No sweets for the authorities: “Without artificial colour” not per se a misleading advertising claim on confectionery products

Background of the case  

A well-known German confectionery manufacturer advertised the freedom of its fruit gums, coloured with plant and fruit extracts, from the use of “artificial colours”. The competent authority considered the labelling claim as misleading under Paragraphs 11(1)(1) and (3) German Food and Feed Code (LFGB) in conjunction with Article 7(1) and (4) of Regulation (EC) No 1169/2011, since the legislature does not make a distinction between ‘artificial’ and ‘non-artificial’ colour additives, and submitted the file to the public prosecutor for further investigation. By way of background information, intentionally misleading food advertising constitutes also a criminal offence under Section 59 (1) No. 7 LFGB, which is punishable by imprisonment of up to one year or a fine. Thereupon, the confectionery manufacturer filed a declaratory action with the Administrative Court Freiburg (Case No. 8 K 6149/18) to achieve the temporary suspension of the criminal investigation proceedings on the responsible person until the administrative court has taken a legally binding decision on the allegation of misleading advertising.

The Decision of the Administrative Court Freiburg

In its ruling of 10 December 2019, the Administrative Court Freiburg granted the action for a declaratory judgment of the confectionery manufacturer and rejected the accusation of misleading product labelling by stating “without artificial colours”. The average consumer will correctly understand it to mean that no chemical substances were used to colour the fruit gum. It is not decisive that the plant and fruit extracts used to colour the fruit gum are not themselves considered to be colour additives under Regulation (EC) No 1333/2008 and that no legal distinction is made between artificial and non-artificial colours. On the contrary, the decisive factor is the general usage of language, which is not unfamiliar with such a distinction. For example, the concept of ‘artificial colours’ has been the subject of press reports after British researchers found a link between concentration difficulties in children and the consumption of sweets containing certain colours. Moreover, the manufacturer does not advertise with self-evident facts. The absence of (artificial) colours is a particular feature of the respective product, since not all confectionery of that kind must be free of colour additives. The decision is not yet final, as the competent authority can still appeal to the VGH Baden-Württemberg.

Comments on the decision

Unlike other negative claims (e.g. “gluten-free”, “non-alcoholic”, “decaffeinated”, “without genetic modification” or the nutritional claims “sugar-free”, “fat-free”, “energy-free”, “sodium/salt free”), the reference to the freedom from (certain) additives (such as colours) is not yet subject to any specific EU or German legal regulation which sets out specific conditions of use.

Thus, the sole criterion for assessing whether the use of such a claim is permissible is the general prohibition of misleading advertising or, positively put, the “presumed expectation” of a fictitious average consumer who is reasonably well informed, observant and circumspect, taking also specific social, cultural and linguistic factors into account (see Recital 18 Directive 2005/29/EC). This again raises the question of the extent to which consumer expectations are also shaped by legal definitions and what degree of differentiation one can assume here.

Surveys on consumer understanding conducted in the past in Germany have shown that advertising statements that emphasize the absence of certain ingredients are understood relatively widely by consumers (see Spiller/Zühlsdorf/Nitzko, ZLR 2014, pp. 523, 536). The average consumer is not necessarily aware of the legal differences between “colouring foodstuffs” and “colour additives”, which are referred to in advertising. This is not surprising, since the boundaries between colours as defined in Regulation (EU) 231/2012 and the colouring foodstuffs derived from plant material are ultimately smooth. A boundary was previously drawn by the publication of the legally however non-binding “Guidance Notes on the classification of food extracts with colouring properties”, which are currently being reviewed by the EU Commission. Therefore, if only the consumer’s perception is considered, the consumer is likely to expect that any reference to the absence of colours also means free from any other colouring ingredients. On the other hand, the aforementioned legal differentiation must not completely be ignored. The European legislator has so far recognised that there are other colouring food ingredients in addition to “colours” (additives) to be used as substitutes and whose existence may also be indicated by negative label claims (“without colour (additives)”). One can argue splendidly about whether one should additionally state here, for reasons of better consumer information or even education, that the product instead contains “colouring plant extracts” (if it actually contains these, of course). Those companies who want to be on the safe side will certainly take this option into account.

In the specific case, however, the confectionery manufacturer had made a differentiated reference to the freedom from one particular type of colours, namely the “artificial colours”. Such colours do indeed exist, first and foremost in the form of so-called azo colours, which are also referred to in the ruling of the Administrative Court Freiburg. Since 20 July 2010, these synthetically produced food colours must even be additionally labelled with the statement “may have an adverse effect on activity and attention in children”. “Artificial” azo colours are still popular in the production of soft drinks, sweets, ice cream and fine bakery products due to their high colour and light fastness. For that reason, the decision of the Administrative Court Freiburg is also consistent as it considers the specific label claim also not as a misleading advertising of a so-called self-evident fact but as an indication of a genuine special feature of the respective confectionery.

The decision can also not be objected in other respects. It is true that the legislator itself does not differentiate between “natural”, “nature-identical” and “artificial” additives in European additives law, but only between the individual functions of the additives (e.g. colours, sweeteners, preservatives). However, this does not justify a per se advertising ban on the grounds of misleading advertising as claimed by the authorities if such differentiation is drawn upon (cf. Working Group of Food Chemistry Experts of the Federal States and the Federal Office for Consumer Protection and Food Safety (ALS) Opinion No. 2016/26 on the use of “without artificial colours”). Consumers are familiar with the differentiation between “natural” and “others”, i.e. “non-natural”, and therefore above all “artificial” (chemical, synthetic) substances. This follows not only from a parallel use of such “natural” (and others, non-natural) claims in the European flavouring legislation (cf. Art. 3 (2) lit. c), 16 Regulation (EC) 1334/2008).

Similarly, the consumer’s attention could also be drawn to the fact that the use of a particular type of colour additive, namely the ‘artificially’ produced ones, was not used in the specific confectionery. This was the case here. The consumer could also verify this fact by looking at the list of ingredients, which did not even include the term “colours” in view of the alternative use of colouring food extracts. A deception by a factually correct and verifiable assertion is not recognizable. Truth and reality coincide.

In this respect, the ruling of the Administrative Court of Freiburg creates further legal certainty for the use of “free from colours/additives” claims. To date, there are only very few published German decisions on this subject that can provide appropriate guidance. In this respect too, the recent ruling is very much welcomed.

Industry all-rounder"
JUVE Handbook 2018/2019
"Frequently recommended lawyer" in food law
JUVE Handbook 2018/2019
"Open and fair, professionally well-versed"