Deception in the food trade
Definition and significance
Deception in the food trade refers to intentional or negligent conduct aimed at misleading consumers regarding the nature, origin, quality, or composition of foodstuffs. This practice is of considerable relevance both in terms of consumer protection law and competition law. It encompasses numerous forms such as concealing ingredients, false origin information, misleading packaging claims, as well as the simulation of certain properties of a product.
Legal foundations
German Food and Feed Code (LFGB)
German food law governs deception in the food trade primarily in the German Food and Feed Code (LFGB). According to Section 11 LFGB, it is generally prohibited to market food with misleading representations or presentations. The legislator prohibits any form of deception capable of misleading consumers about attributes such as type, identity, quality, composition, quantity, durability, origin, or country of provenance of a food product.
Regulation (EU) No. 1169/2011 (FIC Regulation)
The European Union also stipulates key requirements through the Food Information to Consumers Regulation (FIC Regulation). Article 7 FIC specifically prohibits any marketing by which a food is misrepresented through labeling, advertising, or description. These regulations extend to information concerning food in the broadest sense and are binding on all EU Member States.
Other relevant regulations
In addition, the Act Against Unfair Competition (UWG), the Prepackaging Regulation, the specification of certain ingredients, as well as national labeling regulations (for example concerning origin or GMO-free status) must be considered. The regulations are supplemented by numerous ordinances, for instance for specific food categories or additives.
Types of deception in the food trade
Misleading names and presentations
Deception is present particularly when specific properties are falsely attributed to a product, for example when vegetable margarines are labeled as ‘butter’, or when products are designated ‘with no added sugar’ but contain other sweetening ingredients.
Faking geographical origin
Indicating a geographical origin is legally protected especially for regional specialties. The use of designations of origin such as ‘Black Forest Ham’ or ‘Champagne’ for products not originating from the named region constitutes an act of deception.
Deception through food additives or substitute products
It is considered deceptive if high-quality ingredients are substituted by cheaper ones without proper disclosure, for example replacing high-grade cheese with analog cheese, or using flavorings instead of the natural base ingredient.
Hiding or concealing ingredients
Deception can also arise from deliberately concealing allergenic or other relevant ingredients. The Food Information to Consumers Regulation prescribes clear and complete disclosure of all ingredients.
Sanctions and consequences
Administrative offenses and criminal law
Violations of the prohibition on deception constitute administrative offenses pursuant to Section 59 LFGB and are punished with fines. In severe cases, for example when intentionally placing health-endangering products on the market, criminal prosecution can also occur under Section 58 LFGB, the Criminal Code (§ 263 StGB – fraud), or other special legal provisions.
Measures under competition law
Market participants can, according to the provisions of the Act Against Unfair Competition (UWG), file claims for injunction and, if applicable, damages. These measures serve primarily to protect competitors and safeguard fair competition.
Further consequences
In addition to administrative and judicial sanctions, a company’s reputation is at significant risk of damage. Civil lawsuits, product recalls, and trade exclusions are common accompanying effects of uncovered deception in the food trade.
Consumer protection and monitoring
Oversight by authorities
In Germany, responsibility for monitoring primarily lies with the food monitoring offices of the federal states as well as specialized authorities such as the Federal Office of Consumer Protection and Food Safety (BVL). In cases of suspicion, these authorities investigate, take samples, and, if necessary, impose sanctions.
Obligations of companies to cooperate
Food business operators are subject to extensive documentation, diligence, and information obligations. Compliance with the regulations is regularly checked, for example by official food sampling and business inspections.
Role of consumer associations
Consumer protection organizations have the right, under the Injunctive Relief Act, to take civil action against misleading food information and to aim for market rectification.
International aspects
As the food trade is largely cross-border in nature, international standards must also be observed alongside national regulations, such as those of the Codex Alimentarius of the United Nations or agreements of the World Trade Organization (WTO). These frameworks foster the harmonization of labeling and anti-deception regulations at the global level.
