Bibliographical Information of the Deutsche Nationalbibliothek This publication is listed in the Deutsche Nationalbibliographie of the Deutsche Nationalbibliothek; detailed bibliographical information can be accessed under www.dnb.de
© 2020 Jens Karsten LL.M.
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BoD – Books on Demand GmbH, Norderstedt
ISBN: 978-3-7526-3165-4
Consumers around the world often like foods produced and processed the way their grandparents made them – or at least the way they imagine food was made back in the old days. This popularity makes terms like ‘traditional’, ‘artisanal’, ‘farmhouse’, ‘country-style’ or similar powerful marketing tools. The same is the case with terms like ‘natural’, ‘authentic’ and ‘pure’.
It is therefore very tempting to producers to apply these adjectives prolifically to their labelling and advertising in order to draw the consumer’s attention to a food product. At the same time, consumers do not want to be misled about the characteristics of a product and are dismayed at ‘fake news’ around food. To meet these expectations, the law insists that product labels must not be misleading.
In its rules at a more detailed level, however, the law often remains general and therefore vague when it comes to defining what a term like ‘traditional’ or ‘natural’ actually implies in the context of food. In some jurisdictions, guidance is provided by case law, in others by guidelines issued by the government or market surveillance authorities. But because an overall concept is lacking (neither the Codex Alimentarius Commission nor the European Union properly engage with the question of tradition in food) it is the national regulator which has the final say.
The objective of this paper is to present the situation in a number of key jurisdictions in chapters written by experts in the field of food law. Consumers, food business operators (FBOs), authorities and the general public may find it useful to consult this paper to help them understand what ‘tradition’ really means in the vast food sector – which stretches from sales direct from the vegetable patch to multinational food retailing with globally integrated supply chains.
This book is intended to be informational and is not intended to provide legal advice.
All food products sold in Australia and New Zealand are regulated under the Australia New Zealand Food Standards Code (Food Standards Code). Like Codex Alimentarius, the Food Standards Code sets out compositional permissions and limits (through the regulation of substances that may be used in food) as well as requirements as to how food products must be labelled.
The Food Standards Code is enforced through the Food Act of each Australian State and Territory and New Zealand. Regulatory bodies in each jurisdiction (usually the Department of Health) are responsible for ensuring compliance with the Food Standards Code.
The primary focus of these regulatory bodies and the Food Standards Code is product safety. Many of the labelling requirements in the Food Standards Code relate to the provision of mandatory information. Indeed, with the exception of health and nutrition content claims and requirements for some specified product names and representations (such as “butter”, “meat pie” and “bread”), the Food Standards Code is not particularly prescriptive when it comes to the making of voluntary claims.
However, in addition to the Food Standards Code, the Australian Consumer Law1 contains broad prohibitions on conduct that is misleading or deceptive. Section 18 prohibits any person (including a company) from engaging in conduct that is misleading or deceptive or is likely to mislead or deceive. Section 29 prohibits the making of false or misleading representations with respect to a number of matters including product quality and origin.
The Australian Consumer Law is enforced by the Australian Competition and Consumer Commission (ACCC). The ACCC is an active regulator, and has initiated action in relation to many different types of product claims.
Although many of the claims considered in this chapter may not be specifically regulated under the Food Standards Code, they must still not be misleading in breach of the Australian Consumer Law. The ACCC considers such claims to be “premium” claims that are often used to justify a higher price point when compared with other products that do not make the same claim. According to the ACCC, it is important to be able to substantiate the claimed difference in order to avoid misleading consumers.
Whether a product claim or a product description is misleading or deceptive is usually assessed by the ACCC or the Federal Court of Australia by the criterion of the expectations of a hypothetical reasonable consumer viewing the claim. If the overall impression of the consumer cannot be substantiated by the food supplier or the retailer, then the claim faces the legal risk of being misleading.
Claims about a product being “traditional”, “artisan” or “craft” are not specifically regulated under the Food Standards Code. Nor have they been the subject of any regulatory guidance or enforcement action by a food regulator or the ACCC.
