In brief

In its recent judgment (24 March 2022 – C-533/20, Somogy Megyei Kormányhivatal/Upfield Hungary Kft.), the European Court of Justice has decided how specific the labeling of vitamins in the list of ingredients of food must be. The court ruled that indicating the specific vitamin formulation (e.g., “cholecalciferol”) is unnecessary. Rather, using the more general name of the vitamin such as “Vitamin D” in the list of ingredients is sufficient. In addition, the judgment of the court can be understood in such a way that indicating the more complex vitamin formulation in the list of ingredients might even be prohibited.

Key takeaways

Facts of the case

The defendant marketed margarine fortified with vitamins. The list of ingredients of this product contained, among others, “Vitamins (A, D)”. The competent authority took enforcement action and demanded that the list of ingredients includes the vitamin formulation term “cholecalciferol”, arguing that the Food Information Regulation (EU) No. 1169/2011 in conjunction with the Fortification Regulation (EC) No. 1925/2006 requires the use of the relevant vitamin formulation term.

Judgment of the European Court of Justice

Before answering the question raised by the competent authority, the European Court of Justice had to first deal with the question of whether vitamins may be indicated in the list of ingredients at all. In the Food Information Regulation, vitamins are only mentioned in the definition of “nutrients”. Nutrients are not shown in the list of ingredients but in the nutrition declaration. However, in the opinion of the court, inclusion in the nutrition declaration does not preclude the same substance from being listed in the list of ingredients as well. Vitamins therefore can be included both in the nutrition declaration and in the list of ingredients.

The court then stated that vitamins must be included in the nutrition declaration in compliance with point 1 of Part A of Annex XIII of the Food Information Regulation, labeling such as “Vitamin A”, “Vitamin D” or “Vitamin E”. In order to ensure a coherent interpretation of the Food Information Regulation, vitamins should be listed under the same names in the list of ingredients. The court pointed in particular to Article 7(2) of the Food Information Regulation, which requires that food information must be accurate, clear and easy to understand. The indication of the more complex and more technical vitamin formulations (such as “retinyl acetate” or “cholecalciferol”) would not meet the above-mentioned clarity requirement, as these are relatively obscure and little known to the general public, and would therefore be less clear and less easy to understand for an average consumer.

Consequences

At first glance, the enforcement actions taken by the competent authority against the defendant in the case of the European Court of Justice appear to be consequential. Art. 18(2) Food Information Regulation stipulates that “ingredients shall be designated by their specific name” in the ingredient list. Against this background, indicating the specific vitamin formulation (“cholecalciferol”) instead of or in addition to the general name of the vitamin (“Vitamin D”) in the list of ingredients seems to be necessary.

The European Court of Justice, however, ruled that indicating the specific vitamin formulation in the list of ingredients is not legally required. In its judgment, the court emphasizes the clarity requirement of Art. 7(2) Food Information Regulation. The court’s focus on the clarity requirement might have more far-reaching consequences than simply the conclusion that vitamin formulations do not need to be indicated in the list of ingredients. As Art. 7(2) Food Information Regulation requires food information to be understandable for the consumer, indicating complex vitamin formulations in the list of ingredients might not be allowed at all. Such formulations could not be understandable for consumers and could therefore not meet the clarity requirement. While the court did not explicitly address this topic, it concisely agreed with the statement of the Advocate General. According to the Advocate General, indicating the vitamin formulation in the list of ingredients should at best be permissible in individual cases, especially in the area of food supplements where consumers pay more attention to the exact details of the ingredients of a product than in food in general. As a consequence, the labeling of vitamins in the list of ingredients should be limited to the general name of the vitamin and not the name of the vitamin formulation.

For further information, or to discuss specific product labeling, feel free to contact us.