176 WINE LAW incomprehensible information22. The Teekanne decision, in which such an assumption was made, has often been heralded as a turning point in the jurisprudence of the Court, which finally takes the findings of behavioural economics into consideration23. The Court’s stance must be out in the context of the general law on food labelling set forth by Regulation 1169/2011 on the provision of food information to customers, whose general objective is to “pursue a high level of protection of consumers’ health and interests by providing a basis for final consumers to make informed choices and to make safe use of food, with particular regard to health, economic, environmental, social and ethical considerations” (art. 3). From the European regulator’s perspective, this is primarily achieved by providing mandatory label information (art. 9), such as stating that all ingredients and composition of a food item must show on the label. While this approach seems to pose the risk of information overload, there is also the issue of freedom of speech granted to food manufacturers, which may have a further impact on the effectiveness of the information24. Likewise, the obscurity of some food ingredients and advertising claims on labels certainly do not help customers in making an “informed choice”. It is certainly true that Regulation 1169/2011 sets certain limits to mandatory information, which should only be restricted to what may be considered necessary by the average consumer (art. 4); however, additional items of information may be added voluntarily by producers25, which may add to the consumer’s confusion. Overall, as scholars have highlighted, consumer attention is a limited resource26 and is also subject to “selective nudging” by producers wishing to address consumer behaviour27. In our opinion, while the EU legislator’s dilemma can be understood, regulation on food labelling is largely unsatisfactory. Consumers are likely to be loaded with unnecessary and/or confusing information that may be correct, 22 ECJ C 361/15. 23 H. SCHEBESTA & K. PURNHAGEN, The Behaviour of the Average Consumer: A Little Less Normativity and a Little More Reality in the Court’s Case Law? Reflections on Teekanne, in European Law Review, 2016. 24 E. VAN DER ZEE, Legal Limits on Food Labelling Law: Comparative Analysis of the EU and USA, in Wageningen Working Paper, Law and Governance, 2015/1. 25 K. PURNHAGEN, Mapping Private Regulation-Classification, Market Access and Market Closure Policy and Law’s Response, in Journal of World Trade, 2015. 26 E. VAN HARPEN & H. VAN TRIP, EU Health Claims: A Consumer Perspective, in Regulating and Managing Food Safety in the EU, ed. by H. Bremmers & K. Purnhagen, Berlin, 2018. 27 EU Policy Department for Citizens’ Rights and Constitutional Affairs, Food Labelling for Consumers. EU Law, Regulation and Policy Options, PE 608.871, April 2019. Some studies have also stressed that visual information is more effective than text information, especially when consumers are shopping and their time is hence limited (T. L. CHILDERS & M. J. HOUSTON, Conditions for a Picture-Superiority Effect on Consumer Memory, in Journal of Consumer Research, 1984).
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