As such, the primary concern when making such claims is whether they would potentially mislead or deceive consumers in breach of the Australian Consumer Law. A consumer’s expectations might depend on a number of factors including:
Each of these claims might expect a consumer to regard that product as of a higher quality than other products. Consumers might also expect that the products have undergone less processing than other products, do not contain food additives or processing aids that are associated with mass-production, or have undergone a process that otherwise distinguishes them from other products.
As with the claims considered above, there are no specific Australian requirements with respect to “homemade”, “farmhouse” or “country-style” claims.
However, in its 2006 User Guide Food descriptors guideline to the Trade Practices Act2 (the Trade Practices Act is the predecessor to the Australian Consumer Law and maintains the same applicable legal principles) the ACCC lists “Farmhouse” and “Country-style” as examples of puffery. A claim or representation amounts to puffery if it is an introductory statement that would not influence the purchasing decision of a reasonable consumer. As such, a claim that amounts to puffery cannot be misleading or deceptive.
Despite the 2006 User Guide, it is quite possible or probable that consumer expectations will change over time, and it is possible that a claim that amounted to puffery at one time may later take on new meaning and become a misleading claim that consumers have relied upon. A claim may also shift from being puffery to being misleading depending on the context in which it appears. For example, the claim “world’s best” by itself is puffery. However, if the claim was worded “this product has been voted world’s best” or featured imagery or other words that suggested some sort of official status or provable fact, it might well be misleading. There is considerable Australian case law that draws a legal distinction between puffery, which is legally innocuous, and a statement that is capable of being interpreted as a representation of fact that needs to be proven.
In Australia, the concept of “natural” has received considerable recent regulatory and judicial attention as well as examination by industry-based advertising self-regulatory bodies. The Full Court of the Federal Court of Australia considered this issue in Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [2018] FCAFC 93 (22 June 2018), finding that the labelling of a cosmetics range as “Naturals” “was not a representation that the products were made either wholly or substantially from natural ingredients”.
The case was dealing with a cosmetic rather than with a food product, and the Court took a relatively relaxed interpretation of “natural”, finding that a reasonable consumer would not necessarily take this claim to mean that the product consisted entirely or substantially from natural ingredients. This was also influenced by the fact that the product in question was a discount product.
However, the situation appears to be stricter for food products. A 2018 decision the Ad Standards Australia Industry Jury3 found that it was misleading to describe a vanilla paste as natural where most of the vanilla flavour did not come from vanilla bean. The Jury found that the use of the word ‘natural’ created a representation that the products were substantially derived from, or consisted of a substantial proportion of, vanilla beans. The Jury considered that even if the vanilla flavour came from a non-synthetic source (such as pine chips), the word “natural” would still be misleading.
Although the Ad Standards Australia Industry Jury is an industry-based body and its decisions do not carry legal weight, this decision was made by legal professionals applying the same legal principles and legal framework as would be used by the Federal Court of Australia in interpreting a similar factual case.
In the context of food, “natural” can therefore take on a strong meaning. If a natural claim is made with respect to a particular ingredient, that ingredient should be non-synthetic and should come from the source that consumers would expect. A natural claim on behalf of an entire product might create the following expectations, depending on the context of the claim:
It is important to keep in mind that the meaning of “natural” in Australia is determined with reference to consumers. Consumers are often not aware of the technical aspects of food manufacturing and it is important not to adopt an approach that is purely scientific. For example, the International Standards Organisation Standard 19657:2017 provides a definition of “natural” based on technical food manufacturing processes. A consumer would have a very limited understanding of these processes, and so this definition should not automatically be relied on in determining whether a product may claim to be natural.
There is little regulatory guidance with respect to “authentic” claims. By itself, “authentic” may amount to puffery, as a consumer might not take it to refer to any definable characteristic.
If a claim of authenticity is further defined or qualified in anyway (for example, if it is presented alongside a certification or a description of a process), then the claim becomes more concrete and must be able to be substantiated. If the claim cannot be substantiated, then it risks being found to be misleading.
