On 6/24/19, the European Commission published the results of an initial analysis on the Dual Quality Food phenomenon. That is, reputable food products sold in different EU countries with identical appearance but different qualities. The analysis considered 128 products marketed in 19 EU countries, 1,380 references in all.
Dual Quality Food, the problem
The Dual Quality Food (or Dual Food Quality) phenomenon concerns those food products that are presented in identical ways except revealing different, often inferior, qualities in versions destined for certain EU member countries. The issue has been denounced several times over the years by consumer associations and authorities in the Visegrád Group (Poland, Czech Republic, Slovakia and Hungary).
The difference in quality was mostly found on the products of the second industrial processing, with various famous brands often traceable to Big Food. (1) From candy to soft drinks, frozen products and more. Seemingly identical brands and packaging, more or less different recipes. Lower shares of valuable characteristic ingredients, even significant changes in nutritional profiles.
Romania, Croatia and Slovenia had then joined the Visegrád Group, and Hungary, in 2017, notified Brussels of a special bill. Aimed at assigning specific investigative tasks on these issues to the authorities in charge of official public supervision. A strong political gesture, which actually drew the attention of European Commission President Jean-Caude Junker.
On 20.5.19, the Czech government in turn declared its willingness to introduce sanctions of up to 50 million euros, against food and distribution operators, if national control authorities find cases of dual quality foods. However, such measures must be notified in advance to the European Commission, according to dir. 2015/1535/EU. Brussels may declare it incompatible with the ongoing reform of the Unfair Commercial Practices Directive (see next paragraph). Nonetheless, this initiative helps to keep vigilant attention on the phenomenon under consideration.
Dual Quality Food, rules in place and in the making
In general, economic operators are free to differentiate the characteristics of goods and services in relation to different markets. However, it is legitimate to expect-in the ‘Internal Market,’ precisely-that consumers will at the very least be informed, when a product presented in such a manner is instead different from one country to another. All the more so where variations affect not quantity and quality of ingredients, that is, nutritional profiles.
Thus, in the absence of legitimate and objective reasons, it is not possible to present different products to consumers as identical, as such conduct amounts to misleading the consumer about the qualities of the product. Any conduct capable of misleading consumers about the composition and quality of products is indeed a practice already prohibited by no less than three European regulations. General Food Law, Food Information Regulation, Unfair Commercial Practices. (2)
Moreover, the European Commission has devoted special consideration to this issue as part of the New Deal for Consumers. A group of measures presented on 11.4.18 to update EU legislation on weak contractor protection. (3) These include the amendment of the Unfair Commercial Practices Directive, which is expected to be formally adopted by the end of 2019 following agreement reached last months with the European Parliament and the Council. (4) The new text complements the Unfair Commercial Practices Directive (UCPT) in Article 6.2, in particular, specifying the following.
‘A commercial practice involving the marketing of a product as identical to the same product marketed in several other member states while they have significantly different composition or characteristics, and which induces or is likely to induce the average consumer to take a transactional decision that he or she would not otherwise have taken, is a misleading commercial practice that competent authorities should assess and deal with on a case-by-case basis in accordance with the provisions of the Directive’. (5)
‘Thanks to this agreement, the practice of double standards in the single market has its days numbered. Consumers should no longer be misled by different products being presented as identical. Merchants who continue to cheat will face serious penalties. (Věra Jourová, outgoing Commissioner for Justice, Consumers and Gender Equality. See footnote 6)
Dual Food Quality, the European Commission’s first ‘test campaign’
The European Commission published on June 24 the results of a ‘test campaign’ carried out between November and December 2018 on 128 products — 113 branded and 15 private label products — marketed in 19 member states, 1380 references in all. (7) Based on suggestions from member states, following complaints from authorities and/or consumer protection associations. The study, coordinated by the Commission’sJoint Research Centre (JRC), used a harmonized method for data sampling, analysis and interpretation. (8)
The results show that 9 percent of products presented as identical in different EU countries have different composition. An additional 22% of the products are similarly presented while having a different composition. In 27% of cases, the different composition was indicated through a different presentation on the front of the package. In 23% of cases what is stated on the front of the label actually coincides with the composition of the product. And only 19% of the references are identical in different countries.
However, Brussels’ conclusions do not appear consistent with the outcome of the test. The Commission deduces the non-existence of a ‘double standard’ which, on the basis of the above, is instead evident. Beyond the reported circumstances that differences in food composition do not in themselves imply a difference in quality, and a difference between East and West cannot be inferred. Conversely, it is safe to suspect that the ‘test campaign’ offers a superficial and limited representation, the tip of an iceberg of a phenomenon certainly worthy of further investigation. Which should consider not only the ‘composition’-in terms of the name and quantity of the ingredients-but also the actual quality, origin and value of the raw materials used. As well as the food technologies adopted and the amounts of any additives used.
Dario Dongo and Giulia Torre
Notes
(1) Ferrero was also cited among the industrial giants suspected of ‘dual quality,’ including in the Financial Times.
(2) See reg. EC 178/02, art. 16. Reg. EU 1169/11, Art. 7. Dir. 2005/29/EC, Article 6.
(3) European Commission, press release 11.4.18, http://europa.eu/rapid/press-release_IP-18-3041_it.htm
(4) See dir. 2005/29/EC ‘Amending Council Directive 93/13/EEC of April 5, 1993, Directive 98/6/EC of the European Parliament and of the Council, Directive 2005/29/EC of the European Parliament and of the Council, and Directive 2011/83/EU of the European Parliament and of the Council for better enforcement and modernization of EU consumer protection rules’
(5) Brussels, 11.4.2018 COM(2018) 185 final https://eur-lex.europa.eu/legal-content/IT/TXT/PDF/?uri=CELEX:52018PC0185&from=EN
(6) EU Commission press release http://europa.eu/rapid/press-release_IP-18-3041_it.html
(7) The participating states are Bulgaria, Cyprus, Croatia, Denmark, Estonia, France, Germany, Greece, Hungary, Italy, Latvia, Lithuania, Malta, the Netherlands, Poland, the Czech Republic, Slovakia, Slovenia, and Spain.
(8) See footnote 6 above
Dario Dongo, lawyer and journalist, PhD in international food law, founder of WIISE (FARE - GIFT - Food Times) and Égalité.
Graduated in law, master in European Food Law, she deals with agro-food, veterinary and agricultural legislation. She is a PhD in agrisystem.
