An average, adequately informed and sufficiently careful and reasonable consumer may find it sometimes quite difficult to tell what exactly it is that he/she puts in his/her shopping basket. The situation is no different in the case of a “fruit” tea named “Felix – raspberry and vanilla adventure”, made by the Teekanne company, whose packaging is presented below:
The German packaging features the aforementioned inscription (as translated) as well as a picture of raspberries and vanilla flowers. Additionally, the following slogans encourage you to sample: “fruit tea with natural aromas”, “contains only natural ingredients”, “fruit tea with natural aromas – raspberry and vanilla flavor”. Readers of our blog are most certainly conscious consumers and have already guessed this tea contains no natural raspberries or vanilla whatsoever. A list of ingredients provided on the side of the box reads: hibiscus, apple, orange and lemon peel, blackberry leaves, natural aroma with vanilla and raspberry flavor, blackberry, strawberry, elderberry and blueberry.
The German consumer protection association gracefully named “Bundesverband der Verbraucherzentralen und Verbraucherverbände – Verbraucherzentrale Bundesverband e.V.” found this not to its liking. According to the organization, consumers seeing such packaging should expect a product possessing entirely different qualities. The thing is, the tea described contains no vanilla, or raspberry, nor even a sufficient amount of their natural aromas, only a natural aroma with raspberry and vanilla flavor.
This fact raised some doubts on the part of the German court that decided to make reference to the Court of Justice of the European Union (CJEU) for a preliminary ruling. In its judgment, CJUE invoked the provisions of Directive 2000/13/EC of 20 March 2000:
Article 2(1)(a)(i): The labeling and methods used must not (…) be such as could mislead the purchaser to a material degree, particularly (…) as to the characteristics of the foodstuff and, in particular, as to its nature, identity, properties, composition, quantity, durability, origin or provenance, method of manufacture or production
Article 3(1)(2): (…) indication of the following particulars alone shall be compulsory on the labeling of foodstuffs: (…) the list of ingredients
So what was the final opinion of CJEU? Let’s take a look at the reasons for their decision:
(…) the fruit tea’s packaging (…) suggest[s] that the taste of this tea is in part determined by flavors obtained from raspberries and vanilla flowers. The fruit tea is therefore presented in such a way as to be capable, even in the case of a reasonably well-informed and reasonably observant and circumspect consumer, of creating a false impression as to its composition. The presentation of the fruit tea is also such as to dissuade the consumer from taking note of the list of ingredients (reproduced — in much smaller print — on the product packaging), which sets out the true ingredients.
Besides the fact the “average consumer” could familiarize themselves with the list of ingredients provided on the box, the graphic message of the packaging, in the opinion of CJEU, was so effective that it was likely to mislead the consumer. Thus the German court had to hand down a decision conforming to the aforementioned judgment by the CJEU.
In the context of this case, we might consider stopping for a while in order to examine the concept of “average consumer”. In the legal system, this concept functions as an abstract model between alongside “informed consumer” and “expert”. The decision-making of the CJUE confirms this definition is tightly connected to both EU consumer policy and economic policy in general. In the beginning, it was mainly used in order to accomplish the goals set by EU treaties, but currently consumer protection has become an autonomous field within EU law.
The concept of “average consumer” has seen a long evolution in the decision-making of the CJUE. Initially, the average consumer was treated as “immature and carefree”, thus needing protection due to being irresponsible and having no knowledge of the consumer world. With time, the Court started to consider the consumer to be a well-informed, aware and careful person (cf. the Mars case, file no. C-470/93). Cultural, social and language factors are not insignificant in the perception of the “average consumer” (cf. the case of Estée Lauder Cosmetics, file no. C-220/98).
It will be interesting to see what approach will be taken by the German court that made the referral for the preliminary ruling and will have to deal with the “raspberry and vanilla” sensation once again…
File no.: judgment of CJEU (Ninth Chamber) of 4 June 2015 in the case no. C-195/14