The ACCC regards “pure” as an absolute claim. In its Food descriptors guideline to the Trade Practices Act (referred to above), the ACCC states that “‘Pure’ as a descriptor is similar to a 100 per cent claim, that is the product does not contain any extra ingredients.”
If “pure” is used to describe an ingredient in a product, then that product should not be adulterated or be made up of any additional ingredients or components. A good example was the ACCC enforcement action in 2005 against a fruit juice manufacturer for claiming that its products were “100% Juice” when they contained added Vitamin C.
The ACCC has been active in enforcing “fresh” claims. In its said Food descriptors guideline to the Trade Practices Act, the ACCC provides that:
‘Fresh’ generally refers to food that is put on sale at the earliest possible time and close to the state it would be in at the time of ‘picking’, ‘catching’, producing etc. The term fresh generally implies that food has not been frozen or preserved…
…Generally consumers may understand that a ‘ fresh’ food has not been canned, cured, dehydrated, frozen, processed or preserved. On the other hand, consumers are likely to be aware that milk is a pasteurised product because of the level of disclosure and may still be considered fresh but consumers may not necessarily draw the same conclusion of a pasteurised fruit juice product unless it is disclosed on the label.
Similarly, meats, fruits and vegetables which have only been stored for a short time post-harvest are likely to be considered ‘ fresh’ by consumers.
In 2010 the ACCC took action against another juice manufacturer for claiming that its product was fresh, when in fact it contained juice that had been aseptically stored for periods typically less than 12 months.
In 2014, the Federal Court of Australia found that a major retailer had misleadingly referred to its bakery products as “Freshly Baked In-Store” when in fact the products had been par-baked off-site (or in some instances outside Australia)4. The products were then frozen and the baking process was completed in-store. The Federal Court found that consumers would expect that the products had been fully prepared and baked in the store on the day of sale.
Therefore, based on these examples of Australian legal principles, a product that is claimed to be “fresh” would generally not have undergone any processing or storage that would artificially extend its shelf life. The product should be available for sale as soon as possible after it has been prepared in a state that reflects that in which it appeared in nature. It is unlikely that many processed foods would meet a consumer’s understanding of “fresh”.
A “fresh” claim may also be used to distinguish a product from other products. For example, calling a product “fresh fish” distinguishes it from fish that has undergone some further processing.
In claiming a product is “fresh”, it is important to consider what makes that product fresh in relation to other products in a comparable origin. If there is no significant difference in processing or storage between the products, it might be misleading to claim that one such product is fresh.
The reasonable consumer’s understanding of what “fresh” means may change over time with the introduction of new processes and technologies. For example, if the use of high-pressure pasteurisation was to become widespread in relation to raw milk, this might alter future consumer expectations as to what amounts to “fresh” milk.
The Food Standards Code sets fruit content requirements for some product categories. For example, a fruit juice must be comprised of juice from a fruit. If the fruit juice has been mixed with water, mineralised water or sugars, the Food Standards Code classifies the product as a fruit drink. Moreover, the Food Standards Code provides that a product must contain fruit in order to be classified as a fruit wine.
There is substantial case law in Australia with respect to on-pack representations about fruit content. If a product contains representations of fruit on front of pack (in images or words) but does not contain actual fruit, a consumer would likely be misled. In 2004 the ACCC took action against a cordial manufacturer for including imagery of fruit on its packaging when the product contained only flavours.5
Even if the product contains the fruit that is represented on pack, the representation may still be misleading if the product contains one or more other fruits in higher quantities. In 2008 the ACCC took action against a snack food manufacturer in relation to its “Apple & Blackberry Fruit Pillow” product. The product actually contained apple and blackberry, but contained sultanas in much higher quantities.6
Any representations about fruit content should therefore only be made if the product actually contains that fruit in an amount that is not insignificant. Moreover, the representations about fruit should reflect the proportion of any other fruits that are in the product at higher quantities.
