Germany — Information on food products distributed online

Who is responsible for the information on food products distributed on the online food market?

The same rules as in the offline food market apply.

The main applicable law is EU Regulation 1169/2011, also called “The EU Food Information Regulation“. According to its Art. 8 par. 1 the food business operator responsible for the food information shall be the operator under whose name or business name the food is marketed (the “Marketer”).

In case that the operator is not established in the Union, the responsible person is the importer into the Union market.

According to Art. 8 par. 2 of the said Regulation, the Marketer shall ensure the presence and accuracy of the food information in accordance with the applicable EU food information law and also with the requirements of relevant national provisions.

Who bears the main responsibility as food business operator?

The main responsibility for food information is assigned to the food business operator under whose name or business name the foodstuff is marketed.

This applies though only to such information concerning foodstuff which is made available to the final consumer by means of a label, other accompanying material, or any other means including modern technology tools or verbal communication.

Normally, the food business operator is the person, who keeps foodstuff for sale and therefore places such products on the market. According to the EU Food Information Regulation in order to determine the responsibility, it is of decisive importance under whose name the foodstuff is placed on the final consumer market.

Thereby the main responsibility is not any more with the final seller, with the consequence that the responsibility of the retailer is reduced.

A manufacturer who places a foodstuff on the market is therefore the responsible person.

A retailer is not per se a responsible person for the information on the foodstuff. In case the retailer sells food products under a private/own brand, then the responsible person is the one whose name is on the label of the product.

Importers are responsible for the information on the foodstuff if the food business operator under whose name or business name the food is marketed is not domiciliated in the EU.

In case of re-imported foodstuff, the responsible person is the one under whose name and address the foodstuff is offered to the consumer.

In case of a direct delivery of food from a third state (non-EU-state) to a consumer, as this is the case in the online retail, then the importer is the food business operator responsible for the food information.

Up to which extent is the marketer responsible for the information on the food?

The marketer is responsible for the accurateness and the lawfulness of the information on the food product and has to comply with all relevant German and EU laws and regulations.

This concerns not only the provisions of the EU Food Information Regulation, but also other EU regulations on information, such as information obligations which apply only to certain foodstuffs, as well as labelling obligations for additives and so on.

Information which are non-obligatory shall not be misleading, ambiguous or misunderstanding and have to rely on scientific data.

The operator under whose name or business name the food is marketed is responsible for meeting those provisions.

Retailers who are not the operator under whose name the food is marketed do only have to meet a reduced responsibility according to Art. 8 per. 3 to 5 of the EU Food Information Regulation (“The Regulation”).

Who else is responsible?

Food business operators who are not marketers have a reduced responsibility (Art. 8 par. 3 to 5 of the Regulation).

Under certain prerequisites they are responsible for

— known or presumed deficits in labelling (Art. 8 par. 3 of the Regulation)

— any changes they make to food information accompanying a food (Art. 8 par. 4 of the Regulation),

— ensuring compliance with the requirements of food information law and relevant national (in this case German) provisions which are relevant to their activities and verifying that such requirements are met (Art. 8 par. 5 of the Regulation).

Which specific characteristics apply to the upstream trade levels, meaning in B2B relations?

In case of non-prepacked food, the obligations to inform are quite limited. Non-prepacked food is usually intended for the final consumer or for supply to mass caterers.

There is only the obligation to inform about allergen ingredients. The EU Member States are free though to extent the obligation of informing regarding non-prepacked food according to Art. 44 par. 1 b) of the Regulation.

Germany made use of this option in its “Preliminary Regulation for the Addendum of EU Provisions Concerning the Information of Consumers about the Manner of Labelling Allergen Products in Non-Prepacked Food” of 28.11.2014 (Vorläufige Lebensmittelinformations- Ergänzungsverordnung).

When trading with non-prepacked food in the upstream trading levels the information about the food doesn’t have to be mandatory on the product itself. Instead, this information can be given in the accompanying papers of the food product.

The author of this post is Olga Dimopoulou