Promoting sustainability and health benefits can lead to legal trouble in the European Union. While the EU is discussing strategies against plastics and a ban on certain single-use plastics, consumers are requesting more sustainability and extra benefits from their consumer products.
When addressing these consumers’ needs, companies should be aware that there are a number of detailed rules restricting “nature-“, “organic-“, “free”-and “health-“claims.
When developing new products, product concepts, and marketing strategies relating to sustainability or health benefits, companies are well advised to check with their legal counsel whether or not a certain product name, trademark, or marketing campaign complies with the relevant provisions and case-law on such claims. Failure to do so could lead to regrettable post launch amendments dictated by local authorities or the courts. The forced rebranding of “Bio-oil” to “Bi-oil” in Germany by court order is just one example.
- Companies should be particularly thoughtful when making one or more of the following claims. In case of non-compliance with the legal framework, product information, claims and trademarks relating to these benefits could be banned by authorities or courts – with severe consequences e.g. for on-pack promotions or trademark investments.
- Claims relating to health and/or nutrition benefits may only be used subject to the precondition that they are included in special lists of authorized health and nutrition claims when used for food marketed in the EU. In addition, the conditions and wording set forth in those lists need to be observed. For example, a food marketed in the EU may only carry a reference to vitamin C or a health claim with a wording similar to “Vitamin C contributes to the normal function of the immune system,” if it contains a certain minimum of this vitamin.
- References to organic, eco(-logical), or bio(-logical) origin or ingredients can only be made for foods marketed in the EU where those foods are produced in compliance with the EU legal framework on ecological farming amended 2018, the new provisions to be observed as of 2021 at the latest. For organic cosmetics, the same rules are applied in parts.
- When referring to nature or natural claims, companies should be aware that besides certain specific legislation e.g. for natural flavorings in the EU (at least 95 percent by w/w from the source material referred to) there is particularly stringent national case-law allowing nature claims only where a product (i) contains only ingredients consumers naturally expect, (ii) has undergone
only essential processing, and (iii) shows only ubiquitous pollution. - Likewise, free labelling such as “free from GMO” underlies statutory restrictions.
In this year’s edition of Consumer Horizons, the Hogan Lovells global Consumer team identifies trends that will impact food and beverages companies, fashion and luxury goods producers, retailers, consumer electronics manufacturers, and other consumer companies throughout 2019.
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