A common method of emphasising the authenticity of a product is highlighting a connection with a geographic area that is associated with quality produce.
The Country of Origin (Food Labelling) Information Standard7 requires foods sold at retail in Australia to declare where they were made, produced, grown or packed. In most cases, this will take the form of a prescribed mark that includes a bar chart indicating the percentage of Australian ingredients in the product.
In addition to these requirements, many products choose to make some other origin or geographic claim that might highlight a region within a country. Food companies should take care to ensure that these claims are not misleading or deceptive.
The ACCC has taken action against a number of voluntary geographic or origin claims, including:
1 Schedule 2 of the Competition and Consumer Act 2010 (Cth).
2 Food descriptors guideline to the Trade Practices Act Australian Competition and Consumer Commission, Published 23 November 2006, ISBN 1 921227 09 5.
3 Queen Fine Foods Pty Ltd v Heilala Vanilla Limited [2018] 18 ASIJ 1 (2 November 2018).
4 Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2014] FCA 1405 (22 December 2014).
5 Australian Competition and Consumer Commission v Cadbury Schweppes Pty Ltd [2004] FCA 516 (30 April 2004).
6 Australian Competition and Consumer Commission v Arnott‘s Biscuits Limited [2008] FCA 590 (29 April 2008).
7 Made under section 134 of Schedule 2 of the Competition and Consumer Act 2010 (Cth).
8 Australian Competition and Consumer Commission media release MR 246/15, published 8 December 2015.
9 Australian Competition and Consumer Commission media release MR 211/14, published 19 August 2014.
10 Australian Competition and Consumer Commission media release MR 96/14, published 29 April 2014.
Even though food law is basically harmonised in the EU, there are ‘specialities’ for which Austria is known as a culinary region and which have developed over the centuries. Labelling / marketing must be based on the Austrian legal framework and consumer understanding.
According to § 5 LMSVG (Lebensmittelsicherheits- und Verbrauch-erschutzgesetz – Act on Food Safety and Consumer Protection) it is forbidden to place food on the market with information that could be misleading, especially with regard to the quality of the food such as type, identity, composition, quantity, shelf life, country of origin or place of origin and method of manufacture or production. This special provision applicable to foodstuffs is accompanied by the general ban on misleading information in § 2 UWG (Gesetz gegen den unlauteren Wettbewerb – Act again Unfair Competition) and is applied cumulatively in processes. Whether or not a misleading nature exists must be examined on a case-by-case basis on the basis of the following guidelines and any case law issued. In any case, all these details are to be regarded as “voluntary details” and are subject to the provisions of Article 36 FIR. In the context of the Austrian Food Code, a guideline (Annex 6) on the non-deceptive presentation of voluntary claims referring to Austria has been issued. However, this guideline is not particularly meaningful. Whether a voluntary declaration is free of deception according to the public opinion, in particular according to consumer expectations, depends on a number of aspects, such as the manufacturing process and technology, the nature of the goods themselves, the essential and characteristic ingredients, the origin and provenance of the ingredients. Within this framework, the critical examination of the freedom from deception of designations such as “product from Austria”, “typical Austria”, “speciality from Austria”, “traditional from Austria” etc. is carried out.
The Federal Ministry for Sustainability and Tourism has published a register on traditional foods. The aim of this register is to collect, make public and preserve the traditional knowledge of Austria’s culinary heritage. It contains products and dishes that have been cultivated or processed in Austria with traditional knowledge for at least three generations or 75 years. Foodstuffs which fulfil these criteria in Austria are marketed in so-called umbrella brands by regional associations which use their own guidelines for the use of their labels.
Example Alpacher Heumilchkäse: The production of hay-milk and its further processing has a long tradition in Austria. Already in the Middle Ages, cheeses were made from hay milk on so-called “Schwaighöfen” in the foothills of the Alps and in the mountains of Tyrol. In the 16th century the Alpachtal region was already known for the hay feeding of dairy cows and for the production of fat cheese. Hay milk is therefore defined as cow’s milk coming from mother animals from farms that have committed themselves to complying with the regulations (guidelines).
