The Supreme Administrative Court of Sweden (Högsta förvaltningsdomstolen) has made a new reference for a preliminary ruling to the Court of Justice of the European Union (CJEU) – Case C-315/24, Nestlé Sweden – on the proper interpretation of EU law on the labelling of food for special medical purposes.
More specifically, the referring court is seeking an interpretation of various articles in, 1) Commission’s Delegated Regulation 2016/128, and 2) the other piece of secondary law which it supplements, Regulation 609/2013 regarding special composition and information requirements for food for special medical purposes.
The case before the referring court – Mål 801-23 – is based on the following facts.
A public authority – the Environmental Committee of Helsingborg Municipality (Miljönämnden i Helsingborgs kommun) – a body made up of politicians, has made order against Nestlé, a company in the food industry, demanding that it remove information about energy values and actual levels of nutrients from the labelling on the front of the packaging of a particular food. According to the public authority, the information constitutes unauthorised repetitions of information in the mandatory nutrition declaration.
Nestlé on the other hands believes that the said information constitutes a necessary supplement to the mandatory nutrition declaration, and that it is therefore not a question of unauthorised repetitions. Amongst Nestlé’s claims is that the way of labelling food for special medical purposes purposes constitutes industry practice throughout the EU and the labelling in question has not been rejected by authorities in other Member States.
Clarity is being sought on whether:
1) the indication of certain information of the energy value and the amount of various nutrients on a package containing a food for special medical purposes constitutes an unauthorised repetitions of information in the mandatory nutrition declaration,
or on the contrary,
2) whether it constitutes permissible information that supplements the mandatory nutrition declaration.
Two questions have been now referred to the Court.
First, can information about the good’s energy value and the amount of nutrients, which are found elsewhere than in the nutrition declaration (e.g., the packaging), constitute such a supplementary description of the product’s properties and characteristics as referred to in Article 5.2g of Regulation 2016/128?
And second, if the answer to the first question is in the affirmative, then Article 6.2, which contains a prohibition against repeating the information in the mandatory nutrition declaration on the label, constitutes an obstacle to providing information about energy value and the amount of different nutrients in a description according to Article 5.2 g, if the information is expressed in a different way than per 100 g or per 100 ml?
Before the case reached the Supreme Administrative Court of Sweden which it is currently before, the decision of the Municipality of Helsingborg was politically/administratively challenged before the County Administrative Board of Scania (Länsstyrelsen i Skåne län) without success. Nestlé then went to the national courts, first before the Administrative Court of Malmö (Förvaltningsrätten i Malmö), and then before the Administrative Court of Appeal of Gothenburg (Kammarrätten i Göteborg) as Case No. 764-22. Thus far, before the first two instance in the national courts, Nestlé lost, with both national courts thus far deferring to the Municipality of Helsingborg’s initial decision.
This is a highly curious case. Why are a bunch on politicians sitting on a municipality on the south west coast of Sweden, with no expertise in food labelling and the requirements under EU law, deciding to pick a fight with one of the world’s biggest food companies that is based in Switzerland? Is there a local food company operating in the same food market as Nestlé that the municipality is trying to promote, to the detriment of out-of-state competition? Surely, such a task of regulating the proper labelling/packaging of foodstuff is to be left to the dedicated national authority? Municipalities are to look after municipal issues, and use their limited resources on providing public services for local communities. Not fight major food conglomerates who are more than able and willing to take legal action to defend their economic rights.
That said, the case has now reached a court of final instance in Sweden, and now the court has to decide who has the correct interpretation of EU law: the Swedish municipality and the Swedish courts thus far, or Nestlé.
More information in Case C-315/24, Nestlé Sweden sent to the CJEU by the Supreme Administrative Court of Sweden (Högsta förvaltningsdomstolen) can be read here.