Article 6 1.
Article 6 1. (b)
|National ID||Court of Appeal of Brussels, 8 May 2008|
|Common name||Decision type||Court decision in appeal|
|Court||Hof van Beroep te Brussel / Cour d''Appel de Bruxelles||Plaintiff(s)||Unilever Belgium BVBA/SPRL|
|Court translation||Court of Appeal of Brussels||Defendant(s)||Materne-Confilux NV/SA / Andros France NV/SA|
|Keywords||misleading advertising, misleading commercial practices, product characteristics, transactional decision|
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(1) An average consumer should be deemed to understand that claiming (in words and through illustrations) that a bottle of 100mg contains the equivalent of 200mg of fruit and vegetables, should not be taken literally, because of transformations and extractions during the production process.
(2) Even when most aspects of a nutritional claim are correct, a claim can mislead the average consumer, particularly when the claim is the key component of the advertisement.
(3) Adding a very small amount of an artificial product should not prevent a producer from claiming that the entire product is "pure fruit and vegetables".
The defendant produces bottles of 100ml containing fruit and vegetables. In its publicity, the defendant:
(1) stated that each bottle is equivalent to 200g of fruit and vegetables, whereby this amount is graphically illustrated using pictures of fruit and vegetables;
(2) emphasised that each bottle contains 50% of the daily recommended nutritional value; and
(3) stated that each bottle is "pure fruit and vegetables".
The plaintiff requested to impose a cease-and-desist order for this publicity, because the three claims are misleading for the following reasons:
(1) it is not possible to fit 200g of fruit and vegetables in a bottle of 100ml, while this is suggested by the publicity and further enhanced by a graphic illustration;
(2) the nutritional value of each bottle does not completely meet 50% of the daily recommended values; and
(3) each bottle contains pectin (a gelling agent) and a tiny bit of demineralised water.
Note: this case concerns the appeal. In first instance, the President of the Commercial Court ruled that mentioning the nutritional value (50%) was misleading, as it is not truthful. The President also prohibited any further use of such indication and the sale of any product containing such indication. The plaintiff appealed against this decision and asked the court of appeal to modify the first decision.
(1) Is the average consumer misled by the claim that 200g of fruit and vegetables are contained in a bottle of 100ml?
(2) Is it misleading to state that a bottle contains 50% of the daily recommended nutritional value, when this is in fact note entirely the case?
(2) Is is misleading to state that an industrially prepared bottle contains "pure fruit and vegetables"?
(1) The court considered that the average consumer is aware that it is not possible to fit 200g of fruit and vegetables in a bottle of 100mg, because the content of the bottle is the result of extraction during the production process.
With respect to the graphical illustrations of the fruit and vegetables, the court considered that the average consumer is accustomed to such visualisations, and will not be misled by them.
(2) While the bottle met the 50% threshold for most aspects, it did not meet this threshold with respect to fibres (only 1.5g instead of 3.7 to 4.8g). The court therefore rejected the argument of the defendant that this 1.5g meets the food labelling requirements of Regulation 1924/2006, because the claim of plaintiff concerns publicity and not labelling requirements.
The court also rejected the argument that the accompanying website provides a more detailed explanation of the various nutrition values.
The court thus concluded that the average consumer can be misled by the inaccurate 50% claim.
(3) Pectin is also found in apples, and was also accepted by the Court of Justice in case C-465/98 as not undermining "purely natural" claims.
With respect to the demineralised water, the court considered that the small quantity will not change an average consumer's transactional decision.
|URL Decision||Decision full text|
(1) The claim was rejected.
(2) The claim was accepted.
(3) The claim was rejected.
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