The legally compliant sale of food over the Internet is challenging. The warning people also know this. A very popular gateway for warnings is missing or incorrect information about the responsible food business operator. The Brandenburg Higher Regional Court recently decided that simply specifying a company without a job title is not enough in this regard.
What is it about?
The Food Information Ordinance (LMIV for short) also stipulates numerous information obligations for the distance selling of food, which the retailer must then fulfill to the consumer online, i.e. before the food is delivered.
The provision of Article 14 Para. 1 LMIV prescribes the following for distance selling:
1. Without prejudice to the information requirements arising from Article 9, in the case of pre-packaged foodstuffs offered for sale using distance communication techniques:
(a) Mandatory food information, other than the information referred to in Article 9(1)(f), must be available before the conclusion of the sales contract and must appear on the distance selling medium or be provided by other appropriate means to be clearly indicated by the food business operator. If other appropriate means are used, the mandatory food information shall be provided without the food business operator charging consumers any additional costs;
b) all mandatory information must be available at the time of delivery.
By referring to Article 9 of the LMIV, with the exception of the information in accordance with Article 9 Paragraph 1 Letter f LMIV, it follows that the following information about the food must already be provided online:
• name of the food;
• List of ingredients;
• all ingredients and processing aids listed in Annex II to the LMIV as well as ingredients and processing aids that are derivatives of a substance or product listed in Annex II to the LMIV that are used in the manufacture or preparation of a food and are present in the final product, if necessary in a modified form and which trigger allergies and intolerances;
• the amount of particular ingredients or classes of ingredients;
• the net filling quantity of the food;
• special storage and/or usage instructions, if applicable;
• the name or company and address of the food business operator in accordance with Article 8 paragraph 1 LMIV;
• the country or place of origin where this is provided for in Article 26 LMIV;
• an instruction manual if it would be difficult to use the food appropriately without one;
• for drinks with an alcohol content of more than 1.2 percent by volume, the actual alcohol content in percent by volume;
• a nutritional declaration.
However, it is not mandatory to specify the best-before or use-by date in distance selling.
Especially if the seller is not a provider firmly established in the food industry, the LMIV’s requirements for labeling online offers can be quite challenging for the retailer.
The problem is that if one of the mandatory details is missing or if one of the details is incorrect, there is a lack of information, which generally also represents a breach of competition law that requires warning.
Again and again: Missing information about the responsible food business operator
The specialized lawyers at the IT law firm have already had thousands of sales presences in recent years subjected to intensive legal examination in order to protect clients as best as possible from warnings.
When it comes to offering food, it is noticeable that the mandatory information about the responsible food business operator is often neglected.
This information is intended to provide the consumer with a direct contact person regarding the food safety of the food on offer, for example if problems or even damage arise as a result of consuming it.
It is important that the name or company and address of the responsible food business operator for the specific food being offered must always be mentioned.
Many retailers are of the opinion, especially when it comes to branded products, that the person responsible is known to the customer, for example because the brand of the food is stated.
If the information about the responsible food business operator is missing or is formally incorrect, this clearly represents a violation of competition law. Competition associations in particular stubbornly warn against such deficiencies under competition law.
Simply stating the company and address without a job title is not enough
The OLG Brandenburg now had to deal with exactly the consequences of such an association warning in the appeal instance.
The defendant, who had previously been warned by a trade association, had offered canned drinks from the USA via the Amazon sales platform. The disputed offer did not contain any express information about the person responsible for the food business within the meaning of Article 8 Paragraph 1 LMIV.
However, the name of the defendant’s company, which, as an EU importer of the food originating from the USA, would be classified as the responsible food business operator in accordance with Article 8 Paragraph 1 LMIV, was mentioned in the offer on Amazon under the indication “Sales and shipping by”. . At the same time, by clicking on this information about the company name, you could go to a page on Amazon, which also contained the company’s imprint, in which the full company name and full address were given.
This was not enough for the trade association because it was not clear to the consumer what function the company designated as the seller had and the information was only accessible via a hyperlink and not directly as part of the disputed offer.
The defendant did not want to issue a cease and desist declaration in response to the warning.
The Potsdam Regional Court ruled in favor of the association in the first instance and sentenced the defendant to cease and desist and reimburse warning costs.
The defendant appealed against this with its appeal to the Brandenburg Higher Regional Court.
In its judgment of October 17, 2023, Ref.: 6 U 88/22, the Senate decided that the defendant’s information did not meet the requirements of the LMIV. The appeal was therefore unsuccessful.
The reason given by the Higher Regional Court was that the function of the specified company as the responsible food business operator must be recognizable to the consumer.
In particular, it is not sufficient if the company in question (as in the case at issue) is only referred to as a seller. From this designation it is not clear to the consumer that the company mentioned not only acts as a seller of the food, but also as a responsible food business operator:
When it comes to distance selling, as the defendant is doing here, the situation is different. In order for the consumer to have access to the information considered necessary according to the LMIV before making a purchase decision, even in distance selling – which is easily possible for the consumer in stationary retail by inspecting it before going to the checkout – Article 14 LMIV stipulates that mandatory information according to Art 9 LMIV must be available on the carrier material of the distance selling transaction or through other suitable means before the purchase contract is concluded. In this situation, however, the consumer still lacks direct access to the goods, so that, unlike in brick-and-mortar stores, he cannot take note of the mandatory information on the packaging or on a label attached to it. If the information in distance selling before the conclusion of the purchase contract does not contain the job title of the person named with the company and address, it is therefore not clear from the circumstances, unlike in stationary retail, whether he is only a retailer or also a person responsible for foodstuffs within the meaning of Art. 8 Paragraph 1 LMIV occurs. This, as well as the designation at issue here only as a seller, is likely to deter consumers from exercising their rights against the defendant as a food business operator.
The Senate no longer had to concern itself with the question of whether simply linking the information about the company and its address was sufficient, since the information was already “unsuitable” due to the lack of a correct function name for the company mentioned there.
The defendant also got a “bloody nose” in the second instance.
Conclusion: It’s always best to include a function name!
If you (also) sell food over the Internet, you should definitely make sure to provide information about the responsible food business operator in accordance with Art. 8 Para. 1 LMIV directly in your respective offer.
However, simply stating the name or company and full address of the responsible food business (e.g. by simply mentioning it like “ Muster GmbH, Musterweg 12, 12345 Musterstadt, Germany”) is not enough to meet the requirements of the LMIV.
Rather, this information should be preceded directly by the functional title “Responsible food business operator” (i.e. in the example: “Responsible food business operator: Muster GmbH, Musterweg 12, 12345 Musterstadt, Germany”).
Otherwise you risk an annoying and expensive warning.
An error that continues to be frequently observed in this context is the indication of a food business operator based outside the EU for imported food. This is expressly not permitted. The consumer must always be provided with a person responsible based in the EU. If you import the food into the EU from a third country, then you are the responsible food business operator within the meaning of the LMIV.
As you can see, selling food over the Internet is complex and subject to warnings.
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