Establishing the differences and whether the goods are marketed as being ‘identical’
According to Article 6(2)(c) UCPD, potentially unfair ‘dual quality’ marketing practices in respect of a good exist where the following two conditions are met: the good is marketed as being identical to the good marketed in other Member States, and the good has significantly different composition or characteristics compared to the good marketed in other Member States. The reference to ‘other Member States’ should be understood as covering one or more Member States besides the one carrying out the enforcement (179). The terms ‘marketing as being identical’ refers to how the goods are presented and perceived by an average consumer. Accordingly, the presentation of the good does not have to be completely identical in all respects in order to be perceived as being identical by an average person. According to recital 53 of Directive (EU) 2019/2161, the competent national authorities should assess whether the differentiation of the good is easily identifiable by consumers by looking at the availability and adequacy of information. When presenting to consumers in different Member States versions of a good with significant differences in their composition or characteristics, traders should put themselves in the position of the average consumer and check whether the average consumer will be likely to perceive those different versions as identical. In this respect, traders can draw inspiration from the existing good marketing practices where companies present different versions of their food products (that are available in parallel in each of the national markets) in a way that make their differences very clear to the consumer, whilst keeping common elements that identify the brand. Since the application of Article 6(2)(c) is triggered by the existence of ‘differences’, it does not require the determination of a ‘good of reference’. Namely, it does not require establishing which of the identically marketed goods is the ‘original’ one and which is the ‘differentiated’ version. All that matters is whether the goods marketed in different Member States significantly differ in their composition or characteristics or not. This also means that it is up to traders to decide how to ensure that the different versions of their good are clearly distinguishable by consumers. To establish the differences with the goods marketed in other Member States, the national enforcement authorities need to compare the available information on the packaging (i.e. on the front-of-pack and label). If the legally required labelling information is found to be incorrect (via laboratory tests), it will be a breach of the EU food regulations in the first place – see further below and in sections 1.2.2 and 3.3.
Source: EUR-Lex (Cellar) · retrieved 2026-09-25 · Text as adopted (Official Journal); later amendments are not incorporated in this text.