September 2024
by Ana-Maria Baciu, Cristina Stoica and Iulia Dobre
The sale of products bearing the ”Nutri-Score” nutritional label is once again under scrutiny by authorities and economic operators with fresh legislative proposals in the pipeline.
On September 20, 2024, the Ministry of Economy released a Government Decision draft for public consultation, which was also posted by the National Authority for Consumer Protection (”ANPC, the Authority”) on September 23 on its website. This draft aims to create a legal framework for the sale of food products bearing the Nutri-Score label. The eagerly awaited legislative proposal seeks to clarify the scope of use, conditions for applying the Nutri-Score label, the obligations for economic operators, and penalties for non-compliance. Previously, ANPC raised concerns that this labeling system could influence some consumers to purchase products that do not align with their dietary needs or preferences.
The European context behind the “Nutri-Score” concept
EU Regulation No 1169/2011 (the ‘Regulation‘) sets the foundation for consumer food information, providing access to essential details like nutritional declarations and ingredient lists. To enhance the understanding of this data – such as energy value and nutrient content, the Regulation allows voluntary use of additional formats, including graphical representations or symbols, as outlined in Articles 35-37.
In response to a request from France’s Ministry of Health regarding food labeling, the French agency Santé Publique has developed a front-of-pack nutrition labeling system known as Nutri-Score. This system, which can be voluntarily applied by producers on their products, is designed to help consumers better understand nutritional information and support them in making informed decisions.
Nutri-Score was first implemented in France in 2017 and was endorsed by the Ministry of Health despite opposition from farmers and the food industry. Since then, other member states, such as Belgium, Spain, Germany, Luxembourg, the Netherlands, as well as Switzerland, have also adopted this system on a voluntary basis. The algorithm that classifies products is periodically reviewed.
Despite its apparent popularity, Nutri-Score has faced opposition in certain countries, such as Italy, Romania, Greece, Cyprus, the Czech Republic and Hungary. Authorities in these countries argued that the system disadvantages traditional products, such as, for example, those included in the so-called Mediterranean diet. Critics claim that Nutri-Score oversimplifies the evaluation of food products by emphasizing certain nutritional criteria, resulting in distorting consumer perception.
The situation in Romania and ANPC`s involvement
Following the European trend, in Romania companies began selling products with the Nutri-Score label in 2020.
Two years later, the Senate debated a legislative proposal initiated by USR parliamentarians on voluntary Nutri-Score labeling (L335/2022), but the proposal was rejected by the Senate and forwarded to the Chamber of Deputies for debate and adoption, which acted as the decision-making chamber. Following a negative opinion received from the Government, the proposal stalled towards the end of 2022 in the Chamber of Deputies[1].
Meanwhile, the use of Nutri-Score caught the attention of ANPC.
Initially, the ANPC limited its response to expressing disapproval of the system’s implementation. However, in mid-2022, it carried out multiple inspections of commercial operators who voluntarily used the Nutri-Score label on various products. Sanctions ranged from warnings to substantial fines (up to 50,000 lei), as well as additional measures to halt these commercial practices.
After receiving complaints from companies marketing such products, ANPC allowed them to keep these products on the shelf until stocks were exhausted.
ANPC’s main concern was that Nutri-Score could mislead consumers by oversimplifying nutritional information and failing to reflect the specifics of traditional Romanian foods.
Litigation before Romanian courts
In response to the sanctions imposed, some companies chose to challenge measures in court, arguing that the Nutri-Score system is widely accepted in Europe and that European law should allow its application in Romania without additional restrictions. These companies also invoked the EU Regulation articles, which allow the voluntary use of other forms of expression and presentation of nutritional information, arguing that the national authority exceeded the legal framework by sanctioning the use of Nutri-Score.
Verdicts from Romanian courts
Romanian courts have predominantly ruled in favor of economic operators selling products with the Nutri-Score label. Major retailers in the country, including some companies represented in court by our firm, have successfully challenged the contravention reports and penalties issued by ANPC.
In these favorable rulings, the courts primarily examined the purpose of the Nutri-Score system, the perspective of the European Commission and of the Ministry of Health, considering the following arguments in their reasoning:
- “The petitioner implemented this labeling system, which, as previously mentioned, was already in use in several EU countries, with European institutions being aware of it. It is noted that, in the view of the European Commission, the Nutri-Score system is not misleading to consumers but rather guides them towards making healthier food choices.
Additionally, in Address no. 6469/26.03.2020 (…) issued by the Ministry of Health, it was explicitly stated that brief nutritional labeling on the front of food packaging in the form of small graphic symbols is an important element in providing clear consumer information. It was also noted that this labeling system has begun to be implemented and is recommended in other countries as well (…). Therefore, it is observed that, at both the EU member state level and nationally, there are no binding legal provisions that prohibit the use of the Nutri-Score supplementary labeling system, as it does not constitute an unfair or deceptive commercial practice.”[2]
- “(…) the court considers that the additional labelling of products using the Nutri-Score system does not constitute a misleading action in relation to consumers, since the description of the contravention in the report does not indicate that the application of the letters from the Nutri-Score labeling system on food packaging induce or is likely to induce the average consumer to make a decision to purchase that product – a purchasing decision they would not have made in the absence of that labeling system.
