Food Law: Using awareness to advertise with assumptions and emotions

What do you eat? Where do you buy it? Where is it from? How much do you throw away? Think for a moment on these questions and then take a second to feel the following words: sustainable, ecological, regional, national, traditional, natural. Did you have any reaction to them, any associations – a picture, a memory, a taste?

With global warming, rising energy and production costs, supply shortages of raw materials and pollution being constant topics in politics and society, most of us have developed a keen awareness of these topics and the listed claims. Words like "sustainable", "environmentally friendly" and "regional" may trigger emotions that influence our day-to-day life, our consumption behaviour, and thus the food we choose. Naturally, these words are being heavily exploited in advertising.

What specific messages do they convey to the consumer? Does every consumer picture the same benefit? What are these claims based on?

For example, "sustainable food" is arguably a product of sustainable agriculture, taking into account soil regeneration, reduced greenhouse emissions, conserved water resources, etc. An Austrian court, however, decided years ago that consumers did not go so far as to consider soil regeneration, reduction of emissions and so on. Consumers simply believed that "sustainable" meant "organic". Although this decision can hardly be upheld today (or at least it should not), this understanding is not uncommon among European countries.

A vertical garden uses at least 90 % less space and water to produce lettuce, for example, than does conventional gardening. While this is by all means "sustainable", does it mean that conventional agriculture can no longer be "sustainable" because the bar has been set so high? What about other products, like drinking bottles? Which is more sustainable and eco-friendlier: a glass bottle or a PET-bottle? Glass bottles are heavier, meaning the longer the delivery route, the less eco-friendly they are. Some would argue that reusable PET-bottles are altogether eco-friendlier than glass bottles, even though plastic products are a large contributor to pollution.

These are just a few examples out of many, all of them emotionally charged, all something consumers look for without really knowing what they mean, most not legally regulated.

Businesses and legal advisors face great difficulties when evaluating such advertising. For most of these claims there are no specific (legally binding) definitions and/or guidelines in European Food and Packaging Law, which means that general food law and unfair competition rules apply, national practices must be observed, and the compliance of claims is evaluated on a case-by-case basis. When it comes to national provisions and practices, there are again manifold aspects to be considered.

Below is an overview of the legal status quo of some claims for foodstuff in nine European countries. Get an overview if and what exists (at least partially) in your country: legal (binding) definition, jurisprudence, or soft law (e.g. guidelines, official position by competent authorities) for claims.

Bulgaria: According to the Bulgarian Competition Protection Commission and the Bulgarian Supreme Administrative Court, "100 % natural" is a synonym for "organic"/"biological" (as defined by EU law). Also, the Bulgarian Foodstuff Act recognises the designation "produced in Bulgaria" / "product of Bulgaria", which can be placed on primary products that are produced, extracted or raised on the territory of Bulgaria. There is nothing specific on "sustainability"/"eco-friendly" and food, but there is case law related to the implementation of Reg (EC) No 834/2007 and Reg (EU) No 1307/2013 that links "climate friendly" (within the meaning of cultivation/production methods) to "Green Direct Payments", the EU payment scheme for agricultural practices that are climate and environment friendly. 

Czech Republic: Czech food law does not define "natural". Nevertheless, it explicitly prohibits the use of the claim "natural", unless it is either part of the legal name of the food (e.g. natural mineral water) or where its use can be justified without misleading the consumer. There are specific rules for the use of claims like "Czech food" and "made in the Czech Republic" or graphic depictions of the Czech flag. There is no legal definition of "regional", but there is a "regional food" logo that can be granted by the Ministry of Agriculture to food products made from local ingredients linked to a particular region, e.g. by traditional manner of production. 

Hungary: The Parliament adopted a National Sustainability Framework Strategy, which regulates its legislative activities for sustainability and defines the word "sustainability". It means that the generation that creates its own well-being at a given moment in time does not exhaust its resources but preserves and expands them in sufficient quantity and quality for future generations. There seems to be much room for interpretation.

Moldova: Moldovan law defines "ecologic food product" and indicates that the term is synonymous with "biologic" and "organic". 

Poland: Food can be a cultural heritage and should therefore be protected. Naturally, it must meet high criteria, one of which is that the production methods must have been used at least 25 years to be considered "traditional". Naturally, there are also rules on using claims like "Polish product". A general rule for processed products is that at least 75 % of the raw materials must be produced in Poland. Although there is no legally binding definition for "natural", according to Polish soft law a "natural" product is one made in a simple way (including by pressing, drying, smoking, marinating, etc.) from natural and low-processed ingredients. Similar terms to natural are also "homemade", "grandma's", etc.

Romania: There is no legal definition of "sustainability" or "climate friendly" in connection with food products or packages. Usually, these claims are associated with "organic" or "biological". Under the Draft of the Circular Economy Strategy proposed by the Romanian Government in 2022, sustainability of products is encouraged, but only with respect to food waste or reducing food losses. Naturally, there are rules on "Romanian products"; but there is no single general legal definition for "natural". Product-specific legal definitions exist, e.g. milk. According to Romanian case law, as a general term "natural" may be used if the product has not been filtered or subjected to technological processes and no other food additives have been added. The authorities' view is that the term "natural" should be interpreted based on the dictionary definition, meaning coming directly from nature, without being processed. This is currently a debatable topic.

Slovakia: The term "regional" is defined, but "national" is not. However, there are definitions for "Slovak food" and "produced in Slovakia". 

Slovenia: The Slovenian Agriculture Act sets out definitions for "designation of origin" and "geographical indication" for products that are from specific places, regions or, in exceptional cases, countries. Those labels are granted based on the submission for protection of the product in accordance with the Rules on quality schemes for agricultural products and foodstuffs.

In the absence of clear regulations, it is at the discretion of the advertising entities to decide what meaning a given claim has, to communicate that meaning clearly and to be able to substantiate it.

This overview has been compiled by Iliyana Sirakova, Elena Todorova, Monika Voldanova, Akos Kovacs, Vladimir Iurkovski, Andrian Guzun, Paulina Klimek-Woźniak, Georgiana Vlădescu; Oana Constantinescu, Peter Devinsky and Manja Hubman.