Protection from Misrepresentation

Services Related Content
Changed on: 08.02.2017
caption
shopping

The claims and illustrations on the front of product packaging do not always feature adequate levels of information to give consumers a clear picture of the properties of a given good. Fancy names are often found on the front of the product’s packaging. If such information is strongly featured, while other information that is essential for recognising and understanding the content is depicted less noticeably, it could be a case of misrepresentation. It is recommended to take a look at the actual name of the product and the list of ingredients, which must be shown on the good, to get information about whether expectations of a product will be met. This information can usually be found on the back of the packaging.

More information
caption
shopping

The claims and illustrations on the front of product packaging do not always feature adequate levels of information to give consumers a clear picture of the properties of a given good. Fancy names are often found on the front of the product’s packaging. If such information is strongly featured, while other information that is essential for recognising and understanding the content is depicted less noticeably, it could be a case of misrepresentation. It is recommended to take a look at the actual name of the product and the list of ingredients, which must be shown on the good, to get information about whether expectations of a product will be met. This information can usually be found on the back of the packaging.

More information

Ban on Misleading Customers

Ban on Misleading Customers

Foods that feature claims which could mislead customers are banned from being marketed. This ban is included in the Austrian Food Safety and Consumer Protection Act, Federal Law Gazette No. 13/2006, as amended. Furthermore, Community Regulation No. 1169/2011 on the provision of food information to consumers, which came into effect on 13th December, 2014 and is mandatory for all EU Member States, also contains regulations on the integrity of information practices. See "Examples of misleading claims".

All food information is subject to the Law on Misrepresentation

This includes all information referring to foods provided to the consumer via labels, other accompanying materials or in any other form, such as modern technological means or verbally, which also encompasses advertisements. Additionally, the form, visual appearance or packaging, packaging materials used, layout and presentation of food must be taken into consideration.

Consumer Model as a Standard

The consumer model defined within the jurisdiction of the European Court of Justice should be used as a standard. It states that the model for the average European consumer is not that of a casual consumer, but of an average informed, careful and sensible individual. Such a person is willing and able to acknowledge, read and understand the information printed on food product labels, using it to make a decision.

New rules in the Regulation on the provision of food information to consumers, such as the requirement to clearly indicate the use of an imitation instead of the original ingredient stated in the name of the food product and on the front of the product packaging, show – in some cases – a return to casual consumer image, which emanates from consumers who must be protected from being mislead.

More Detailed Explanations on Misleading Information

Not everything that is disappointing for an individual can be considered misleading or fraudulent from a legal perspective. More details on misleading or fraudulent information can be found in the Austrian Food Code, chapter 3 "Allgemeine Beurteilungsgrundsätze" (evaluation principles) (www.lebensmittelbuch.at) and in the "Leitlinie über die täuschungsfreie Aufmachung bei freiwilligen Angaben" (guidelines on non-misleading presentation for voluntary information) provided by the Austrian Federal Ministry of Health. See "Erläuterungen hinsichtlich zur irreführende geeigneter Angaben" (clarifications on information that is susceptible to misrepresentation).

Clarifications

Clarifications

Product information and claims are considered to be misleading or fraudulent if their relevance does not conform to the reality anticipated by the intended recipients. Clarifications regarding misleading product information and claims can be found in chapter A3 "Allgemeine Beurteilungsgrundsätze" (evaluation principles) of the Austrian Food Codex (www.lebensmittelbuch.at).

Whether certain information or claims are misleading must be assessed in relation to the overall impression of the product on the average consumer. Should product information be targeted on one particular group, the impression it makes on this specific group must be assessed. The possibility that this information could be misunderstood by a considerable number of recipients is already enough in this case. This refers to information that is important for consumers, but that is not stated clearly in comparison to other information, for example.

All the information given must be assessed and not only parts of it. Ambiguous information should be considered disadvantageous for those responsible, if a considerable proportion of the intended recipients can actually understand this information in a way that is unfavourable to them. There is no general obligation for complete information. Should a specific fact gain significant importance in line with generally accepted views, omitting this fact can be deemed misleading, in particular if this creates a false overall impression.

