French Nutri-Score Case Could Reshape Food Labeling Across Europe

A legal challenge by dairy giant Lactalis to the latest update of Nutri-Score could force the European Union’s highest court to clarify how much freedom member states have in designing front-of-pack nutrition labels.

Bregt Raus, an attorney specializing in intellectual property and E.U. regulatory affairs, said the dispute goes to the heart of how European food-labeling rules should be interpreted.

Should the court say Lactalis is right, and it’s a straitjacket, then all front-of-pack labeling that works as a synthetic score is basically violating the law.– Bregt Raus, Attorney

“Technically, you could say the procedure is about the Nutri-Score update,” Raus told Olive Oil Times. “But I think the arguments have a broader impact. They challenge Nutri-Score at its essence and not really at the update.”

Nutri-Score is a traffic-light-style front-of-pack labeling system that uses five letters and corresponding colors to rate the nutritional profile of packaged food. A green A indicates the healthiest option, while a red E denotes the least healthy.

France’s Conseil d’État, the country’s highest administrative court, did not strike down Nutri-Score in its June 16 decision.

The court rejected several arguments Lactalis brought against the French decree adopting the updated label. However, it found that two questions concerning the interpretation of Article 35 of the Food Information to Consumers Regulation (1169/2011) were serious enough to refer to the Court of Justice of the European Union.

The Conseil d’État suspended its proceedings until the E.U. court rules on those questions.

“In order to correctly frame the issue, one could look at it from a very legal, technical point of view, but I think we should zoom out a little bit,” Raus said.

Under the regulation, Article 9 requires most food products to carry a nutrition declaration. Article 30 defines what that declaration must contain: energy value and the amounts of fat, saturated fat, carbohydrates, sugars, protein and salt.

“That’s what all consumers know,” Raus said. “It’s a little table that says: this is how many carbohydrates, how many fats and so on. A table which most producers place on the back of their packages.”

The legal dispute centers on Article 35, which allows the energy value and nutrient quantities in the mandatory declaration to be expressed or presented in additional ways, including through graphics or symbols, provided certain criteria are met.

“Article 35 has a really vague title,” Raus said. “It’s called Additional Forms of Expression and Presentation.”

He said the vagueness reflects the political history of the regulation.

“The regulation is from 2011, but the Commission started working on it in 2008,” Raus said. “Initially, the Commission proposed mandatory front-of-pack labeling. Their rationale was: let’s make this part of E.U. law because it’s important for consumers. But it turned out that that was very politically sensitive, as it still is today.”

Article 35 emerged as a compromise, and its ambiguity is now at the center of the case.

“Lactalis is basically saying that front-of-pack labeling, if advised by a member state, needs to be under Article 35,” Raus said. “And that means it needs to follow the logic of the regulation.”

Lactalis argues that the French decree violates Article 35 because Nutri-Score does not distinguish between energy value and nutrient quantities in the same way as the mandatory nutrition declaration.

The company also argues that Nutri-Score considers factors including the proportion of fruits, vegetables and nuts, as well as sweeteners, none of which appear in Article 30’s list for the mandatory declaration.

Under that interpretation, Article 35 gives member states little room to design simplified nutrition labels.

“The regulation gives member states a straitjacket. It needs to be within the logic of the regulation,” Raus said, summarizing Lactalis’ argument.

In practical terms, Lactalis is challenging not only the updated French algorithm but also the idea that a member state may recommend a synthetic front-of-pack score summarizing a food’s overall nutritional profile in a single letter and color.

“According to Lactalis, Nutri-Score is also about sweeteners and it’s about the amount of vegetables and fruits,” Raus said. “But that is not the logic of the regulation, because the logic of the regulation is carbohydrates, proteins, salts…”

The French government takes the opposite position.

According to Raus, France argues that Article 35 was intended to allow member states to recommend additional ways of expressing nutrition information, provided they meet the regulation’s requirements for scientific validity, consumer understanding, objectivity and non-discrimination.

“The French government is basically saying: no, you’re misunderstanding,” Raus said. “The whole point of Article 35 is that we know member states may want to advise front-of-pack labeling. And so we’re going to give you some guidelines.”

Under that interpretation, Article 35 is a framework rather than a legal straitjacket.

The Court of Justice must now decide whether Article 35 permits the overall nutritional value of a food to be presented in a simplified, synthetic form. It must also consider whether such a system may account for or display elements beyond those listed in the mandatory nutrition declaration.

“This is a preliminary ruling,” Raus said. “So that means that they will interpret the meaning of Article 35. And that interpretation will apply across the European Union.”

“Should the court say Lactalis is right, and it’s a straitjacket, then all front-of-pack labeling that works as a synthetic score is basically violating the law,” he added.

However, the Brussels-based attorney cautioned that the court may avoid issuing a sweeping ruling.

“It is a sensitive issue, and the judges could decide to give general principles and leave much of the practical application to the Conseil d’État,” Raus said. “They could also write the ruling in a way that keeps the decision closely tied to the French case.”

The case follows years of disagreement over nutrition labeling in the European Union.

Nutri-Score has been adopted or endorsed by several countries, including France and Germany. Italy has strongly opposed the label, arguing that it penalizes traditional foods and oversimplifies nutrition.

Supporters of Nutri-Score view the Lactalis challenge as part of a broader effort by sections of the food industry to weaken the label.

Serge Hercberg, one of the scientists behind Nutri-Score, told Olive Oil Times that studies have shown the label is well understood by consumers and helps them make healthier food choices.

“In France, Nutri-Score is supported by the National Academy of Medicine, as well as 45 scientific societies and professional organizations representing tens of thousands of experts in nutrition, dietetics, diabetology, oncology, cardiology, public health, pediatrics, endocrinology, medicine, pharmacy and dentistry,” Hercberg said.

“These are health professionals with strong legitimacy to speak on matters of health promotion and chronic disease prevention,” he added.

Nutri-Score was adopted relatively quickly in France and several other E.U. countries during its first few years. However, the system has faced increased scrutiny since the latest update to its classification algorithm.

Several major food companies, including some that supported the original version, have since distanced themselves from the label.

For now, the case remains in Luxembourg, where the Court of Justice is based, and a ruling is not expected soon.

“On average, we are seeing that preliminary rulings are now taking about 17 months,” Raus said.