Filling weight without sausage casings and sausage clips

The weight of non-edible sausage casings and sausage clips must not be taken into account when determining the filling weight of pre-packaged foodstuffs. The Federal Administrative Court (BVerwG) in Leipzig decided this on 06.05.2025.

What is this about?

The question of whether the weight of non-edible sausage casings and sausage clips may be taken into account when determining the net filling weight of pre-packaged sausage products has led to intensive legal disputes in recent years. The background is market surveillance measures against manufacturers who included these components as part of the sausage product in the filling weight. While the Higher Administrative Court of North Rhine-Westphalia (OVG NRW) initially approved this practice, the Federal Administrative Court (BVerwG) has now clearly rejected this view, though only the court's press release has been published so far.

Decision of the OVG NRW (Judgment of 23 May 2024, Az. 4 A 779/23)

The OVG NRW took the view that sausage casings and clips, if they were customary in trade to be part of the sausage, were part of the "product" within the meaning of the pre-packaged products legislation and therefore counted towards the filling weight. Its main arguments were:

• Concept of the product: According to the Richtlinie 76/211/EWG and the Mess- und Eichgesetz, filling weight was to be understood as the actual quantity of product. Customary coverings such as non-edible sausage casings and clips were components of the goods if they were sold as a "tradeable product".
• Consideration of trade practices: Article 4(3) of Richtlinie 76/211/EWG required the observance of national trade practices. The integration of the casings into the nominal filling weight was therefore permissible.
• No direct amendment by LMIV: The Lebensmittelinformationsverordnung (LMIV) contained no new or different definition of net filling weight. Rather, it referred to existing provisions such as the pre-packaged products regulation and the MessEG.
• Continued application of RFP: The former directive on filling weight verification (RFP), according to which sausage casings and clips were counted towards the net filling weight, remained relevant, at least for the purposes of defining the term.

The OVG set aside the prohibition order because, in its view, the statutory prerequisites for intervention under § 50 Abs. 2 MessEG were not present.

Contrary decision of the BVerwG (Judgment of 6 May 2025, Az. 8 C 4.24) – according to the press release of the court

The Federal Administrative Court (BVerwG) quashed the OVG judgment and clarified:

• Exclusion of non-edible components: The net filling weight within the meaning of Article 9(1)(e) LMIV and the provisions of the pre-packaged products regulation comprised exclusively the edible foodstuff, in this case the sausage meat. Non-edible casings and clips were part of the packaging and not part of the foodstuff.
• Precedence of special provisions: The pre-packaged products regulation refers to the LMIV, whose definition takes precedence. Reference to earlier administrative practice such as the RFP was therefore not permissible.
• Consumer protection: The inclusion of non-edible components led to a misleading quantity statement, which was contrary to the purpose of consumer protection.
• Binding effect of LMIV: As a directly applicable EU regulation, the LMIV set the applicable standards. The BVerwG refers to the clear wording and meaning of the term "net filling weight", which refers to the actually edible foodstuff.

Assessment of the legal position

With the BVerwG judgment, it is now definitively established at the highest judicial level that non-edible casings and clips must be excluded when determining the filling weight. The contrary view of the OVG NRW, which was based on a broad understanding of the term "product", is thereby superseded. The inclusion of these components in the net filling weight contravenes the consumer protection standards stipulated by Union law and may lead to a prohibition of placing on the market.

Recommendations for action for affected companies

1. Check and implement the taring obligation: Manufacturers should immediately ensure that non-edible components such as synthetic sausage casings and metal clips are not included in the filling weight statement.

2. Adapt production processes: The calibration of the scales and the filling processes should be adjusted so that exclusively the weight of the edible product is included in the net filling weight.

3. Update labelling: The packaging information should be reviewed, in particular for the declaration in accordance with Article 9(1)(e) LMIV. Where necessary, additional information on non-edible components in accordance with Annex VI Part C of the LMIV should be provided.

4. Document legal compliance and product safety: Companies should document compliance with the filling weight regulations and be able to demonstrate this in a legally secure manner in the context of market surveillance measures.

5. Adapt contracts with trading partners: Price and delivery agreements that are based on fill volumes may need to be recalculated and adjusted.

For individual advice on converting your product marking and production processes or for accompanying market surveillance proceedings the lawyers at AVANTCORE Rechtsanwälte in Stuttgart are happy to assist.