The "Leitlinie über die täuschungsfreie Aufmachung bei freiwilligen Angaben" (guidelines on non-misleading presentation for voluntary information) of the Austrian Federal Ministry of Health includes precise details on specific voluntary information on food products.

Examples

The Regulation on the provision of food information to consumers prohibits misleading information on the properties of foods. Information and claims that are susceptible to misrepresentation include type, identity, nature, composition, quantity and shelf life, origin, manufacturing and also specific claims with regards to the effect and properties of foods.

Examples of Misleading Claims of Foods

Claims on Effects and Properties

Effects or properties a food does not possess, as well as claims suggesting that a food product is unique due to a specific feature (e.g. containing or not containing an ingredient or substance), although comparable food products posses the same features (implicit advertising).

Health-Related Claims

No claims may be made in reference to preventive effects or the treatment or healing of a disease. Health claims are only allowed with the appropriate permission and when included in an EU Regulation, as long as the products meet the relevant criteria.

Local Reference

Many products on the Austrian market feature voluntary claims with a reference to Austria. Examples include the national flag or colours, “Austria” in the name, images of typical Austrian landscapes such as mountains, villages, pastures, animals or traditional costumes, made/produced in Austria, “Austrian quality”.

The susceptibility to misrepresentation in relation to such claims must be assessed on a product-by-product basis and regarding the overall appearance, with the processing stage also playing a role. It must be asked whether the product is characterised by specific ingredients/raw materials and their origin is recognisable, or whether the production/processing has been carried out in Austria. The legal regulation of this issue is intended in EU Regulation No. 1169/2011 on the provision of food information to consumers. However, an implementation act is still required to enforce this regulation.

Information on the packaging explaining what the local claim refers to can be helpful in avoiding false associations regarding Austria claims. Exemptions include ingredients that are not available in Austria and the origin of which is clearly not Austria, such as exotic fruit and spices.

Manufacturing claims such as "traditional" or "handcrafted"

It is important to check whether the Austrian Food Code (www.lebensmittelbuch.at) contains a description of a specific traditional recipe for industrially produced goods featuring claims referring to being “handcrafted” or using “traditional methods and recipes.” “Handmade” or “traditional” production claims must be questioned in particular, if additives are present, for example.

Claims referring to "Bauern" (Farm(er’s))

Such claims may be a reference between a product and an individual or a farm, local raw materials from a farm and/or production method or recipe.

Claims relating to products bearing a reference to "Bauern" (Farm(er’s)) described in the sub-chapters of the Austrian Food Codex refer to traditional recipes and methods. Products marketed directly by the farm can be expected to be made from the farm’s own resources. For all other cases, additional information must clarify what the claim "Bauern" (Farm(er’s)) refers to.
Such claims as the identity of the manufacturer/place of production, essential and/or characteristic ingredients (recipe), origin of ingredients, production methods and technologies, as well as visual presentation and manner of distribution (e.g. farmer’s market) must be taken into account with regards to their susceptibility to misrepresentation in the individual case.

Images of Fruit and Other Images

Images of fruit and other images could be associated with a specific quantity of ingredients contained. However, in some products this may only indicate the flavour in combination with the use of aromatic substances, which could cause potential for misleading consumers dependent on the product’s overall presentation.

Claims such as "frei von...", "frisch" oder "natürlich" (free from…, fresh, natural)

A "frei von..." (free from) claim should be tested noting whether the respective ingredient or additive is legally permitted in comparable food products (e.g. a food category or sub-category). If this is the case, the claim is not fraudulent.

Additionally, claims or images such as "Frische", "Natürlichkeit" (fresh, natural) and similar words could be seen as implicit advertising or misrepresentation. Moreover, claims that are unclear or ambiguous could also be considered misleading. Whether a claim might be misleading or not must always be checked in each individual case and by taking a look at the product’s overall impression.

The Code guideline on non-misleading food labelling for foods sweetened with the additive Stevioglycoside (E 960) states clearly that advertising the additive’s natural authenticity when using this sweetener made from the Stevia plant is susceptible to misrepresentation.

Further Information

The "Leitlinie über die täuschungsfreie Aufmachung bei freiwilligen Angaben" (guidelines on non-misleading presentation for voluntary information) of the Austrian Federal Ministry of Health includes precise details on specific voluntary information on food products.

