Advocate General (AG) Norkus has delivered his Opinion in Case C‑315/24, Nestlé Sverige AB v Environmental Committee of Helsingborg Municipality (Miljönämnden i Helsingborgs kommun), a case referred to the Court of Justice of the European Union (the Court) by the Supreme Administrative Court of Sweden (Högsta förvaltningsdomstolen).
The case concerns the interpretation of Article 30(3) of the Food Information to Consumers Regulation (Regulation 1169/2011), and centres on whether food undertakings may repeat additional nutritional elements (protein and fibre on the front of packaging for food for special medical purposes (FSMPs), beyond those explicitly listed in the Regulation.
In his Opinion, AG Norkus concluded that the list of nutritional elements permitted for front-of-pack repetition under Article 30(3) of the Regulation should not be interpreted as exhaustive when applied to FSMPs. Emphasising the unique regulatory framework and medical context of such products, he argued that additional nutritional information may be repeated on the front of packaging provided it is accurate, necessary, and not misleading.
Background and Facts
The case arises from a dispute over the labelling of food for special medical purposes (FSMPs) in Sweden. Nestlé Sverige AB (Nestlé), a food manufacturer, marketed a range of FSMPs that included detailed nutritional information on the packaging.
This information included not only the mandatory nutrition declaration required under Food Information to Consumers Regulation (Regulation 1169/2011), but also a repetition of certain nutritional elements (such as energy value, fat, protein, and fibre) on the front of the packaging.
The Environmental Committee of the City of Helsingborg (Miljönämnden i Helsingborgs kommun) (the municipality) objected to this practice. It argued that the repetition of nutritional information on the front of the packaging went beyond what is permitted under Article 30(3) of the Regulation. According to the municipality), only a limited subset of nutritional elements (specifically energy value, and optionally fat, saturates, sugars, and salt) may be repeated on the front of the pack. It therefore claimed that Nestlé’s inclusion of additional elements like protein and fibre violated the Regulation and risked misleading consumers.
Nestlé challenged this interpretation, asserting that the repetition of additional nutritional information was necessary to ensure that consumers, particularly those relying on FSMPs, could make informed decisions. The company emphasized that FSMPs are used under medical supervision and that their users require detailed and accessible nutritional data.
The dispute reached the Supreme Administrative Court of Sweden (Högsta förvaltningsdomstolen), which made a reference for a preliminary ruling to the Court. The key issue was whether Article 30(3) of the Regulation prohibited the repetition of nutritional elements beyond those explicitly listed, particularly in the context of FSMPs.
Before the case reached the Supreme Administrative Court of Sweden, the decision of the municipality 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’s initial decision.
Opinion of the Advocate General
AG Norkus began his Opinion by situating the case within the broader framework of EU food law, particularly the Regulation in question on the provision of food information to consumers. He emphasised that the regulation aims to ensure a high level of consumer protection, while facilitating informed choices and the smooth functioning of the internal market.
AG Norkus noted that Article 30(3) of the Regulation allowed for the voluntary repetition of certain elements of the mandatory nutrition declaration on the front of the packaging. However, the provision explicitly limits this repetition to either: 1) the energy value alone, or 2) the energy value together with the amounts of fat, saturates, sugars, and salt. The legal question, for him, was whether this list was exhaustive, thereby excluding the repetition of other nutritional elements such as protein and fibre; or not, and whether it allows for some flexibility, particularly in the context of FSMPs.
The Opinion noted the specific nature of FSMPs, which are governed not only by the Regulation in question, but also by Commission Delegated Regulation 2016/128 (on the specific compositional and information requirements for food for special medical purposes), which sets down specific compositional and information requirements for FSMPs.
For him, the fact that FSMPs are not ordinary food products, and that they are intended for the dietary management of patients with specific medical conditions, and are used under medical supervision, means that the information needs of their users differ significantly from those of the average consumer. Accordingly, AG Norkus argued that the general rules on food labelling must be interpreted in light of the specific regulatory regime applicable to FSMPs, pointing out that Commission Delegated Regulation here requires that FSMPs be accompanied by detailed information to ensure their safe and appropriate use.
AG Norkus acknowledged that the wording of the Regulation appears, at first sight, to be exhaustive, listing only a limited set of nutritional elements that may be repeated on the front of the pack. However, he cautioned against a purely literal interpretation, and stated that, at second sight, a contextual and teleological approach is more appropriate, taking into account the objectives of the Regulation and the specific characteristics of FSMPs. He therefore stated, for him, that the purpose of limiting front-of-pack repetition is to avoid consumer confusion and ensure clarity and consistency in food labelling.
In the case of FSMPs, however, the repetition of additional nutritional elements may actually enhance clarity and support informed decision-making, particularly for healthcare professionals and patients managing complex dietary needs. He therefore concluded that the Commission Delegated Regulation, and the Regulation should not be interpreted as prohibiting the repetition of additional nutritional elements on the front of FSMP packaging, provided that such repetition is accurate, non-misleading, and necessary for the safe use of the product.
As the operative part of the Opinion was put,
Article 5(2)(g) of Commission Delegated Regulation (EU) 2016/128 of 25 September 2015 supplementing Regulation (EU) No 609/2013 of the European Parliament and of the Council as regards the specific compositional and information requirements for food for special medical purposes
must be interpreted as meaning that information concerning the energy value of the product and the amounts of various nutrients provided elsewhere than in the nutrition declaration cannot constitute an additional description of the product’s properties and characteristics.
Comment
According to the Advocate General’s legal analysis, the municipality’s interpretation of Article 30(3) should not prevail, and Nestlé’s position is the correct one under EU law
Whilst the judgment of the Court is awaited in light of the Opinion, the purely legal matters must be overlooked momentarily, given to see which public authority is acting in this case.
The public authority trying to do the enforcement here is a municipality, on the south west coast of Sweden. It has no expertise in food labelling. It is certainly not the Swedish Food Agency (Livsmedelsverket). It is worth questioning why a local authority, without national-level expertise in food labelling, would initiate enforcement action against a global food manufacturer.
Municipalities are to look after municipal issues and use their limited resources on providing public services for local communities. They are not to fight major food conglomerates who are more than able and willing to take legal action to defend their economic rights.
Read the Opinion
The Opinion of Advocate General in Case C-315/24, Nestlé Sverige AB v Miljönämnden i Helsingborgs kommun, referred by the Supreme Administrative Court of Sweden (Högsta förvaltningsdomstolen), currently before the Court of Justice of the European Union, is able to be read here.