How we make things at home (eBook)

BERND ROSSKOTHEN

Even though food law is basically harmonised in the EU, there are ‘specialities’ for which Austria is known as a culinary region and which have developed over the centuries. Labelling / marketing must be based on the Austrian legal framework and consumer understanding.

Framework

According to § 5 LMSVG (Lebensmittelsicherheits- und Verbrauch-erschutzgesetz – Act on Food Safety and Consumer Protection) it is forbidden to place food on the market with information that could be misleading, especially with regard to the quality of the food such as type, identity, composition, quantity, shelf life, country of origin or place of origin and method of manufacture or production. This special provision applicable to foodstuffs is accompanied by the general ban on misleading information in § 2 UWG (Gesetz gegen den unlauteren Wettbewerb – Act again Unfair Competition) and is applied cumulatively in processes. Whether or not a misleading nature exists must be examined on a case-by-case basis on the basis of the following guidelines and any case law issued. In any case, all these details are to be regarded as “voluntary details” and are subject to the provisions of Article 36 FIR. In the context of the Austrian Food Code, a guideline (Annex 6) on the non-deceptive presentation of voluntary claims referring to Austria has been issued. However, this guideline is not particularly meaningful. Whether a voluntary declaration is free of deception according to the public opinion, in particular according to consumer expectations, depends on a number of aspects, such as the manufacturing process and technology, the nature of the goods themselves, the essential and characteristic ingredients, the origin and provenance of the ingredients. Within this framework, the critical examination of the freedom from deception of designations such as “product from Austria”, “typical Austria”, “speciality from Austria”, “traditional from Austria” etc. is carried out.

Traditional foodstuffs

The Federal Ministry for Sustainability and Tourism has published a register on traditional foods. The aim of this register is to collect, make public and preserve the traditional knowledge of Austria’s culinary heritage. It contains products and dishes that have been cultivated or processed in Austria with traditional knowledge for at least three generations or 75 years. Foodstuffs which fulfil these criteria in Austria are marketed in so-called umbrella brands by regional associations which use their own guidelines for the use of their labels.

Example Alpacher Heumilchkäse: The production of hay-milk and its further processing has a long tradition in Austria. Already in the Middle Ages, cheeses were made from hay milk on so-called “Schwaighöfen” in the foothills of the Alps and in the mountains of Tyrol. In the 16th century the Alpachtal region was already known for the hay feeding of dairy cows and for the production of fat cheese. Hay milk is therefore defined as cow’s milk coming from mother animals from farms that have committed themselves to complying with the regulations (guidelines).

Handicraft / homemade

According to Austrian case law11, the assertion/labelling that a product is homemade or handcrafted is likely to influence the purchase decision of an average consumer. This is certainly true for food. The literature in Austria has also expressly affirmed this. According to a judgement in case law, the consumer expectation is a quality characteristic of an organic product. In the case of bread, it indicated that the majority of the dough was produced by the company itself or its respective branches. To sell dough pieces from a third supplier (from abroad) as homemade, handmade or homemade is incompatible with consumer expectations and misleading.

Natural

With regard to the term “natural”, Austrian jurisprudence still quotes the CJEU “Strawberry” D’Arbo case12 as the guiding judgement. Accordingly, “naturally pure” is not understood to mean, for example, that a product, such as jam, would be produced entirely without an additive. However, the term means that a product was manufactured without the use of chemicals and that the ingredients were also used without any chemical modification.13

Pure

“Pur” is a synonym for “pure”. It means 100 % purity. There is no relevant Austrian decision on this. The Austrian food book does not give a definition either. Only in Chapter B23 of the Codex Alimentarius Austriacus is it described under “spirits” in the traditional Austrian “Inländerrum” that this is also enjoyed “pure” – this means without mixing. From this description in the food book, it can be concluded that the marketing opinion is “100 %” and a legal assessment can be made.

Fresh

The labelling “fresh” is used in Austria for milk and dairy products as well as for fish, meat, bakery products and other products. According to the Chapter B32 of the Codex Alimentarius Austriacus for milk and milk products, drinking milk may be described as “fresh for longer” if there is no more than 72 hours between the extraction of the raw milk and the heat treatment. Where the term “longer fresh” is used, the date of minimum durability may not be more than 25 days after the day of heat treatment.

According to Chapter B18 of the Codex Alimentarius Austriacus for bakery products, pre-baked or partially baked bakery products which have been made storable by deep-freezing or other physical preservation processes and which have undergone a baking process before consumption may be described as “fresh”. According to Chapter B32, point 3.3.2.2, the term “fresh cheese” is defined as the name of a cheese group according to its water content (size 73 %) or fat content (up to 5 % of FIT).

“Farmer”

The Codex Alimentarius Austriacus also has a guideline in Appendix 7 on the non-deceptive presentation of voluntary claims with reference to “farmer”.

Many foodstuffs on the Austrian market voluntarily bear direct or indirect references to farmers. These represent a connection between the product and the person or farm, the farm’s own raw materials or the production method or recipe; also from commercial or industrial production. Different products can be labelled with the additional designation “farmer”. All have the following in common:

1. The designations were already customary and defined before Austria entered the European Economic Area (EEA).
2. These products have their origins in traditional recipes (those are recipes which have existed for at least 75 years or three generations) and which originate from the rural environment.

In fact, these references are no longer used today as references to production by farmers according to traditional farming recipes, but rather define a certain quality. If the term is not presented as such in the food book (e.g. “farmer’s bread”), a non-rural production is to be clarified by appropriate references.

In this context, a distinction is made in the Codex Alimentarius Austriacus. Additional information such as “from the farmer” or “original building product” or “produced by the farmer” or similar are clear indications of actual production by farmers. On the other hand, codified products are produced by predominant producers who cannot be attributed to direct marketing by farmers. Codified products with the additional indication “farmer” in the designation do not therefore mean that the consumer expects a farmer’s production or from farmer’s raw materials, but only a certain type of production or a certain recipe. However, products from direct marketing by farmers must meet the criteria of farm production and their own farm raw materials. Therefore, products bearing the indication “farmer” and suggesting a farmer’s production on the basis of their overall presentation (presentation, presentation form and circumstances of the levy) also have to be provided with clarifying indications indicating commercial industrial production or the origin of the raw materials.

Mountain Pasture/mountain

Codex Alimentarius Austriacus Guideline Appendix 8 on the fraud-free presentation of voluntary indications referring to mountain / alpine pasture / Alps and the delimitation of the quality indication “mountain product”:

There are foodstuffs on the Austrian market that refer to mountains, alpine pastures or the Alps. Foods labelled in this way must be assessed in accordance with the provisions of food law with regard to misleading and deception protection. The following aspects may be relevant:

• Origin
• Origin of ingredients
• Place of processing
• Manufacturing method and technology
• Make and recipe
• etc.

The Austrian food register has laid down the following names:

Austrian alpine and mountain cheese, alpine cheese, mountain cheese and mountain salami, which are mainly defined according to their type. The word parts such as mountain, alpine pasture,...