Examinations

Testing of Foods

The experts at the AGES Division for Food Safety work on exposing fake products, such as ham with too-high water content or various food claims that do not hold what they promise. They are supported greatly by proven chemo-analytical examinations for the composition of foods, but also by the molecular biology-based methods (DNA analysis) that are being increasingly used to determine exact species of animal (including species of fish). Histological examinations of tissue layers under the microscope can discover added mechanically separated meat or substandard tissue such as skin, which is not permitted in meat products.

Contact: see Service / Lebensmittelsicherheit / Täuschungsschutz

 

 

Animal Species

Although the identification of animal species is generally not a question of food safety, it is a food quality and consumer protection question. According to the Food Safety and Consumer Protection Act (LMSVG), it is not permitted to place fake or substandard foods on the market. It is not permitted to deceive consumers about the type and composition of food through false claims. The detailed and correct labelling of food is, therefore, mandatory. It is necessary to guarantee the authenticity of the meat used to protect consumers from falsely labelled meat products. Simple, rapid, reliable methods are needed for authenticity examinations to ensure clear animal species identification and quantification.

Animal Species Identification

Species identification examinations for meats used in meat products play an important role for meat production. In Austria, there is an increasing number of game-based products on menus. The percentage of game as a part of total meat consumption is increasing every year. Game products are considered delicacies given their distinctive taste and balanced ingredient composition, allowing them to be sold for much higher prices. The danger of misrepresentation is particularly large when closely related species or sub-species are traded at markedly different prices.

A third of all fish and seafood in U.S. retail stores were incorrectly labelled, according to a study released last year. Thirty-three percent of all fish were labelled as the wrong species, according to a DNA analysis made using the more than 1,200 samples taken. The European Commission is planning to do comprehensive checks of whether such labelling is correct in Europe.

Religious taboos and health risks are also a major concern when it comes to animal species identification in foods, in addition to the principle of consumer protection against misrepresentation. The religion-based abstention from specific types of meat is leading to an increasing need for labelling checks for meat and meat products. Even the smallest amounts of meats from animals abstained from by specific religions are rejected (examples of such preparation processes; kosher and halal).

DNA as key for verifying plant and animal species 

Each species is identified by a unique genetic code. As a result, increasing numbers of DNA analysing tests (e.g. PCR and sequencing) are being used to identify species. Animal-based foods such as sausages and meats or game products are tested regularly at the Institute for Food Safety in Vienna to check whether the labelled contents is really what it claims to be or if the product is fake.

Molecular biological methods can not only be used to test for genetically modified organisms (GMOs) and food allergens, but also to verify animal species present in foods. The tests are also suitable for the examination of products that are heated to high temperatures because the characteristic DNA fragments for each individual species required do not break down so quickly.

The following two methods are routinely used to differentiate between animal and plant species:

Real-Time PCR

Real-time PCR is the method of choice at the Institute for Food Safety, Vienna: it is fast, very specific and allows the obtaining of quantitative results statements.   
There is a wide range of animal-specific PCR tests available for the reproduction of species-specific DNA  sections and new examinations were developed in cooperation with the University of Vienna (e.g. for the identification of roe and stag venison, as well as wild boar), See list of publications.

Sequencing

DNA sequencing is the determination of nucleotide sequences in a DNA molecule (also known as DNA barcoding). The DNA sequence of the unknown sample is compared to those of a variety of others in a database. It is possible to identify a sample to an exact species level using this method. For example, the verification of a type of fish using its DNA sequence to identify a species-specific marker gene in the database (for instance, cytochrome b from  mitochondrial DNA).

Molecular biological methods have become increasingly established in plant and animal food analytics because of their high specificity and sensitivity. The use of these methods will rise further especially in the verification of the authenticity of locally produced goods. 

Recommended Reading

Druml, Grandits, Mayer, Hochegger, Cichna-Markl (2014): “Authenticity control of game meat products - A single method to detect and quantify adulteration of fallow deer (Dama dama), red deer (Cervus elaphus) and sika deer (Cervus nippon) by real-time PCR”; Food Chem. 2015 Mar 1;170:508-17.


x