The trend towards nature-related advertisements continues unabated.
Since the European Court of Justice has considered the German prohibition - set out in § 17 para 1 no. 4 LMBG (former Law on Food and Commodity Products) - for advertising products with the term "all-natural" and similar terms to be against the Community Law (ECJ, judgement dated 4 April 2000, case C-465/98), foods and their ingredients contained therein are now increasingly advertised as being "natural".
But what does this mean to consumers and what is the legal stance on such definitions?
Two thirds of consumers believe that the term "nature" stands for health and quality of life, and that those who eat healthier food are healthier. On the other hand, one third of consumers are rather sceptical in relation to the use of nature-related information on food packaging (source: Mintel group Ltd., 2012).
They have good reason to be. Nature-related advertisements have great potential for confusion, particularly if they relate to industrially produced products or ingredients. The consumer regularly connects the term "natural" with a certain "naturalness" of the labelled goods; whereas such a naturalness results either from the manner of how they are produced or from the absence of chemical pollutions (in particular absence of residues).
Legal definitions for "natural"
The few legal norms which define the term "natural" in more detail do allow for the use of this term in relation to products and ingredients.
Appendix I no. 1 of the Directive 2009/54/EC on the production and trade with natural mineral waters, implemented in § 2 of the Mineral and Table Water Ordinance (MTVO).
Article 3 para 2 lit. c), 16 Ordinance (EC) no. 1334/2008 on flavours and certain food ingredients with flavouring properties for use in and at foods.
"Natural mineral water" obtained from underground sources must be different to usual drinking water because of its "original purity". A general absence of pollutants is not required.
This does not necessarily mean that mineral water must be protected from any kind of pollution in order for it to be "natural". Rather, the Administrative High Court of Baden-Württemberg acknowledged in its decision of 20 June 2013 (docket no: 9 S 2883/11) that not every anthropogenic input shall be seen as pollution.
The Senate points out that the public assumes mineral water needs to meet certain purity requirements that are already given by nature, even if they do not know these purity requirements in particular.
This is why the public does not expect an absolute purity. The public has gained practical knowledge and therefore knows that pollutants can be found almost everywhere, including in such food which carries the purity designation "natural" or "bio" (German Federal Court of Justice, judgement dated 13 September 2012, docket no. I ZR 230/11 - Bio-Mineralwasser).
In a similar judgment, the ECJ has already demanded that food designated with "allnature" shall not contain an increased degree of residues of pollutants or impure substances.
According to the established case law of the Federal Court of Justice, the title "all-nature" neither presupposes a complete absence of anthropogenic substances in food, nor the detection of the same in trace amounts.
There are legal requirements concerning the "naturalness" in the field of ingredients which do, however, only apply for "flavours".
Flavouring agents as well as flavour extracts can be designated with the term "natural" i.e. either chemically defined substances or concentrated flavoured products that occur in nature or can be found there and were obtained by "appropriate" physical, enzymatic or microbiological processes or common food preparation processes.
Changes to the chemical properties of flavours are not "natural" anymore
This excludes the distillation or extraction with solvents, but includes, among other things drying, roasting, emulsifying or freezing (cf. Appendix II of the Regulation (EC) no. 1334/2008).
The flavour may always be designated as "natural" if it originates from a preparation in the kitchen. The border to "naturalness" is inter alia exceeded if an "appropriate physical process" is not used any longer to produce the flavour.
From the viewpoint of the legislator, this includes a physical process during which the chemical properties of the flavour components are deliberately changed or where singlet oxygen, ozone, an organic catalysts, metal catalysts, metal organic reagents and/or UV rays are being used (cf. article 3 para. 3 lit. k) Regulation (EC) no. 1334/2008).
If a flavour is produced chemically, it no longer deserves the designation "natural".
Such processes cause changes to the stereochemistry of the respective substance. The legislator leaves open when a microbiological, resp. enzymatic process is no longer considered as "appropriate".
The case-law has not yet discussed in detail whether or not using genetically modified microorganism in the production of flavours is seen as a production process that would allow for the respective product to be promoted as"natural".
No "natural" production processes for flavours
- Chemical synthesis/isolation through chemical processes
- Physical processes involving deliberate changes to the flavour components though the use of:
- singlet oxygen,
- an organic catalysts,
- metal catalysts,
- metal organic reagents
- UV rays
The use of the term "natural" in connection with a reference to a specific food (strawberry, raspberry, vanilla etc.) requires that the flavour compound is obtained exclusively from this food or at least by 95 % by weight (article 16 para. 4 Regulation (EC) no. 1334/2008).
The term "flavour compound" is however, not defined. It is contested whether this term only relates to the "volatile flavours" as such (this is the opinion of the Appeals Court of Düsseldorf, judgement 31 March 2012, docket no. I-15 U 173/11; as well as the ALS-opinion no. 2012/29) or whether that particular compound of the flavour is concerned which can be separated from the other substances and materials and consists of one or more of the legally defined flavour category (cf. DAIVposition paper; as well as Standing Committee on the Food Chain and Animal Health, Section Toxicological Safety of the Food Chain, meeting on 31 January 2013).
