Homemade taste as a subject matter in Food Law

March 23, 2017
Jakub M. Doliński

There is no legal term for „homemade taste” – in common language we say that some homemade food product was made directly from provider’s house kitchen. Homemade taste as a colloquialism appoints to the customer that ordered meal/product would be prepared only on natural components and flavored only by natural spices. This lack of proper legal definition to describe homemade taste may lead to unfair practice, where consumer would be misled by untruthful information suggesting that a certain product has natural properties, specific for home cooking, while it’s real components are additives belonging to the group of thickeners.

This issue was a subject matter of Polish Supreme Administrative Court’s judgment of 16th December 2014 (signature: II GSK 2033/13). This case was a claim for The Major Inspectorate to Mercantile Quality of Agricultural-Food Products that imposed a punishment for marketing a product of an unsuitable trading quality. Inspectorate indicated that producer has placed on ketchup’s package an information about it’s „homemade taste”, while product was made on thickeners (E412 and E1422). The Supreme Administrative Court predicated that casual consumer may understand the term „homemade” as a groceries prepared in a domestic kitchen, in a way that reflects a typical domestic situation and based only on a natural ingredients. Therefore the term “homemade” must be restricted to the preparation of the recipe on the premises, from primary ingredients in a way that reflects a typical domestic situation. The Court in it’s judgment justifies that “information on the product’s package was suggesting to consumer, that it was made by <<homemade>> method which cannot be true cause of thickeners in it’s composition that transforms whole consistence and taste of groceries. can leave no doubt. The label on the packaging should reflect composition declared by the producer of the groceries and leave no doubt as to its properties.”

According to article 45 section 2, article 46 section 1 point 1 and article 48 section 1 of The Polish Food Security Act (Food Law Act) of 25th August 2006, there is a general obligation to mark a market groceries with information about it, that may not mislead a consumer (especially about it’s characteristics of the groceries including its name, type, properties, composition, quantity, durability, origin or place of provenance, method of manufacture or production, by attributing to the food effects or properties that it does not have, by suggesting that a food has particular properties, when all similar groceries possess such properties. Similar solutions were mentioned in
Regulation (EC) No 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety. According to it’s article 8, food law shall aim at the protection of the interests of consumers and shall provide a basis for consumers to make informed choices in relation to the foods they consume – it shall aim at the prevention of fraudulent or deceptive practices, the adulteration of food and any other practices which may mislead the consumer. What is essence of questioned case is the article 16 of this Regulation, which stays that without prejudice to more specific provisions of food law, the labeling, advertising and presentation of food or feed, including their shape, appearance or packaging, the packaging materials used, the manner in which they are arranged and the setting in which they are displayed, and the information which is made available about them through whatever medium, shall not mislead consumers. The Supreme Administrative Court of Poland in it’s judgment according to “homemade taste” based on quoted regulations, but it is also worth to mention that article 3 section 2 of Polish Unfair Competition Act of 16th April 1993 focuses on many forms of unfair competition actions – including false misleading consumer about product’s quality.

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