 7(1)(c) of the European Union Trade Mark Regulation [Regulation (EU) 2017/1001]).
Under the Novel Food Regulation (Regulation (EU) 2015/2283), novel foods require EU-wide authorisation prior to being placed on the market.
The Food Safety and Consumer Protection Act and the Health and Food Security Act were both amended by Federal Law Gazette I 256/2021. Some of the new provisions entered into force on 1 January 2022, whereas others took effect on 22 February 2022.
Following a legal dispute that lasted many years between fish finger manufacturer Iglo and its competitor Appel Feinkost, Iglo has suffered yet another setback.