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Nutritional information for food: Please always in table form!

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Nutritional information for food: Please always in table form!

Selling food online in a legally compliant manner is a fine art. Nevertheless, there are always typical pitfalls that are targeted by warnings. Finally, the nutritional information should be provided in continuous text instead of in table form.

What’s the problem then?

The IT law firm is currently receiving a warning under competition law, complaining about the presentation of the mandatory nutritional information in accordance with the Food Information Ordinance (LMIV) for a food item offered via Amazon.

The warning complains that the nutritional information can only be found in the form of a continuous text in the item description.

However, the nutritional information must be presented in tabular form in accordance with the LMIV specifications.

In this case, it is not a question of the fact that mandatory information is missing according to the LMIV.

The “Big7” nutritional values ​​are mentioned in the offer.

Rather, this is a purely “formal” violation because the visual representation of the nutritional information does not meet the legal requirements.

Sellers of food not only have to ensure that all mandatory information is included in the respective offer, but also that these are presented in a formally correct manner in order to avoid problems such as warnings.

The warning person sees the lack of tabular presentation of the nutritional information as a breach of competition law that can be warned, because this provides the consumer with essential information in the sense of § 5b para. 4 UWG would be withheld. This is unfair within the meaning of Section 5a Paragraph 1 UWG.

As a result of the warning, the person warned should not only cover warning costs amounting to several hundred euros, but should also sign a cease-and-desist declaration that is subject to penalty.

With such a cease and desist declaration, the person being warned would contractually undertake to refrain from presenting the nutritional information for a food item in tabular form in the future.

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Even a single breach of this obligation, for example due to negligence, would then result in the obligation to pay a so-called contractual penalty. This usually involves a medium, four-digit amount – per violation. It is not uncommon for a flat rate penalty of 5,000 euros to be demanded for each violation.

Especially with Amazon offers, this would amount to an incalculable economic risk. Finally, third-party retailers who are attached to the same listing can make changes to the content of the offer and thus also the nutritional declaration at any time, for example if they find a table visually disturbing, they can delete the formatting so that the information would (again) only appear in the running text.

If there are a number of grocery offers on Amazon, numerous violations of a promise to cease and desist can quickly occur.

What does tabular form mean?

The provision of Article 34 Paragraph 2 LMIV stipulates that nutritional labeling must generally be presented in a table.

This means that it is necessary to list the individual calorific value and nutrient quantities in tabular form based on the respective calorific value or nutrient.

Mandatory content of the nutritional labeling and voluntary additional information must be provided together in a table.

The table would therefore have to be designed as follows:

Tabular form within the meaning of this regulation means that the individual nutritional information must be presented separately from one another and not cumulatively next to each other in a continuous text.

The term tabular form therefore means a vertical and not a horizontal tabular representation.

You can find comprehensive information about selling food here Guideline.

Exception: Insufficient space for vertical table

Deviations from the legal requirement shown may only be made if there is a lack of space that would prevent a vertical, tabular presentation.

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Only then (this is an exceptional provision) is the representation “one after the other” permitted.

If the retailer wants to present the nutritional values ​​one after the other, they should have good reasons for doing so. In case of doubt, he must be able to prove that technical reasons prevent the implementation of a vertical table form, as he is citing an exception, the requirements of which he must be able to prove.

Such a relevant lack of space is conceivable, for example in the context of an app display or in the context of mobile display-optimized offers.

In any case, an argument purely for optical reasons for eliminating the intended vertical table form is not sufficient. Rather, there actually doesn’t have to be enough space. Just because such a table may appear visually disturbing, it should not be omitted.

In other words: In your own online shop and on common, web-based sales platforms (such as Amazon and eBay), there is no way around the vertical table for nutritional information.

The information is still there – violation of competition law?

The specifications mentioned seem a bit like mere formality, the nutritional information is all there and is correct in terms of content, but visually it has not been put into the intended table form.

Therefore, one or two readers will ask themselves where the warned violation of competition law should lie. After all, the essential information required is not withheld at all, it is just not presented in the desired visual design.

As far as can be seen, there is still no case law on this topic.

However, there is a strong fear that a court will agree with the arguments of the warning here and confirm that there is a competition violation in the (merely) text-like presentation of the nutritional information.

After all, these are European legal requirements in a prime case of consumer protection law, whose clear, formal requirements were disregarded. There is therefore some evidence to suggest that the warning person is likely to be successful in court.

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Conclusion:

Stay away from presenting nutritional information in the form of continuous text!

The nutritional values ​​must be presented in tabular form, one below the other, unless there is actually such an extreme lack of space that this is not possible in exceptional cases.

This is therefore not a “can-do” regulation. Purely visual reasons are not sufficient to deviate from the vertical table form.

On Amazon in particular, there are likely to be thousands of such incorrectly “formatted” nutritional information and thus a fertile breeding ground for corresponding warnings.

At Amazon there is also the annoying, structural problem that the individual retailer is never (permanently) in control of the design of the offer to which he depends. All too often, third-party retailers or Amazon itself mess around with the item descriptions.

If someone is bothered by the space-consuming table with the nutrients, it is quickly transformed into continuous text.

Anyone who has signed a cease and desist declaration will quickly find themselves in the devil’s kitchen.

She

are online retailers who want to appear and sell legally compliant on the Internet, present a professional and legally impeccable appearance to their customers, and effectively and permanently avoid annoying and expensive warnings? We are happy to support you at any time – with our protection packages

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