The European Commission published on 24 June the results of a pan-European testing campaign of food products showing that some products are identically or similarly branded while having a different composition.
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What is the issue with dual food quality in different Member States?
Consumers from a number of EU countries have complained that the composition of certain products, such as soft drinks, coffee or fish fingers, is different in their home country when compared to products sold under the same brand and with the same or very similar packaging in other Member States. Comparative tests indicated that on the EU market there are products which are presented to consumers in the same way but contain for example a different content of meat or fish, a greater fat content or a different type of sweetener in some Member States than in others.
That is why, in his 2017 State of the Union address, President Juncker committed to tackling this issue.
Is it legal to market a product with the same or similar packaging with different ingredients?
Under EU law and Single Market principles, traders are free to differentiate their products for different markets. However, consumers cannot be misled by different products being presented to them as identical in the absence of legitimate and objective reasons.
The new provision on dual quality under the New Deal for Consumers clarifies that misleading consumers in respect to product composition may, following a case-by-case assessment by the competent authorities, be considered as an unfair commercial practice that is prohibited by EU law. At the same time, the new provision recognises that traders can adapt goods of the same brand for different geographical markets due to legitimate and objective factors.
Furthermore, ensuring that consumers are informed about product differentiations is also in the interest of the producers. Only when consumers are duly informed they can understand and value, when making their purchasing decisions, that products have been reformulated to be, for example, more healthy or to contain local ingredients.
Does the survey reveal any patterns across Europe in product differences?
No consistent pattern of regional differentiation of products was observed in this survey.
What has the Commission done to tackle the dual quality of food issue?
In September 2017, the Commission issued guidelines on the application of EU food and consumer laws to dual quality products to help national authorities to determine whether a company is breaking EU laws when selling seemingly identical products with a different composition in different countries.
The Commission also presented a legislative proposal to further clarify the application of the Unfair Commercial Practices Directive to dual quality cases under its New Deal for Consumers package in April 2018. These rules, recently agreed by the European Parliament and the Council, make it explicit that the marketing of goods as having the same composition across the EU, while this is in fact not true, may constitute a misleading commercial practice contrary to this Directive. Companies can still market and sell goods of the same brand with different composition or characteristics in different geographical markets when this is justified by legitimate and objective factors, such as national legislation, availability or seasonality of raw materials or voluntary strategies to improve access to healthy and nutritious food.
In parallel, the Commission’s Joint Research Centre, with the support of more than half of the EU Member States and a wide range of stakeholders’ organisations, developed a common methodology for testingand coordinated a pan-European testing campaign focussed on food products, the results of which have been released today.
How much funding has the Commission given to tackle the issue of dual food quality?
The European Commission has made around 4.6 million available to better understand the scale of the dual quality issue and to support consumer authorities and consumer organisations in tackling it effectively:
| Amount | Source | Description and state of play |
| 1,000,000 | Consumer Programme 2017 | Development and implementation of a common testing methodology by the Commission’s Joint Research Centre, in close collaboration with all stakeholders concerned. The methodology was presented in April 2018 and has been implemented in an EU-wide testing campaign in which 19 Member States participated. The results have been published today. |
| 1,000,000 | Consumer Programme 2017 | Action Grants to co-fund further testing and the development of enforcement capacities in the Member States. |
| 1,430,000 | European Parliament Pilot Project | The Commission is currently implementing this Pilot Project to examine the economic rationale behind product differentiations and their impact on consumers. |
| 1,260,000 | European Parliament Pilot Project | This Pilot Project aims at strengthening consumer organisations’ capacities to test and compare consumer products and to identify potentially misleading strategies or misleading information provided on the packaging. A corresponding call for proposal has been published today and the deadline for applications is 6 November 2019. |
How will the New Deal for Consumers help in tackling dual food quality issues?
The EU has some of the strongest consumer protection rules in the world.
In April 2018, the Commission proposed the New Deal for Consumers legislative package to improve the enforcement and to modernise of EU consumer protection rules and open the possibility for EU representative actions.
The Directive on better enforcement and modernisation was provisionally agreed by the European Parliament and the Council in April 2019 and includes a specific amendment to the Unfair Commercial Practices Directive dealing with dual quality of goods. It specifies that the marketing of a good, in one Member State, as being identical to a good marketed in other Member States, while that good has significantly different composition or characteristics, can constitute a misleading commercial practice on the basis of a case-by-case assessment, unless justified by legitimate and objective factors. Formal adoption of the new rules is expected by the end of the year.
Other important provisions of the draft Directive on better enforcement and modernisation include stronger powers for the enforcement authorities to impose deterrent sanctions for widespread infringements that are subject to EU coordinated enforcement actions and stronger rights for consumers to compensation and other remedies when they are victims
The national authorities and courts in the EU countries will enforce the new rules on dual quality adopted under the New Deal. This is the same way EU consumer law is enforced today. The European Commission does not have powers to intervene in concrete disputes between traders and consumers.
What are the next steps?
The Commission will continue to support Member States in their dual quality investigations under the existing legal framework and the results of today’ study can serve as input for national authorities.
The Commission will also facilitate the work of the authorities when investigating dual quality cases across borders in the context of the Consumer Protection Cooperation (CPC) Regulation. The revised Regulation, which will become applicable across all Member States as of 17 January 2020, will further facilitate dual quality investigations by granting authorities the power to purchase goods as test purchases and to inspect, disassemble or test products in order to detect infringements and to obtain evidence.
The Commission further supports Member States’ activities to prepare for the new Consumer Protection Cooperation Regulation by granting 1 million of co-funding also under the 2019 Consumer Programme. In addition, with today’s call for proposals, the Commission empowers consumer organisations to develop capacities to test and compare products and to identify potentially misleading branding strategies or misleading information provided on the packaging.
How was the testing methodology established?
The Joint Research Centre developed the methodology with the support of other Commission services and representatives of stakeholders of the food chain. This included each Member State’s authorities and associations representing the food and retailing industry, as well as consumer organisations.
National authorities were invited to collect data on selected products to be analysed in the EU wide testing campaign. This selection was mainly based on the outcome of previous national surveys, and as such included the products of highest concern for the public in various Member States.
How many products did the Joint Research Centre test?
Data on 128 products were collected in a cross-section of EU Member States. In total, information from 1380 samples formed the basis of the evaluation.
The products, although carefully selected to represent an average shopping basket, are not representative of the vast diversity of food products on the EU market.
The products were neither analysed in laboratories nor tasted by trained sensory assessors. Only the information provided on the product labels the nutrition declaration and the ingredient list and the front-of-pack appearance were used for comparing the same product across different Member States.
Was the industry consulted during the testing?
Brand owners were contacted and invited to comment on the findings of the survey. Their comments and explanations were included in the report.
The annex to the report contains all data collected for each product and next to this also the comments and explanations of the brand owners.
Are you going to continue the testing?
Member State authorities can now use the methodology developed and validated by the Joint Research Centre and used for this testing campaign to continue testing products on their markets with a view to obtaining harmonised and scientifically sound results. To cover the cost of such tests, Member States can apply for the grants under the relevant call launched today by the Commission.
What are the next steps in researching dual quality foods?
The Joint Research Centre is also looking into the question of dual quality from the perspective of consumer’s perception, as well as producers’ economic considerations behind differentiation. These wide ranging research activities are at an early stage. If the eventual findings prove to be conclusive, the Joint Research Centre, in its role of supporting Member State authorities with scientific evidence, will share with them the results to support their market surveillance and enforcement activities.
Source: European Commission