If a strawberry extract contains too many foreign substances, since the calculation of 95% by weight is based on the volatile flavours but not on the flavour extract itself, it would be confusing to designate it with "natural strawberry flavour" according to § 11 para 1 clause 2 no. 1 LFGB (German Food and Feed Code) resp. §§ 3, 5 UWG (Unfair competition Act).
It could at best be designated with "natural flavour"(with strawberry taste).
Greater differentiation with other ingredients
The principles on "nature advertisements" stated in the flavour laws are not analogously used for the assessment of a nature-related advertising of other ingredients including additives such as sweeteners or artificial colours.
In its judgement of 29 August 2013, docket no. 3 U 12/12 relating to the advertisement of baby food with reference, interalia, to "natural lactic acid cultures", the Appeals Court of Hamburg has set out the following:
The consumer would only deem a substance as "natural" if it had been obtained from nature as it is used in the product rather than previously processing it in a laboratory where the bio chemical, resp. genetic condition of the substance was modified through an enzymatic selection process.
In view of flavouring agents, the consumer is aware that these substances necessarily relate to such which still need to be "extracted" from the starting product. Corresponding processing steps are necessary.
The adjective "natural" does therefore not stand for the absence of such processing steps but only indicates the naturalness of the starting product. The German Food Additives Law differentiates between "natural substances", "substances of natural origin" and substances that are "chemically identical" to natural ones (cf. § 2 para. 3 clause 2 no. 1 LFGB).
This indicates that a differentiated assessment in view of "nature-related advertisements" must be made for substances other than flavours.
This is why the watery extract obtained from the leaves of the stevia plant - which is further purified, concentrated, dried, dissolved again and crystallized (cf. Regulation (EU) 231/2012 of E 960) - cannot be designated as "natural sweetener" anymore.
A product sweetened with it shall not be advertised as "sweetened with natural ingredients" (cf. recommendations of the Belgian and Austrian Ministry of Health; ALS, opinion no. 2012/41).
Subtleties of the chosen formulation may exclude confusions about other ingredients.
However, formulations such as "sweeteners of natural origin", "sweet taste from a natural source (purified Stevia-extract)" or "steviol glycoside are naturally contained in the leaves of the stevia plant" (cf. guidelines of Food Drink Europe or the International Stevia Council), are allowed.
Admissible advertising information for steviol glycoside (E 960):
- sweeteners of natural origin
- sweeteners from a natural source
- sweet taste from a natural source
- with sweeteners (extract resp. extracted) from the stevia-plant
- steviol glycoside are naturally contained in the leaves of the stevia plant
- "steviol glycoside (sweeteners) from the stevia plant (from stevia leaves)"
- "steviol glycoside (sweeteners) from natural source"
Inadmissible advertising information for steviol glycoside (E 960):
- with stevia
- with stevia-extracts
- with natural sweeteners
- naturally sweet taste (in relation to the product sweetened with stevio glycosides)
- sweetened with natural sweetener
The European trade association the Natural Food Colours Association suggests using similar differentiating formulations when colouring agents are advertised (accessible with further details at www.natcol.org).
Depending on the used processing method, colouring agents may either be designated as of:
- "natural origin" (provided that the colour pigments as such are not modified); or
- an "origin derived from nature" (provided the colour pigments as such remain unmodified whereas the rest of the molecule is marginally modified, e.g. through de-esterification)
- "nature-identical" (provided the colouring agent was produced through chemical synthesis).
The differentiation criteria can also be transferred to so-called colouring foods which are subject to similar production and processing steps. Said colouring foods can only be designated as "natural" without restriction if they are obtained exclusively through a mechanical treatment (e.g. red beet juice, spinach puree, curcuma powder).
The Regulation (EC) no. 1924/2006 allows for a different kind of nature-related advertisement with regards to nutrient-related information (e.g. fat-free, low in sugar, rich in vitamins) if the food designated therewith does already, by nature, fulfil the relevant criteria of the appendix of the regulation. In this case it is allowed to advise the consumer that the relevant product is, for instance, a "natural vitamin C source".
When advertising ingredients or industrially produced foods as "natural" everyone who observes the rules does not need to fear complaints about confusing advertisements. The chosen formulation for "nature-related advertisements" may, in some cases, make a decisive difference.
A detailed description of each ingredient or supplemental explanations about their concrete production may also reduce or completely exclude the risk of confusion (cf. Düsseldorf, judgement of 19 February 2013, I-20 U 59/12 - Rasperry-Vanilla-Adventure). In this sense, it can be said "back to nature" again.
This article was first published in Food & Recht Praxis 1/2014, pages 14 to 16.