Summary
Deception in the food trade is a central concept in food law and deeply affects aspects of consumer protection, competition, and market transparency. It encompasses a wide range of possible forms of misleading practices, which are regulated by comprehensive national and European legal provisions. Sanctions range from fines and criminal consequences to competition law measures and reputational damage. The primary goal of the extensive regulations is to protect the integrity of the food market and consumer confidence.
Frequently asked questions
When does a deception in the food trade exist in a legal sense?
In a legal context, deception in the food trade is present when a food is presented, labeled, or advertised in such a way that it creates false impressions in the consumer regarding its nature, origin, composition, or other significant attributes. According to Article 7 of EU Regulation No. 1169/2011, any information about food that could mislead the buyer is prohibited, particularly with respect to the identity, properties, effects, composition, quantity, durability, origin, or manufacturing process of the food. Section 11 of the German Food and Feed Code (LFGB) further stipulates that it is forbidden to place food on the market under misleading designation, information, or presentation. It is also relevant whether, from an objective point of view, an average consumer is led to a misconception, regardless of whether the marketer acted intentionally.
What legal consequences follow in the event of proven deception in the food trade?
If deception is proven, a wide range of legal sanctions can be imposed. Under the LFGB, both administrative offenses (Section 59 LFGB) and criminal offenses (Section 58 LFGB) can be prosecuted. Sanctions may range from fines of up to several tens of thousands of euros and sales bans on affected products to prison sentences of up to three years in cases of intentional conduct. Additionally, there may be competition law claims for injunction from competitors and recalls of the affected goods. Authorities may also order the public to be informed about established deceptions (Section 40 LFGB).
Who bears legal responsibility in cases of deception in the food trade?
As a rule, the food business operator who markets or manufactures the food is responsible under food law (Section 4, Paragraph 1 LFGB). In practice, responsibility can be distributed along the entire supply chain, with allocation determined by food monitoring authorities in case of dispute. Manufacturers, importers, as well as retailers may be held liable if they market products under their own information or breach labeling obligations. Responsible personnel may also be held personally liable in particularly serious cases.
What role do food labeling and advertising play in connection with deception?
Labeling and advertising are key points of focus for preventing or detecting deception. The Food Information to Consumers Regulation (FIC, EU Regulation No. 1169/2011) as well as the LFGB set out in detail which information is mandatory and in what form it must be provided. Violations of labeling requirements, misleading representations, or health claims that are not scientifically substantiated clearly constitute deception in a legal context. Images, color schemes, or packaging elements are also subject to scrutiny for possible misleading effects.
What legal options do consumers have if they suspect deception?
If consumers suspect deception, they can initially contact the local food monitoring offices or the relevant state authorities and file a formal complaint. These bodies are authorized to conduct investigations and take samples. In addition, there is the option to have breaches of competition law addressed by organizations such as consumer advice centers or consumer protection associations. In serious cases, civil claims for damages or injunction may be pursued, although the burden of proof generally lies with the claimant. Involvement of the EU Rapid Alert System for Food and Feed (RASFF) is also possible if there is suspected risk to public health.
Are there special regulations for specific food groups concerning deception?
Yes, in addition to the general regulations, there are special rules for certain food groups aimed at preventing deception. In particular, for organic foods, meat products, dairy products, or so-called specialty foods such as food supplements, there are specific labeling requirements and additional control mechanisms (e.g., EU Organic Regulation). The legal framework thus has varying degrees of stringency for each type of food, in order to address particular risks of deception.
How is deception in the food trade monitored and prosecuted?
In Germany, monitoring is carried out by official food surveillance authorities at the municipal, district, and state levels. The authorities conduct both planned and ad hoc inspections in businesses, retail stores, and online shops. They take samples and perform laboratory analyses, check compliance with labeling requirements, and, in case of complaints, investigate those responsible. Furthermore, cooperation with European authorities and warning systems has been established to effectively tackle cross-border deception. Investigations are conducted in accordance with the rules of the Code of Criminal Procedure, provided there is an initial suspicion of criminally relevant acts of deception.
