Retailer responsibility for non-compliance with food information rules?

Article 8 of the Food Information Regulation

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. Article 8(1) FIR stipulates that the food business operator under whose name or business name the food is marketed bears responsibility for the food information; a retailer clearly does not bear this „primary“ responsibility with regard to third-party brands. However, Article 8(3) FIR prohibits operators that do not affect food information from supplying food they know or presume to be non-compliant with the applicable food information law. Therefore, the retailer does bear certain responsibility.

In a decision from December 2019 (LVwG-S-2096/001-2018), the Regional Administrative Court of Lower Austria dealt with these provisions (in continuation of earlier case-law) – with certain significance for supervisory practice: The retailer is only prohibited from supplying non-compliant food. The term "supplying" is narrower in scope than the term "placing on the market", which is otherwise frequently used in food law provisions. Supplying only includes the passing-on, and not for instance the delivery, storage and offering for sale of food.

This means as follows: If the supervisory bodies – as is usual – take a sample of a third-party brand not in line with the FIR requirements from the store warehouse or off the shelves, the retailer cannot be fined; this is because storage and displaying for sale as well as the preceding delivery do not constitute supply. This was also the case in the abovementioned decision: By delivering the product from the company headquarters to a branch, the non-compliant food had not yet been "supplied". The court reversed the official sentence on this point of law.

A foodstuff is only considered to have been "supplied" if the retailer has already passed it on to the buyer, i.e. in particular if the purchasing process has been completed.