Dual quality: what does it mean and how do you deal with it?

Fish sticks with less fish in the Czech Republic than in Germany; one of the examples highlighted by dual quality in the European Union. Selling a product with the same labeling but a different recipe in another European member state is not allowed. What are the rules regarding dual quality?

From complaint to directive

Between 2016 and 2018, a number of member states and consumer associations reported differences in the composition in food products that reached their markets compared to the same products in other member states. It was suspected that products in countries that later joined the European Union (mainly in Eastern Europe) were of inferior quality compared to those in Western Europe. Czech Agriculture Minister Marian Jurečka even expressed fed up with being the "trash can of the European Union.

The European Commission took this seriously and commissioned the Joint Research Service to investigate the issue. The research team examined nearly 1,400 products and, while they could not find a geographic pattern to the differences, they did conclude that nearly one-third of the products with identical or similar labels, differed in their recipes.

As a result, on December 18, 2019, the European Commission published Directive 2019/2161/EC, which, among other things, amended Article 6 of Directive 2005/29/EC against unfair commercial practices. This officially established that selling products with identical or very similar marketing, but with different recipes, is no longer just allowed.

Dual quality in law

Article 6(2)(c) of Directive 2005/29/EC establishes the following:

A commercial practice shall also be regarded as misleading if, in its factual context, taking account of all its features and circumstances, it causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise, and involves the following:

marketing of a good in one member state as being identical to a good marketed in other member states, while the composition or characteristics of that good differ significantly, unless justified by legitimate and objective factors.

Thus, it is misleading to sell a product with (virtually) the same marketing in two member states, while the composition or characteristics differ significantly. However, there is an exception; when the food operator can justify the difference in recipe by legitimate and objective factors, these products may indeed be sold with the same label. However, it is then mandatory to inform the consumer of this.

Dual quality in practice

At first glance, the legal text sounds pretty straightforward, but when is something a significant difference? And what is meant by the legitimate and objective factors? To help authorities and industry, the European Commission has published guidance on the application of Directive 2005/29/EC. Chapter 2.8.5 explains in more detail the marketing of dual quality products.

Target audience of the legislation

First, it clarifies that the target of Article 6.2.c is the operators who determine the presentation and composition of the product. Usually this is the producer of the product. Nevertheless, the legislation also applies to retailers who purchase and sell the product and thus have no influence on the product's recipe or labeling. Indeed, authorities can require retailers to take corrective measures, such as providing additional information about the fact that the product is not identical to the same product in other member states.

Establishment of identical marketing

The Commission's tool also explains that in order to determine whether the marketing is identical, it is necessary to determine whether the average consumer can consider the two versions to be identical. Thus, it is not necessary that the packaging actually be exactly the same. The guidance recommends that food operators differentiate the packaging in such a way that the goods could be sold side by side and still make it clear to consumers that the products are different.

Determination of significant difference

The consideration of whether a difference in recipe is too great must be made on a product-by-product basis, according to the guidelines. What is important here is that the difference affects the average consumer's choice. In other words, would the consumer still buy the product if he or she were aware of the difference in composition? Not only sensory properties play a role here, but also, for example, health effects, such as the presence of allergens, or environmental impact, such as when palm oil is used.

Exceptions that justify dual quality

Finally, the factors that justify the use of different recipes in different countries are highlighted. A characteristic of these factors is that the difference in recipe is necessary or unavoidable, such as due to national legislation on composition or due to geographical or seasonal availability of raw materials. Another example cited by the European Commission is the reformulation of a product to give it better nutritional values, where it is not possible to make this change in all member states at the same time. In contrast, a difference in recipe due to different consumer preferences between member states is not considered a legitimate reason. In addition, under this exception, it is mandatory to inform consumers of the differences in the recipe between member states. This is preferably done through the label, but other methods, such as QR codes, are also allowed, provided that the information is easily and directly accessible to the average consumer.

No one size fits all

Een kernpunt wat meerdere malen terugkomt in de richtsnoeren, is dat elk geval van dual quality afzonderlijk beoordeeld moet worden. De producent moet per product beoordelen of de verpakking voldoende verschilt, de receptuur significante invloed heeft op de aankoopbeslissing van de consument en of dit verschil gerechtvaardigd kan worden. Dat kan een beoordeling of het product aan de wet voldoet, lastig maken. Heb je hulp nodig bij deze afweging? Neem contact met ons op via info@precongroup.com, NL +31 (0)30 65 66 010 of BE +32 (0)3 616 08 69.