The EU Court of Justice recently ruled on the online sale of organic food. To which the same rules as for physical retail should apply, excluding exemptions in favor of direct sales.
Ecommerce, the rules to follow in EU
The online sale of food is subject in Europe to the same requirements established for traditional means of sale.
This applies first of all toconsumer information. Where the ‘Food Information Regulation‘ stipulates that mandatory label information-except for that pertaining to the individual sales unit (such as the expiration date, or minimum shelf life, and lot code)-must be made available to the consumer before the choice to purchase. (1)
‘For prepacked foods offered for sale by means of distance communication techniques:
a) mandatory food information (2) is available before the conclusion of the purchase and appears on the medium of distance selling or is provided through any other appropriate means clearly identified by the food business operator. When other appropriate means are used, mandatory food information is provided without the food business operator imposing additional costs on consumers;
b) all mandatory particulars are available at the time of delivery’ (EU reg. 1169/11, art. 14)
Identical rules must also logically apply to the registration, authorization and certification criteria defined for the sale of certain goods. Such as precisely, organic products.
Organic food ecommerce, the German case at the EU Court of Justice
A preliminary question has been referred by the German Federal Court of Justice to the European courts in Luxembourg. Concerning the possibility of exempting online sales of organic food–like some forms of direct sales–from notification and certification requirements.
In fact, European organic rules require even organic food distributors to undergo a special registration and control system. (3) For the specific purpose of preventing possible fraud, which could be accomplished by mixing such products in bulk with conventional commodities.
Member states were able to introduce exceptions to the above obligations, in favor of the ‘Operators who sell products directly to the consumer or end user, provided they do not produce them, prepare them, store them only in connection with the point of sale, or import them from a third country or have not subcontracted these activities to third parties‘. (4) And Germany has indeed made use of this option. (5)
The dispute referred to the EU Court of Justice stems from a warning by the Association to Combat Unfair Competition (6) against an online seller (7) of fireplace and barbecue accessories. Which offered for sale, among other products, a range of organic spice blends(Bio Gewürze). Without being registered or subjected to the relevant organic control system.
Court of Justice verdict, no exemption on ecommerce of organic products
Theescalation of penny-pinching litigation, which stemmed from a 235-euro fine, has led Luxembourg’s law clerks to assess a question of law that affects a billion-dollar business-how much theecommerce of organic products in Europe is worth today. (8)
The issue relates to whether online activity, like other forms of distance sales of organic products, can be equated with direct sales at the place where the products are stored (in the simultaneous presence of the operator, or his sales staff, and the buyer). The only one eligible for exemption from registration requirements and ad hoc control system.
The Luxembourg judges took the most rigorous approach. ‘The application of these requirements seems fully justified in the case of online and distance retailing, as the storage of products, generally in very large quantities, and supply by intermediaries present a risk of relabeling, exchange, and contamination that cannot be considered small overall‘. (9)
Yes to guarantees and controls, no to Far-West.
Dario Dongo
Notes
(1) See reg. EU 1169/11, Article 14
(2) ‘withthe exception of the indications referred to in Article 9(1)(f)‘, i.e. ‘the date of minimum durability or use-by date‘, ed.
(3) See reg. EC 834/07, Article 28.1
(4) Idem c.s., article 28.2
(5) By the law implementing EU legal acts in the field of organic farming(Gesetz zur Durchführung der Rechtsakte der Europäischen Union auf dem Gebiet des ökologischen Landbaus – Öko-Landbaugesetz, Article 3.2)
(6) Zentrale zur Bekämpfung unlauteren Wettbewerbs eV
(7) Kamin und Grill Shop GmbH
(8) Online sales of organic food are now worth about US$39 billion globally, according to IFOAM
(9) Case C-289/16, judgment 12.9.17, at http://eur-lex.europa.eu/legal-content/IT/TXT/?uri=CELEX:62016CJ0289
Dario Dongo, lawyer and journalist, PhD in international food law, founder of WIISE (FARE - GIFT - Food Times) and Égalité.
