Regarding the Labelling Requirements under the KakaoV

According to the Regulation on Cocoa and Chocolate Products (KakaoV), certain foodstuffs must bear an indication of the percentage cocoa solids content – this applies in principle also to chocolate. However, is such an indication necessary if the chocolate itself is not the finished product, but – as in the case of pralines – is only used as an ingredient of another finished product? This question had to be decided by the Higher Regional Court (OLG) Hamburg.

In addition to the particulars prescribed under the Food Labelling Regulation, certain products, including chocolate, must be labelled with the total cocoa solids content by means of the indication "Cocoa: …% minimum".

A company distributed, amongst other things, plum pralines. On the packaging label, it was stated, inter alia, that the product consists of 31 % chocolate. However, no indication was given as to the percentage of cocoa solids in the chocolate used. A competitor considered this to be a breach of the labelling requirement under the KakaoV and issued a warning to the company.

The company rejected the claims asserted. The competitor subsequently made an application for a court order asserting a claim for an injunction. The Regional Court (LG) Hamburg did not find this to be well-founded. The competitor objected to this by means of an interlocutory appeal – with success.

The decision of the court

The Higher Regional Court (OLG) Hamburg ruled in favour of the competitor. By means ofOrder of 19.12.2016 – Az. 3 W 85/16the Higher Regional Court (OLG) Hamburg decided that the labelling requirement under the KakaoV also applies when chocolate is an ingredient of another finished product. The competitor's asserted claim for an injunction is therefore well-founded.

The indication of the total cocoa solids content allows conclusions to be drawn about the quality of the chocolate used and thus serves to provide consumers with accurate information.

Unlike the Regional Court (LG) previously, the Higher Regional Court (OLG) Hamburg does not interpret the absence of pralines from the enumeration of products subject to labelling requirements in the relevant provision to mean that chocolate as an ingredient of pralines is not subject to labelling requirements. The labelling requirement therefore also applies when chocolate is not the finished product, but only an ingredient of a finished product.

Indications of the total cocoa solids content in the pralines as finished product are, according to the court's view, not required, since for pralines the indication would be nearly meaningless in relation to the quality of the chocolate used, because it would not allow conclusions to be drawn about the quality of the chocolate specifically used.

Conclusion

The labelling requirements under the KakaoV regarding the cocoa solids content apply not only to chocolate as such, but also to products with a proportional chocolate content.