According to Austrian case law11, the assertion/labelling that a product is homemade or handcrafted is likely to influence the purchase decision of an average consumer. This is certainly true for food. The literature in Austria has also expressly affirmed this. According to a judgement in case law, the consumer expectation is a quality characteristic of an organic product. In the case of bread, it indicated that the majority of the dough was produced by the company itself or its respective branches. To sell dough pieces from a third supplier (from abroad) as homemade, handmade or homemade is incompatible with consumer expectations and misleading.
With regard to the term “natural”, Austrian jurisprudence still quotes the CJEU “Strawberry” D’Arbo case12 as the guiding judgement. Accordingly, “naturally pure” is not understood to mean, for example, that a product, such as jam, would be produced entirely without an additive. However, the term means that a product was manufactured without the use of chemicals and that the ingredients were also used without any chemical modification.13
“Pur” is a synonym for “pure”. It means 100 % purity. There is no relevant Austrian decision on this. The Austrian food book does not give a definition either. Only in Chapter B23 of the Codex Alimentarius Austriacus is it described under “spirits” in the traditional Austrian “Inländerrum” that this is also enjoyed “pure” – this means without mixing. From this description in the food book, it can be concluded that the marketing opinion is “100 %” and a legal assessment can be made.
The labelling “fresh” is used in Austria for milk and dairy products as well as for fish, meat, bakery products and other products. According to the Chapter B32 of the Codex Alimentarius Austriacus for milk and milk products, drinking milk may be described as “fresh for longer” if there is no more than 72 hours between the extraction of the raw milk and the heat treatment. Where the term “longer fresh” is used, the date of minimum durability may not be more than 25 days after the day of heat treatment.
According to Chapter B18 of the Codex Alimentarius Austriacus for bakery products, pre-baked or partially baked bakery products which have been made storable by deep-freezing or other physical preservation processes and which have undergone a baking process before consumption may be described as “fresh”. According to Chapter B32, point 3.3.2.2, the term “fresh cheese” is defined as the name of a cheese group according to its water content (size 73 %) or fat content (up to 5 % of FIT).
The Codex Alimentarius Austriacus also has a guideline in Appendix 7 on the non-deceptive presentation of voluntary claims with reference to “farmer”.
Many foodstuffs on the Austrian market voluntarily bear direct or indirect references to farmers. These represent a connection between the product and the person or farm, the farm’s own raw materials or the production method or recipe; also from commercial or industrial production. Different products can be labelled with the additional designation “farmer”. All have the following in common:
In fact, these references are no longer used today as references to production by farmers according to traditional farming recipes, but rather define a certain quality. If the term is not presented as such in the food book (e.g. “farmer’s bread”), a non-rural production is to be clarified by appropriate references.
In this context, a distinction is made in the Codex Alimentarius Austriacus. Additional information such as “from the farmer” or “original building product” or “produced by the farmer” or similar are clear indications of actual production by farmers. On the other hand, codified products are produced by predominant producers who cannot be attributed to direct marketing by farmers. Codified products with the additional indication “farmer” in the designation do not therefore mean that the consumer expects a farmer’s production or from farmer’s raw materials, but only a certain type of production or a certain recipe. However, products from direct marketing by farmers must meet the criteria of farm production and their own farm raw materials. Therefore, products bearing the indication “farmer” and suggesting a farmer’s production on the basis of their overall presentation (presentation, presentation form and circumstances of the levy) also have to be provided with clarifying indications indicating commercial industrial production or the origin of the raw materials.
