Nutri Score knocks on the door – On the draft bill for the first amendment of the Food Information Implementing Ordinance in Germany

On 21.11.2019, the Federal Ministry of Food and Agriculture (BMEL) presented the first draft bill for the legitimisation of the Nutri Score labelling in Germany, which will be discussed in detail in the relevant committees in the forthcoming weeks. The determination of the respective “Nutri Score” is based on a point system in which unfavourable and favourable nutritional elements of a foodstuff are compared with each other. This finally leads to the classification of the corresponding food as “A” (dark green), “B” (light green), “C” (yellow), “D” (orange) or “E” (red). This type of nutritional information has already established itself in other EU Member States such as France, Belgium, Luxembourg, Spain and Portugal, but also requires a corresponding Member State recommendation to be acceptable as voluntary labelling (cf. Art. 35 (2) Regulation (EU) 1169/2011).

The use of the Nutri Score logo has so far been discussed controversial in Germany: On the one hand, the Nutri Score classification of the food with A or B was considered to be an expression of positive nutritional properties and thus a prohibited nutrition claim in the sense of Art. 2 Para. 2 No. 4 Health Claims Regulation 1924/2006 (HCVO). On the other hand, it was criticised that the criteria for the nutritional value classification of the “Nutri Score” were allegedly not based on well-founded and scientifically sound findings of consumer research (cf. Art. 35 para. 1 lit. a) Regulation (EU) 1169/2011). On the basis of these arguments, the Hamburg Regional Court issued an injunction on 16.04.2019 (411 HKO 9/19) prohibiting the defendant from further using the Nutri Score scheme on the labelling of its products. However, in view of the expected amendment in the legal regulation, the parties of the legal dispute on the use of Nutri Score labelling scheme recently agreed on a continued use in an out of court settlement. The new Nutri Score labelling scheme shall find its new legal home in Germany in §§ 3a and 3b of the Food Information Implementation Ordinance (LMIDV) and for now reads as follows:

3a Extended nutrition labelling

(1) Without prejudice to paragraph 3, the person responsible under Article 8(1) or (4), second sentence, of Regulation (EU) No 1169/2011 may place food on the market with the Nutri-Score mark registered as a Community collective mark by the European Union Intellectual Property Office and shown in Appendix 1.

(2) The use of the mark referred to in paragraph 1 shall be voluntary.

(3) When placing on the market under paragraph 1, the person responsible under Article 8(1) or (4), second sentence, of Regulation (EU) No 1169/2011 shall in particular

(a) to obtain the necessary consent of the proprietor of the trademark; and

(b) to comply with the trademark proprietor’s conditions for use of the trade mark.

§ 3b Publication in the Federal Gazette

The Federal Ministry of Food and Agriculture may publish sample forms and input data as well as a contact address for the electronic forwarding of documents and other data to the trademark owner in the Federal Gazette for the purpose of obtaining consent pursuant to § 3a (3) (a) in German.

The draft bill is to be negotiated in the committees for the first time in December 2019. In addition, based on Art. 23 of Regulation (EC) No 1924/2006, the proposed national legislation must still be notified to the Commission and other Member States. The proposed voluntary Nutri Score labelling scheme is therefore not expected to become law before summer 2020.

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