(…) In regard to the labelling system, the court notes that the European Commission issued a report (…), in which it was noted that Nutri-Score indicates the general nutritional quality of a certain food product. According to studies that analyze the correlation between the quality of volunteers’ diets and nutritional diseases, the quality of the diet, assessed through the dietary index that underpins the Nutri-Score system, is associated with a lower risk of cardiovascular disease, cancer and overweight. Another study concludes that nutrition labels of this type have the potential to help reduce mortality from diet-related non-communicable diseases, and Nutri-Score labels have proven to be the most effective. Consumer advocates and public health associations believe that front-of-pack nutrition labelling can play a key role in helping consumers make more informed and healthier food choices. It was concluded that front-of-pack nutrition labelling aims to help consumers select food by providing nutritional information quickly and is increasingly viewed as a tool to support strategies for the prevention of diet-related non-communicable disease. Therefore, in the European Commission’s view, the Nutri-Score system is not likely to mislead consumers, but to guide them in making healthy food choices. (…) Therefore, the court holds that the petitioner cannot be accused of any intention to mislead consumers through this labelling system, nor can it be argued that it foresaw or accepted this. The complainant implemented this labelling system, which, as shown above, was already used in several states of the European Union, the European institutions being aware of it.”[3]
In contrast, there were also courts that confirmed the ANPC’s sanctions, arguing that the Nutri-Score labels must comply with national regulations and provide clearer information to Romanian consumers (“in the absence of unitary and transparent Nutri-Score labeling criteria, both in terms of the nutritional values included in each rating and in terms of the products labeled in this manner, the court holds that the petitioner was rightly held responsible for committing a misleading practice by labeling only certain products under Nutri-Score, based on unilaterally established criteria.”)[4].
Therefore, it seems that in most cases, the courts tried to strike a balance between complying with national legislation and aligning with European rules, even in the absence of a stable legislative framework in Romania. In light of the proposed amendments that we will detail further, it is noteworthy that the need for regulations that both support consumers and validate the diligent efforts of commercial operators has become evident in practice as well.
The new legislative proposal
Influenced by the dissension between commercial operators, who sought to align themselves with European practice, and ANPC, which claimed that the Nutri-Score system misleads consumers by oversimplifying nutritional information, a new draft of a normative act has been outlined: the Government Decision draft on the provision of information for commercialized food products bearing the Nutri-Score nutritional label (the “GD“).
The explanatory statement of the GD clarifies that the legislative approach aims to regulate the use of the Nutri-Score label to provide clear and easy-to-understand information for consumers.
Firstly, the GD provisions do not apply to traditional Romanian products, locally sourced products, or products that comply with the European quality schemes: Protected Geographical Indication (PGI), Protected Designations of Origin (PDO) and products with Traditional Specialties Guaranteed (TSG).
Secondly, the introduction of food products covered by the GD that bear the “Nutri-Score” label is only allowed for economic operators if complete, accurate, and precise nutritional information is provided to consumers. Thus, the economic operator is required to meet the following conditions:
- the sale of the products must be conducted in sectors or shelves arranged separately from the other products displayed for sale;
- consumer information about the nutritional value of the product must be provided via a QR code.
Additionally, the nutrition label must consist of a graphic representation containing: (i) the determined nutritional mention, and (ii) information regarding the composition of the food products.
Thirdly, to voluntarily adopt the complementary format for presenting nutritional values using the “Nutri-Score” label, the legislative initiative sets out two cumulative obligations for economic operators in the food sector: (i) providing written notification to the ANPC and (ii) submitting proof of the right to use the Nutri-Score label, obtained from the Santé Publique France Agency. It should also be noted that the right to use the label is granted free of charge after following a clearly explained procedure set forth by this institution.
Failure to fulfill these obligations related to informing ANPC constitutes a contravention, and ANPC may impose fines ranging from 10,000 lei to 50,000 lei.
Conclusion
According to the explanatory statement, the proposed legislation draft seeks to align Romania’s commercial practices with European and international standards by using the Nutri-Score labeling system already implemented in other member states (France, Belgium, Germany, Spain, the Netherlands, Luxembourg), as well as in other countries like Switzerland.
The legislative initiative is highly welcomed, in the context where, although to date, numerous sanctions imposed by ANPC, which were subject to complaints before Romanian courts, have been annulled, producers and retailers have discontinued the sale of products bearing Nutri-Score labels.
Only now, by way of the proposal of a new regulatory framework, the potential of this additional labeling system, which aims to enhance consumer protection on one hand and increase regulatory predictability for targeted economic operators on the other, is being recognized. However, it remains to be seen how the legislative initiative will evolve into its final form, to fully understand its impact and the obligations it will impose on economic operators.
[1] At that time, there was neither an obligation nor a prohibition to use this system under the Romanian law.
[2] Decision no. 2148/2024 of 04.07.2024 issued by the Bucharest Tribunal
[3] Sentence no. 2882/2023 of 28.04.2023 issued by the Court of Ploiesti
[4] Decision no. 522/2024 of 05.03.2024 issued by the Bucharest Tribunal