Codex Alimentarius Austriacus Guideline Appendix 8 on the fraud-free presentation of voluntary indications referring to mountain / alpine pasture / Alps and the delimitation of the quality indication “mountain product”:
There are foodstuffs on the Austrian market that refer to mountains, alpine pastures or the Alps. Foods labelled in this way must be assessed in accordance with the provisions of food law with regard to misleading and deception protection. The following aspects may be relevant:
The Austrian food register has laid down the following names:
Austrian alpine and mountain cheese, alpine cheese, mountain cheese and mountain salami, which are mainly defined according to their type. The word parts such as mountain, alpine pasture, Alps are to be distinguished from the optional quality indication mountain product regulated in Regulation (EU) No 1151/2012 on quality schemes for agricultural products and foodstuffs. According to Article 31 of Regulation (EU) No 1151/2012, such a term may only be used if the raw materials and products originate from mountain areas in accordance with Article 18(1) of Regulation (EC) No 1257/199914 and the processing takes place in mountain areas. The detailed requirements are laid down in Regulation (EU) No 665/2014.15 The geographical definition of mountain areas in Austria is laid down in Directive 1995/212/EC.16
The Alpine region was concluded between Germany, France, Slovenia, Italy, the Principality of Liechtenstein, Austria, Switzerland and Monaco in the State Treaty for the Protection of the Alps, which entered into force on 6 March 1995.17 This treaty defines the respective territories of the countries defined as Alpine regions. The designation of the products, which are marked as products from the “Alpine region”, concerns products, which must originate from this defined area.
This is a label for a regional product. A supermarket chain had advertised that a smoked fish would come from an Austrian family business. The Supreme Court18, under my representation, sentenced this retail chain (Billa Rewe Group) to refrain from such labelling, since the eye-catching reference to the “Austrian family business” was misleading in view of the Italian origin of the fish. It was therefore very likely that the public would be deceived as to the origin of the fish. The Austrian family business had in fact only smoked the fish. Since the fish in question was a trout which is known in Austria as a native fish, this underlined the misleading belief that a responsible consumer could assume that the entire product, i.e. fish including smoking, originated in Austria. The explanatory reference on the back of the packaging to the fact that the raw fish came from aquaculture in Italy was not such as to reverse that misleading impression.
According to Austrian Supreme Court jurisprudence, it is sufficient for a statement to be misleading if the reference to geographical origin is capable of influencing a consumer in any way when considering the choice. The mere risk of deception is sufficient to justify the Austrian element of misrepresentation under Article 2 UWG. In Austria, therefore, when designing product packaging, especially for foodstuffs, greater care must be taken to ensure that no claims are made whose ambiguity (ambiguity rule according to UWG) could mislead an average consumer as to the properties or origin of the product.
11 OGH 4 Ob 42/08t.
12 Case C-465/98, Verein gegen Unwesen in Handel und Gewerbe Köln e.V. ./. Adolf Darbo AG, judgement of 4/4/2000.
13 Most recently OLG Wien 129 R 38/18h – Kelly Chips.
14 Now Regulation (EU) No 1305/2013 on support for rural development by the European Agricultural Fund for Rural Development (EAFRD).
15 Commission Delegated Regulation (EU) No 665/2014 supplementing Regulation (EU) No 1151/2012 with regard to conditions of use of the optional quality term ‘mountain product’.
16 Directive 95/212/EC concerning the Community list of less-favoured farming areas within the meaning of Directive 75/268/EEC (Austria).
17 BGBl. No. 477/1995.
18 4 Ob 121/15w of 11/8/2015.
The advertising of foodstuffs in Belgium is regulated both by legislation and the food industry itself, through codes of conduct.
In terms of legislation, the two main relevant acts are the Law of 24 January 1977 on the protection of consumer health with regard to food and other products (framework legislation), and the Royal Decree of 17 April 1980 on the advertising of foodstuffs. The Law of 24 January 1977 establishes the legal framework for food standards, and its Article 7 provides that the Ministry of Economy may regulate and prohibit the advertising of certain products and foodstuffs in the interest of public health (e.g. alcohol and tobacco). Until recently, the Royal Decree of 17 April 1980 constituted a major piece of legislation in terms of rules on food advertising. It has however been revamped after the entry into force of Regulation (EU) No 1169/2011 on the provision of food information to consumers, and its content has since then become extremely light.
