Publication date: November 14, 2024
Article 45 paragraph 2 of Regulation (EC) No. 178/2002 of the European Parliament and of the Council of 28 January 2002 (OJ EU L. of 2002 No. 31, p. 1, as amended) in addition to the type of information included in the scope of labelling also specifies the media on which this information is provided. It includes both information media that are physically connected with the foodstuff (packaging, label, jacket, leaflet, tag, attached documents) and documents related to the product, but not necessarily directly attached to it (e.g. commercial documents, product specifications transferred in the course of trade between entrepreneurs). Such a broad scope of labelling differs from the traditionally understood labelling of goods, which covers only the information placed on the product itself, its packaging or label. Therefore, product labelling means any action, connection of a given information medium, e.g. a label with a product or service, as a result of which a physical connection is established between the specific medium and the product”. [1]
In addition, food information must be accurate, clear and easy to understand for the consumer, in accordance with Article 7 paragraph 2 of Regulation No. 1169/2011 of 25 October 2011 (OJ EU. L. of 2011, No. 304, p. 18, as amended). Food information must not be misleading, in particular as to the characteristics of a food, in particular its nature, identity, properties, composition, quantity, durability, country or place of origin, methods of manufacture or production.
The Regulation does not provide for a definition of misleading, however, using the Polish Act of 23 August 2007 on Counteracting Unfair Market Practices (Journal of Laws of 2023, item 845), pursuant to Art. 5 sec. 1 “A market practice shall be deemed to be misleading if this action in any way causes or may cause the average consumer to take a decision concerning the contract that he would not have taken otherwise.”
This means that the error must be material, i.e. the message must be capable of directing consumers’ market behavior . If the message is misleading but does not affect the decision to purchase the product, this circumstance should not be classified as misleading (Judgment of the Voivodeship Administrative Court in Kraków of 15 January 2020, III SA/Kr 1196/19, LEX No. 2773908).
The basic principle of determining the entity responsible for food labelling is set out in Article 8(1) of Regulation No. 1169/2011. According to it, for products manufactured in the European Union, the responsible entity is “the entity under whose name or company name a given food is placed on the market”, while for products manufactured outside the European Union and placed on the market in the Union, the responsible entity is the entity under whose name or company name a given food is placed on the market, unless it does not operate in the Union. In such a case, the importer becomes responsible for labelling. As it results from this provision, the entity responsible for labelling food placed on the market in the European Union can only be an entity registered in one of the EU Member States. In other words, entities whose activity is not registered in the Union are not considered responsible, nor – as follows from Article 9(1)(h) – indicating their name or company name and address is not sufficient to meet the information requirements.[2]
In addition, Article 8(3) states that: “Food business operators who have no influence on food information shall not supply food that they know or suspect, on the basis of information in their professional capacity, to be non-compliant with the applicable food information law and with the requirements of relevant national provisions”. It follows from this that sellers who have no influence on labelling are only liable for irregularities that they know or can reasonably suspect, taking into account the information available to them as food business professionals. Similarly, Article 8(4), second sentence, of Regulation No 1169/2011 states that: “Food business operators shall be responsible for any changes they make to food information accompanying a food”, i.e. only for information over which they have an actual influence.[3]
In Poland, the control bodies on the food market are: the State Sanitary Inspection, the Veterinary Inspection, the State Plant Protection and Seed Inspection, and the Agricultural and Food Quality Inspection. The first three are mainly concerned with examining the fulfilment of health conditions, and the last with commercial quality.
In connection with misleading the consumer, a financial penalty should be expected. In turn, the production or introduction of a food product into circulation that is adulterated under the Act of 25 August 2006 on the safety of food and nutrition (Journal of Laws of 2023, item 1448) is punishable not only by a fine, but also by restriction of liberty or deprivation of liberty.
Fines
Article 40 paragraph 1 point 3 of the Polish Act of 21 December 2000 on the commercial quality of agricultural and food products (consolidated text: Journal of Laws of 2023, item 1980) provides that “anyone who introduces agricultural and food products into circulation that do not correspond to the commercial quality specified in the regulations on commercial quality or declared by the manufacturer in the labelling of these products shall be subject to a fine of up to five times the value of the financial benefit obtained or that could be obtained by introducing these agricultural and food products into circulation, but not less than PLN 500”.
Criminal provisions
The provisions of Section VIII, Chapter 1 (Article 96–102 of the Food and Nutrition Safety Act )[4] are of a criminal law nature. Taking into account Article 7 of the Act of 6 June 1997 – the Penal Code (Act of 6 June 1997, Journal of Laws of 2024, item 17, as amended), it should be stated that the acts typified in Articles 96–99 of the Food and Nutrition Safety Act constitute crimes (misdemeanours), while the acts indicated in Article 100 are petty offences. Criminal liability is borne – as a rule – only by natural persons. This means that criminal liability under the Act may be borne, for example, by persons managing the enterprise, managers, production managers, persons performing other functions in the food enterprise, and not the entrepreneur himself (a legal person or a defective legal person).
In addition, the following types of foreseen sanctions can be indicated: supervisory measures implemented within the powers of the authorities – such as:
– an order to withdraw food from the market,
– authorisation to use food for other purposes,
– introduction of sanitary procedures,
– suspension or closure of the business activity,
– withdrawal of approval previously granted to the entrepreneur
[sanctions resulting from Regulation No. 2017/625 (OJ EU. L. of 2017, No. 95, p. 1, as amended)],– and financial penalties indicated in Articles 103–104 of the Polish Act on Food Safety.
