How we make things at home - artisanal categories in food law
The notions of traditional, artisanal, natural, homemade, farmhouse, in food law in the Netherlands
Dutch food law is laid down in the Commodities Act (in Dutch: Warenwet) and several Decrees and Regulations based on this Act. The Dutch legislator has chosen not to set strict rules regarding using descriptions as ‘traditional’, ‘artisan’, ‘homemade’, ‘farmhouse’, ‘natural’, ‘authentic’ and ‘pure’. Instead, the Netherlands haven, since the beginning of the sixties, chosen for self-regulation in advertising. The Advertising Code Authority (ACA) is the body dealing with the self-regulating system of advertising. The rules of this Authority are called the Dutch Advertising Code. This Code defines advertising as: ‘any form of public and/or systematic direct or indirect commendation of goods, services and/or ideas by an advertiser or, either wholly or partly, on behalf of him, with or without the help of a third party.’
Food business operators using one of the descriptions mentioned before on the labels of their products are therefore subject to this Code. The Code is divided into a General Section and a Section of Special Advertising. The General Section contains a body of rules with which all advertising should comply. It stipulates the following
art. 2: “Advertising must be in accordance with the law, the truth, good taste and decency.”
art. 7. “Advertising shall not be dishonest. Advertising is considered to be dishonest if it contravenes with the requirements of professional devotion, and if it substantially disrupts or may disrupt the economic behaviour of the average consumer reached, or targeted, as regards to the product. Misleading and/or aggressive advertising is considered to be (by any means) dishonest.”
art. 8.1 “When assessing whether or not an advertisement is misleading, all characteristics and conditions, the factual context, the limitations of the means of communication, and the public for which it is intended are to be taken into consideration.”
art. 8.2 “All advertising including incorrect information, or information that is unclear or ambiguous for the average consumer in respect of one or more elements as listed in points a to g hereunder, and which would consequently entice or may entice the average consumer to make a decision on a transaction which he would otherwise not have made, is considered to be misleading:
a. The existence or the nature of the product;
b. The most important features of the product, such as availability, advantages, risks, design, composition, accessories, service and complaint handling, process and date of production or execution, delivery, suitability for use, quantity, specification, geographic or commercial origin, results to be expected, or the results and essential features of tests and controls performed.
Specifically for food and infant nutrition there are separate sections in the Code. The section on food products stipulates:
‘Art. 4. Commendation of a food product by referring to a certain quality which does not have a distinctive capacity within the relevant group of products is not allowed if the referral is intended to distinguish the Food Product from other products in the same group in a misleading manner.’
According to the explanation given by the ACA, it is however allowed to refer to a general feature. E.g. “Product X is naturally fat free”, as this refers to a common feature of all products in the category.
The section on infant nutrition holds no specific rules on using descriptions as mentioned before. Therefore the general section on food products applies for using these descriptions on infant nutrition.
In essence, the Dutch Advertising Code follows art. 7 of Regulation (EU) No 1169/2011 and gives further guidelines as to how a complaint will be judged.
The case law of the ACA shows that consumers have filed several complaints for using descriptions mentioned before [link]. In these matters the ACA meticulously examines whether the food business operator can use these descriptions on its product. A product that claims to be artisan, should be artisan in fact.
The ACA may determine a complaint unjustified (rejection/not upheld), or determine the complaint justified (upheld). Upheld means that the ACA judges the advertising message to be contrary to the Dutch Advertising Code. The ACA then makes a ‘recommendation’ which means that the ACA recommends to discontinue this way of advertising. Furthermore, as the circumstances warrant, the ACA can distribute a decision as an alert which means that the secretariat will take care that the decision is brought to the attention of the public by means of a press release in associated media, to interested individuals or organizations and via placement on the website of the Reclamecode.
The ACA also examines whether advertisers comply with the decision of the ACA in the event of an infringement. If the advertiser pronounces that he will not comply with the ruling or does not respond to the request of the ACA, then this can be published on the ACA website under the heading 'Non-compliant'. In this way, 'non-compliance' by the advertiser is also brought to the attention of third parties, including the government regulators, such as the Dutch Food and Safety Authority (NVWA). According to the ACA 96% of the companies however follow the given verdict.
What descriptions have been regulated by law?
The word ‘fresh’ (in Dutch: ‘vers’) can be used freely, but is however mentioned in various Commodities Act Decrees. The most important one is art. 13, section 1 of the Dairy (Commodities Act) Decree. The describing words ‘fresh cheese’ may only be used for a cheese that has not matured and of which the protein content in the non-fat dry matter is at least 60%, and the moisture content is at most 87% of non-fat.
According to art. 16 of the Flour and Bread (Commodities Act) Decree the description ‘wholegrain’ (in Dutch: volkoren) may only be used for a product in which the naturally occurring starch rich core, seeds and bran in their natural proportions are present, regardless if the product has undergone processing.
In the Netherlands certain products are permitted as a traditional specialty guaranteed (TSG) based on the Regulation (EC) No 1151/2012. These products can be labeled as ‘traditional’.
Dutch farm cheese is a TSG as long as this cheese is made at a farm with raw milk according to a traditional and controlled procedure. Further Dutch examples are caster sugar, sugar syrup and young herring (‘Hollandse Nieuwe’). As to the latter, only young herring prepared in the traditional Dutch way can be called ‘Hollandse Nieuwe’.