Protection from Misrepresentation

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Changed on: 01.06.2021
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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 not usually a food safety issue, it is a food quality and consumer protection issue. According to the Food Safety and Consumer Protection Act (LMSVG), it is not permitted to place adulterated food on the market. Consumers must also not be misled by false information about the nature and composition of the food. Detailed and reliable labelling of foodstuffs is therefore essential. In order to protect consumers from falsely declared foods, it is necessary to be able to guarantee the authenticity of the products. For authenticity testing, reliable methods are needed to enable unambiguous animal species identification and quantification or to detect the possible content of animal components in vegan products.

DNA as the key for the identification of plant and animal species

Each species is defined by its unique genetic code. Therefore, DNA analysing methods (e.g. PCR, sequencing) are increasingly used for species detection. At the Institute for Food Safety Vienna, animal foodstuffs such as meat and sausage products, game products and vegan foodstuffs are regularly checked to ensure that the declaration is correct. Molecular biological methods can be used not only to detect genetically modified organisms (GMOs) and allergens in food, but also to detect animal and plant species in food. The methods are suitable even for highly heated products, since even here sufficiently long DNA fragments characteristic of the species in question are still present. For vegan products without characteristic DNA fragments, as they are often present after fermentation processes, immunochemical methods (ELISA) are used.The following methods are routinely used to detect animal and plant species:

Sequencing

DNA sequencing is the determination of the nucleotide sequence in a DNA molecule. This nucleotide sequence is unique to all living organisms and allows the identification of many animal species in a single experiment. At AGES, a sequencing method has been developed to detect over 30 animal species in up to 96 samples simultaneously (Dobrovolny et al., 2019), and is now used as a screening method to detect any undeclared animal species in a food product. With this method, unambiguous identification of many animal species in many samples at the same time is possible.

Real-Time PCR

Real-time PCR has been used at the Institute of Food Safety Vienna for many years for the detection of DNA of plant and animal origin and for the quantification of identified animal and plant species. A whole range of specific PCR methods is available, and new test methods for wild animal species have also been developed in cooperation with the University of Vienna (e.g. for the detection of roe deer, fallow deer, red deer, sika deer, wild boar).

ELISA

The Enzyme Linked Immunoabsorbent Assay (ELISA) is an immunological detection method based on an enzymatic colour reaction. With the help of ELISA, animal proteins can be detected in a food sample (e.g. in vegan food).

Recommended reading

Dobrovolny, S., Blaschitz, M., Weinmaier, T., Pechatschek, J., Cichna-Markl, M., Indra, A., Hufnagl, P., Hochegger, R. (2019). Development of a DNA metabarcoding method for the identification of fifteen mammalian and six poultry species in food. Food Chemistry, Volume 272, 354-361.

Kaltenbrunner, M., Mayer, W., Kerkhoff, K. et al. Differentiation between wild boar and domestic pig in food by targeting two gene loci by real-time PCR. Sci Rep 9, 9221 (2019).

Maria Kaltenbrunner, Rupert Hochegger, Margit Cichna-Markl,Tetraplex real-time PCR assay for the simultaneous identification and quantification of roe deer, red deer, fallow deer and sika deer for deer meat authentication (2018). Food Chemistry, Volume 269, 486-494.

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