Raspberry-Vanilla-Adventure vs Wild Berries Fruit Bar

On 2 December 2015, the German Supreme Court (Bundesgerichtshof, “BGH”) considered pictures of raspberries and vanilla blossoms used together with the claims “only natural ingredients” and “fruit tea with natural flavours” on a tea-pack to be misleading because the corresponding tea actually did not contain any “real” vanilla or raspberries or “real” flavours thereof, but only “natural aromas with vanilla and raspberry flavour”. This was specified in the list of ingredients, which was equally shown on that tea-pack (BGH, 2.12.2015, I ZR 45/13 – Himbeer-Vanille-Abenteuer II).

In its preliminary ruling in this case, the ECJ previously held that a proper ingredients-list (in this context, see Directive 2000/13/EC on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs) cannot remedy any misleading impression regarding any actual ingredients (e.g. natural, as it is the case here), which, e.g., results from the package-design and/or any advertising of the concerned product (ECJ, 4.6.2015, C-195/14Bundesverband der Verbraucherzentralen vs Teekanne.

Consequently, the BGH held that the overall impression created by the package-design must be scrutinized for answering the question whether  an averagely informed, reasonably attentive and critical consumer may be misled regarding the presence of any ingredients or flavours. Hence, the ingredience-list alone is irrelevant, even if nutrition-conscious consumers regularly check this list before making their purchase decision.

At first glance, the Austrian Supreme Court (Oberster Gerichtshof, “OGH”) came to a different conclusion when dealing with a “Wild Berries Fruit Bar” in 2011 already. The packaging of this fruit bar showed many pictures of raspberries, blackberries, blueberries and wild strawberries. The ingredient-list, however, only showed the following ingredients: “apple-powder, oligo fructose syrup, raisins, dried apricot pieces, dried apple pieces, oatmeal, vegetable fat, almonds, wafer (wheat flour, farina, vegetable oil), chokeberry juice concentrate, multi-fruit juice concentrate 2,6* (actual weight proportions may vary: raspberry, blackberry, blueberry, wild strawberry), dextrin, lemon juice concentrate, natural flavours, table salt. Total fruit content: 56%
* equals 14% multi-fruit juice concentrate.

Pursuant to this prior OGH decision, an averagely informed, attentive and knowledgeable consumer predominantly expects a “Wild Berries Fruit Bar” merely to reasonably account for the “wild berry” taste (apart from the presence of the basic mixture that defines a “bar”). However, and particularly in view of its dimensions and shelf life, the consumers do not expect such a “Wild Berries Fruit Bar” to contain entire untreated wild berries. Should such a product contain a sufficient amount of wild berries in the form of a corresponding fruit juice concentrate, the consumers’ expectations are met. This particularly applies because such concentrates are commonly used for flavouring purposes in the food industry and this industry practice therefore is well-known to the consumers. Hence, the consumers expect such a fruit bar (i) to smell and taste like wild berries and (ii) to contain wild berries; with 23 grams of wild berries per 100 grams of fruit bar, the product in question met these expectations. (OGH, 15.2.2011, 4 Ob 228/10y – Waldbeeren-Fruchtschnitte).

Although this OGH decision seems to have been overruled by the BGH decision and the ECJ preliminary ruling relating to the latter, all of these decisionscan be brought in line as follows:

(i) the product packaging must be assessed as a whole – the ingredient list alone is irrelevant;

(ii) depending on the specific product category, different consumer expectations must be considered;

(iii) If the packaging shows fruits, the product must either contain all corresponding fruit varieties themselves or at least natural aromas thereof. And this was the crucial point in the present decisions: whilst the German “Raspberry-Vanilla-Adventure” tea merely contained aromas tasting like raspberry and vanilla, actual wild berries (in the form of a corresponding fruit juice concentrate) were used for producing the Austrian “Wild Berries Fruit Bar”

(iv) Broadly speaking: natural aromas merely tasting like fruit(s) are not sufficient for backing up fruit pictures on the packaging. Fruit contents and/or fruit aromas, however, do.

In any case, both cases clearly show that having a closer look definitely pays off.

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