Must a raspberry be a raspberry?

Is it sufficient for a herbal tea that is labelled and advertised as "RASPBERRY-VANILLA ADVENTURE with natural flavours" but which in fact contains no raspberry or vanilla components to include merely a reference to the use of imitations in the ingredients list? On misleading representations through pictorial depictions on the packaging of foodstuffs.

A well-known German tea trading company distributes under the designation "FELIX RASPBERRY-VANILLA ADVENTURE" a herbal tea whose packaging bears depictions of raspberries and vanilla flowers as well as the notices "only natural ingredients" and "HERBAL TEA WITH NATURAL FLAVOURS". In fact, this tea contains neither components of raspberries or vanilla nor flavours derived from raspberries or vanilla. Rather, it contains only natural flavours with the corresponding taste – which is apparent from the ingredients list printed on the packaging.

According to the view of the Federal Association of Consumer Centres and Consumer Organisations, the information on the packaging of the tea regarding its contents is misleading. Based on the product name, the depictions of raspberries and vanilla flowers and the addition "only natural ingredients" in the golden circle, the consumer would expect the tea to contain components of vanilla and raspberries, or at least natural vanilla flavour and natural raspberry flavour. The tea company was for this reason called upon to cease the practice and to pay the costs of the warning letter.

The Regional Court (LG) Düsseldorf had initially upheld the claim. The appeal resulted in the rejection of the claim, because in the view of the Court of Appeal (OLG) a misleading of the consumers addressed could not be assumed. The legal dispute is now pending before the Federal Court of Justice (BGH) in the appellate proceedings for decision.

Court decision

The Federal Court of Justice (BGH) initially suspended the proceedings and, bydecision of 26.02.2014 – Az. I ZR 45/13submitted to the Court of Justice of the European Union (EuGH) the question of whether the presentation of a foodstuff by pictorial depictions and the advertising thereof through appearance, designation or pictorial representation may suggest the presence of an ingredient, although the ingredient is in fact not present and this becomes apparent only from the ingredients list.

In the past, the Court of Justice of the European Union (EuGH) has, in cases where the correct composition of a foodstuff was apparent from the ingredients list, assessed the risk of misleading as low because it proceeds on the assumption that the informed consumer makes use of the information opportunities available to him.

According to the view of the Federal Court of Justice (BGH), however, these principles cannot apply when – as in the present case – the consumer already receives a clear answer to the question from the presentation and information on the packaging as to whether the taste of the product is determined in part by flavours derived from raspberry fruits and vanilla plants. In such a case, according to the Federal Court of Justice (BGH), even the informed consumer has no reason to seek further information by means of the ingredients list.

Conclusion

Once again, the supreme courts have had to deal with the consumer model and the expectations of a consumer. It remains to be seen how informed the informed consumer is deemed to be nowadays according to the views of the Court of Justice of the European Union (EuGH) and the Federal Court of Justice (BGH).