Justified exceptions
Article 6(2)(c) allows traders to (continue to) market goods that significantly differ in composition or characteristics as being identical when this is justified by ‘legitimate and objective factors’. A non-exhaustive indicative list of such factors is mentioned in recital 53 of Directive (EU) 2019/2161, namely: national legal requirements; availability/seasonality of raw materials; and voluntary strategies to improve access to healthy and nutritious food, as well as the traders’ right to offer goods of the same brand in packages of different weight or volume in different geographical markets. Indeed, national rules may set specific requirements as to the composition of certain types of food sold in some countries, which do not exist in other Member States. Also, there may be objective differences in sourcing due to the geographical and/or seasonal availability of raw materials that have an effect on the composition and/or taste of products. Traders may also introduce new recipes under voluntary nutritional reformulation policies, which cannot technically or economically be done simultaneously in all markets. Furthermore, since the examples mentioned in recital 53 of Directive (EU) 2019/2161 are non-exhaustive, the differentiation of goods marketed in different Member States could also be justified by other objective factors. The merits of any justification advanced by traders for the differentiation of goods would have to be assessed on a case-by-case basis. Traders must demonstrate the validity of the exception. In particular, where a trader tailors the national versions of products to local consumer preferences, it must be in a position to demonstrate (by means of, for example, economic or market studies) the existence of consumer preferences and that the product differentiation genuinely addresses those preferences. Recital 53 to Directive (EU) 2019/2161 stresses that traders who differentiate the versions of their goods due to legitimate and objective factors should still inform consumers thereof. While the method to provide such information is left to the traders, the recital states that alternatives to the label of goods should generally be preferred by traders. Such other means can be information at the retailer premises/on online selling interfaces, product websites (that should be easily and directly accessible by, e.g. scanning a QR code on the packaging) or product advertising. In any case, the information should be easily and directly accessible for the average consumer, including for vulnerable consumers. By active and transparent communication about the differentiation of goods through these other means, traders will not only inform consumers but also make it clear to them and national enforcement authorities that it considers the continued marketing of the relevant goods as identical to be justified in accordance with the UCPD. Moreover, there should also be commercial interest in such active and transparent communication, in particular, where the differentiation of the versions of the good is truly implemented with the purpose of meeting national legal requirements or improving consumer experience. The trader’s claims about the justification of marketing the goods as being identical despite their significant differences fall under Article 12 of the UCPD. Article 12 provides that Member States must empower national courts and authorities to require evidence from traders substantiating their factual claims. This power should also apply to traders’ claims about the justification of differentiation.
Source: EUR-Lex (Cellar) · retrieved 2026-09-25 · Text as adopted (Official Journal); later amendments are not incorporated in this text.