In parallel with hard law, one of the major initiatives taken by the Belgian food industry to self-regulate is the Code on the Advertising of Foodstuffs (the “Advertising Code”). It is an inter-professional code of conduct that was created by the Belgian Federation of the Food Industry and the Union of Belgian Advertisers. The rules contained in the Advertising Code are inspired by the ICC Code, and entered into force on 1 May 2005. They apply to all members of these associations, to all channels of communication that they use for the advertising of their foodstuffs, and in each Belgian region where the product is promoted.
The enforcement of the Advertising Code is ensured by a self-regulatory body named the “Jury for Ethical Advertising Practices” (the “JEP”). It was created by the Belgian Advertising Council, and its mission is to ensure fair, truthful and socially responsible advertising. The action of the JEP is based on the voluntary collaboration of agencies, advertisers and the media.
There is no general legislation or guidelines on the use of the term “traditional” with respect to foodstuffs.
Since recently, the use of the term “traditional” (traditionnel/traditioneel) or any derivative with respect to “mayonnaise” (mayonaise) is regulated.
Originally, the name “mayonnaise” was restricted to products containing a total fat content of at least 80%, and an egg yolk content of minimum 7.5%. However, Belgian producers were dissatisfied with the situation and complained about the lack of competitiveness that these strict legal requirements entailed, in particular given that foreign European products were often subject to less strict requirements and could also be legally marketed in Belgium. Indeed, under the principle of mutual recognition, a foodstuff legally manufactured in another Member State can in principle also be marketed in Belgium – under the same designation as in the Member State of origin – even though it does not fulfil the Belgian legal requirements applicable to the same foodstuff manufactured in Belgium.
In order to remedy this issue, the Ministry of Economy decided to revise most of the Royal Decrees concerning the designation of specific categories of foodstuffs. It is in this context that the Royal Decree of 26 May 2016 on mayonnaise was adopted. It provides that in order to bear the designation “mayonnaise”, a product has to have a total fat content of minimum 70%, and an egg yolk content of minimum 5%.
However, to avoid a decrease in quality of the product, the use of the term “traditional” (traditionnel /traditioneel) or any derivative thereof may only be used in combination with the term “mayonnaise” (mayonaise) to the extent that the product has a total fat content of minimum 80% and an egg yolk – technically pure – content of minimum 7.5%.
The term “artisan” is defined in the Law of 19 March 2014 on the legal definition of artisan.
An artisan or artisan business is defined as “a physical or legal person active in the production, transformation, reparation, restoration of artifacts, provision of services whose activities present aspects which are essentially manual, an authentic character, developing a certain know-how aimed at quality, tradition, creation or innovation”.
Furthermore, the law allows for additional sector specific requirements to be fixed.
Certain requirements have to be met in order to have, and keep, the quality of artisan.
To this effect:
There is no general legislation on the use of the term “artisanal” apart for meat products.
On 5 October 2017, however, Belgian authorities published guidelines on the use of the term “artisanal” and its derivatives in the names of products. The guidelines apply to all food and non-food products marketed in Belgium, unless other rules apply.
These guidelines explicitly underline that the Law of 19 March 2014 on the legal definition of artisan only applies to enterprises and not to products. It is therefore not possible to consider that a foodstuff is artisanal solely because it has been made by an artisan.
When can a foodstuff be called “artisanal”?
To be qualified as an artisanal foodstuff, a product has to meet at least one of the criteria listed below. These criteria originate from the intrinsic qualities of the product or their fabrication process, and cannot be combined with contrary elements.
These criteria are:
Criteria used on the field by the administration for food products
On 3 February 2017, Belgian authorities elaborated an indicative assessment framework in order to determine whether a foodstuff may be qualified as artisanal.
Those criteria constitute the basis to the guidelines published on 5 October 2017.
The criteria elaborated under the assessment framework are as follow. The document does not indicate whether they are cumulative or not: