By a judgement dated 31 January 2012, the French Supreme Court (Cour de Cassation) upheld a judgment of the Court of Appeals of Paris which ruled that the display of fruit pictures on the packaging of yogurts, where the yogurts were artificially flavoured, was capable of misleading consumers and constituted unfair competition.
In this case, Lactalis sold a variety of artificially flavoured yogurts and other dairies under the brand La Laitière. Andros, a competitor, sued Lactalis for unfair competition claiming that by selling its products at a lower price, Lactalis undermined the Bonne Maman dairies sold by Andros, which include natural ingredients. Andros requested the payment of € 1,000,000 as damages as well as the interdiction, under penalty of € 1,000 per infraction, to sell the products.
The Court of Appeals of Paris noted that competition law is made to the ultimate benefit of consumers. Therefore, any representation that may mislead the consumer on the nature and the quality of the product constitutes unfair competition. The Court stated that the representation of the actual fruit corresponding to the flavouring on the package, although the product is flavoured by artificial flavour, is misleading for the consumer who, in view of the representation of the fruit, may reasonably believe that the taste derives from natural aroma. The fact that the La Laitière products clearly mentioned that they only had the flavour of the corresponding fruits (“saveur citron, saveur coco, saveur fraise des bois…) and that the drawing of the fruit was not necessarily realistic was not deemed relevant, since the wording “lemon flavour” has no legal definition and the mere representation of the fruit is sufficient to create a confusion in the mind of the consumer.
Moreover, even if there is natural flavouring, as was the case in the coffee cream pots sold by La Laitière, the Court ruled that if the natural flavouring represents only a small part of the flavouring substances, the representation of the corresponding fruit is also misleading (e.g. the coffee cream contained only 0.7 % of coffee extract, which was not sufficient to give to the product the taste of coffee, such taste being obtained through the artificial aroma).
The Court of Appeals stated that this practice resulted in unfair competition to the detriment of Andros, who was awarded € 100.000 of damages, and forbade Lactalis to sell the dairies with the representation of the fruits under a penalty of € 500 per infraction.
It seems likely that this case law will have a wide application and that, from now on, the French authorities will consider that any representation of a fruit is misleading if the product is not fully flavoured by natural flavour but by artificial flavour.
