TO : Clients and Interested Parties
DATE : 8th December, 2003
RE : European Court of Justice – Case Law Brief
Scherndl (Case C-40/02) 23rd October 2003
ECJ holds that the Nutrition Labelling Directive is interpreted to mean that (1) the value of a nutrient such as vitamin C provided on nutrition labelling may correspond to the value of that nutrient at the end of a foodstuffs minimum conservation period and (2) that Member States are competent to establish tolerance deviations for official control purposes.
Ms Scherndl, the representative of the company Hofer KG, was prosecuted for the marketing of a pineapple juice whose actual vitamin C content differed by some 40% to that declared on the product packaging (an ascorbic acid content of 300 mg/l being declared, the actual level on analysis was in fact 430 mg/l).
As a result, the interpretation of certain provisions of the Nutrition Labelling Directive 90/496/EEC (which had been properly transposed into Austrian law) were referred to the ECJ. In particular, Directive 90/496/EEC provides that the declared value of a nutrient such as vitamin C must be an “average value”, but does not specify:
(1) any form of reference date to which this value must correspond.
(2) permissible tolerance deviations from the declared value.
Essentially, Mrs Scherndl argued that given this lack of specification, it was possible to market a pineapple juice with a higher vitamin C level than stated on the product label, on the basis that this corresponded to the vitamin C value of the product at the end of its “minimum conservation period”, i.e. by the minimum durability date affixed to the label. She argued that:
• Indication of a specific value for a nutrient such as vitamin C applicable to the date of purchase or consumption is not always possible for foodstuffs which have a long conservation period. Indication of the nutritional values of a foodstuff could thus refer to any point in time between sale to the final consumer and the expiry of the product conservation date. As vitamin C content can diminish substantially over time, due to external factors such as air, light and temperature, it was appropriate that the stated value in this case referred to the end of the minimum conservation period.
• In this instance, the level of Vitamin C did not cause hypervitamosis and there was no allegation of any consumer safety risk through an overdose.
The Austrian food control authorities countered this with...