In the case law of administrative courts, it was indicated that art. 103 on Food Safety as a rule obliges the authority to impose a fine for the mere fact of violating the requirements specified in the provisions contained therein. The Supreme Administrative Court indicated in particular that:
“Art. 103 sec. 1 item 1 as a rule obliges the authority to impose a fine for the mere fact of violating the requirements specified in the provisions listed therein”. In accordance with the above, the optionality of the application of the sanctions provided for in the commented act is excluded. Fines – pursuant to art. 104 on Food Safety – are imposed on the basis of administrative discretion. The authority should therefore determine whether in a specific case there are any circumstances justifying the imposition of a fine, and then consider the circumstances of the case in terms of the grounds for imposing a fine.
Other penal measures
In the judgment of the Regional Administrative Court in Warsaw of 26 January 2017, (case number: VI SA/ Wa 783/16), the body issued post-inspection recommendations in which it ordered the removal of irregularities found during the inspection. Then, in the decision, it ordered the complainant to subject the product manufactured by the complainant to a procedure of proper labelling consisting in providing information on storage conditions directly after the information “Best before” and precede the list of ingredients with the word “Ingredients” or a phrase containing this word.
In accordance with art. 29 sec. 1 of the Act on the commercial quality of agricultural and food products, when performing the tasks referred to in art. 17 sec. 1 item 1 letters a and e.g., the provincial inspector, by way of a decision, may:
1) prohibit the introduction into circulation of an agricultural and food product that does not meet the requirements of commercial quality or transport or storage requirements;
2) order that the agricultural and food product referred to in point 1 be subjected to specific treatments;
3) prohibit the storage of agricultural and food products in inappropriate conditions or their transport using means of transport unsuitable for this purpose;
4) reclassify an agricultural and food product to a lower class if the product does not meet the quality requirements for a given commercial quality class;
5) order the destruction of the agricultural and food product referred to in point 1 at the expense of its holder.
The court found that this measure is one of the milder ones provided for in the cited provision, as it does not exclude the product from circulation, after correct labelling the product may be introduced to the market. It is also adequate to the identified infringement and ensures its effective removal. The court took a similar position in the judgment of the Voivodship Administrative Court in Warsaw of 26 January 2017, (case number: VI SA/ Wa 790/16), assuming that “the administrative body, having found the described irregularities, ordered the inspected food product to undergo the procedure of correct labelling. […] the penal measure applied by the body is fully adequate to the identified infringement.”
What if the list of ingredients includes an ingredient that is not approved for sale in the EU but is not actually present in the product?
The list of ingredients should be sufficient to correct any less precise messages included in the labelling of a food. One element of this assessment should be the extent to which the list of ingredients is formulated in a way that allows familiarisation with the real nature and properties of the product, and also the extent to which they are understandable to the average consumer against the background of other less precise messages included in the labelling. The subject of the assessment of misleading the consumer is not the intentions of the entity responsible for the labelling, but the effect of the labelling that it has on the average consumer.[5]
The Food and Nutrition Safety Act defines the concept of adulterated food (Article 3, paragraph 3, point 45).
An adulterated food is one whose composition or other properties have been changed and the consumer has not been properly informed about this, or a food in which changes have been made to conceal its actual composition or other properties. A food is adulterated, in particular if:
– influencing the safety of foodstuffs through these activities.
As indicated in the introduction, a food is not considered adulterated if the consumer has been duly informed about the change in the composition or properties of the food. Furthermore, the offences specified in Article 97 paragraphs 1-2 may only be committed intentionally.[6]
The presented problem should also be viewed from the perspective of the food composition itself. The ban on introducing non-compliant foodstuffs into circulation is regulated in Article 6 of the Food and Drug Administration Act:
2. Foodstuffs that do not meet the requirements specified in the provisions of this section that do not implement European Union directives may not be placed on the market in the territory of the Republic of Poland.
3. Foodstuffs that do not meet the requirements referred to in paragraph 2 shall be permitted for circulation in the territory of the Republic of Poland if they have been:
1) manufactured or placed on the market in another Member State of the European Union, in accordance with the law of that country, or
2) produced in a Member State of the European Free Trade Agreement (EFTA) that is a party to the Agreement on the European Economic Area, or produced or placed on the market in the Republic of Turkey, in accordance with the law of these countries, to the extent that they benefit from the free movement of goods under agreements concluded with the European Community
– provided that they do not pose a threat to human health or life.
4. In the event of a reasonable suspicion that the foodstuff referred to in par. 3 may pose a threat to human health or life, the competent official food control authority shall request the food business operator to provide, within a specified period, information confirming compliance with equivalent health requirements, including documents issued by the competent authorities of the country of origin.
As stated in paragraph 4, the situation of an error in the labelling of ingredients may be resolved by the responsible entity providing information confirming that the composition of the product complies with the requirements in force in the European Union.
[1] R. Skubisz (in:) The Act on Combating…, p. 717. See also R. Stefanicki, The Act on Combating Unfair Market Practices, Warsaw 2009, p. 199.
[2] A. Szymecka-Wesołowska [in:] K. Jędrych, P. Szczypkowska, A. Szymecka-Wesołowska, Labeling, presentation, advertising of food. Commentary to Regulation (EU) No 1169/2011 of the European Parliament and of the Council, Warsaw 2018, art. 8.
[3] A. Szymecka-Wesołowska, Liability for incorrect labelling of foodstuffs. Commentary on the judgment of the Court of Justice of the European Union of 23 November 2006, C-315/05, LEX/el. 2016.
[4] Act of 25 August 2006 on food and nutrition safety (consolidated text: Journal of Laws of 2023, item 1448).
[5] A. Szymecka-Wesołowska, Misleading consumers by labeling a food product containing images or descriptions of ingredients that do not occur in the product in their pure form but bear their flavor. LEX/el. 2015.
[6] C. Kąkol, “Criminal law aspects of the act on food and nutrition safety.”Prokuratura i Prawo” 7-8 (2010), p. 316.