§2.8.5 ‘Dual quality’ marketing

Article 6(2)(c) 2. A commercial practice shall also be regarded as misleading if, in its factual context, taking account of all its features and circumstances, it causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise, and it involves: (…) (c) any marketing of a good, in one Member State, as being identical to a good marketed in other Member States, while that good has significantly different composition or characteristics, unless justified by legitimate and objective factors. The free movement of goods does not necessarily mean that every product must be identical in every corner of the Single Market. Whilst consumers are free to buy the products of their choice, business operators are also free to market and sell goods with different composition or characteristics, provided that they fully respect EU legislation (whether on the safety of products, labelling or other horizontal or sectoral legislation). However, as laid down in recital 52 of Directive (EU) 2019/2161, marketing across Member States of goods as being identical when, in reality, they have a significantly different composition or characteristics may mislead consumers and cause them to take a transactional decision that they would not have taken otherwise. Such marketing practices are often referred to as ‘dual quality’. Therefore, Directive (EU) 2019/2161 introduced in the UCPD a specific provision (Article 6(2)(c)) to address situations where traders market goods in different Member States as being identical whilst in reality they have significant differences in terms of their composition or characteristics, unless justified by legitimate and objective factors. The application of Article 6(2)(c) is based on the objective and apparent circumstances of the presentation and composition or characteristics of the goods concerned. Article 6(2)(c) of the UCPD clarifies the application of the UCPD to misleading ‘dual quality’ marketing practices and provides the national consumer enforcement authorities with a clearer and more specific legal basis to address such misleading practices. This guidance replaces and supersedes the 2017 Commission Notice regarding the application of the (original) UCPD to ‘dual quality’ of food (178). Subject matter and traders concerned Article 6(2)(c) applies only to ‘goods’, which are not defined in the UCPD. The UCPD applies to ‘products’ broadly defined as comprising goods, services and digital content. Therefore, the definition of ‘goods’ in the Sale of Goods Directive (EU) 2019/771 should be applied by analogy. Accordingly, ‘goods’ mean tangible movable items as well as water, gas and electricity in limited volume or set quantity. Consequently, Article 6(2)(c) does not apply to services and digital content, which remain subject to the general UCPD rules on misleading actions or omissions. ‘Dual quality’ marketing practices present most problems in the area of food (including drinks. However, Article 6(2)(c) of the UCPD applies also to other kinds of goods. Article 6(2)(c) applies to ‘marketing’ which is a broad notion including both the presentation of the goods on their packaging, related advertising, and promotions and the selling of the goods to consumers. The primary target group of Article 6(2)(c) are the traders that determine the presentation and composition of the goods concerned. Those are usually the producers, including the owners of ‘private’ labels and retailer brands. The enforcement activities concerning Article 6(2)(c) should, therefore primarily focus on the producers of goods. Mere retailers do not usually have influence on either the composition or the packaging of the goods they sell. Notwithstanding this, once the fact of misleading ‘dual quality’ practices is established with regard to a specific good, the enforcement authorities may also require remedial action from the retailers selling the good in question. In particular, they may require retailers to provide consumers with additional information at the point of sale, thus ensuring that consumers are made aware that the good concerned is not actually identical to the good sold in other countries. As the UCPD does not apply to business-to-business (B2B) relations, it does not regulate the consequences of such enforcement actions in the context of the B2B contractual relations between the retailers and producers. Due to the cross-border nature of ‘dual quality’ cases, the competent authorities must, where applicable, cooperate under the CPC Regulation (EU) 2017/2394. In particular, the CPC Regulation establishes clear mutual assistance obligations between competent authorities to ensure that the authorities of the Member State where the trader is established take the necessary measures to cease infringements which affect consumers in other jurisdictions of the Union. 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: 1. the good is marketed as being identical to the good marketed in other Member States, and 2. 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. Case-by-case assessment and ‘significance’ of the difference According to the general provisions of Article 6 UCPD, marketing of goods with different composition or characteristics as being identical in different Member States is misleading and, therefore, unfair and prohibited, if such marketing is likely to affect the transactional decision of the average consumer. This requires a case-by-case assessment of the commercial practices concerned. The transactional decision test is the cornerstone and pre-requisite for the application of all the main UCPD provisions on unfair commercial practices (i.e. Articles 5 to 9). In this respect, it should be noted that, in the Single Market, consumers have a general understanding that free circulation of goods and equal access to goods is ensured. Especially, brands act in the mind of consumers as a certificate for a controlled and constant quality. Brand advertising and image building efforts contribute to such consumer perception. Moreover, claims such as ‘original’, ‘unique’ and ‘the founder's recipe’ that are frequent on, for example, food packaging further reinforce the brand owner’s message about the good’s uniform characteristics across all the markets. Therefore, consumers do not, a priori, expect branded goods sold in different countries to have different composition or characteristics. Consequently, they could refrain from purchasing the good, had they known that the good offered for sale in their country is different in terms of characteristics or composition from the good offered to consumers in other countries. However, as regards foods, a JRC study of 2020 showed that the differentiation of versions had heterogeneous impact on consumers’ purchase decisions across the studied food products and Member States. Namely, informing consumers about the differentiation of the food products resulted in some cases in their preference for the ‘domestic’ versions, and in some others for the ‘foreign’ versions of the food products (180). The JRC’s report also found that the consumer’s behaviour when confronted with differentiation of goods would also depend on the scale of the difference. The average consumers’ transactional decision is more likely to be affected if they knew that one or a number of key ingredient(s) or their content in, for example, food differs substantially (181). Larger compositional differences are more likely to lead to different sensory characteristics, which are one of the important determinants of food quality for consumers. However, this being said, it is also important to stress that the sensory perception of foods is only one of the elements that may affect consumers’ choices. For example, consumers may also want to avoid certain types of ingredients for various reasons other than those linked to their health (e.g. allergens). In particular, consumers increasingly attach importance to the environmental impact of certain good or their ingredients, their geographical origin, mode of manufacturing, chemical composition, etc. (182) The classification of ‘significant’ and ‘non-significant’ differences cannot be determined in advance as regards, for example, specific ingredients in food. Instead, the ‘significance’ of the difference is an inherent element of the case-by-case assessment of the impact of the ‘dual quality’ marketing practice on the average consumer. It is in this sense – of the impact on the average consumer – that this notion is used in Article 6(2)(c) of the UCPD. 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. Food products EU food legislation applies in parallel with the UCPD and it may be relevant also when dealing with ‘dual quality’ cases, since these appear to happen mainly in the food sector. Specifically, Regulation (EC) No 178/2002 on general food law aims at ensuring a high level of protection of human health and consumers’ interest in relation to food, while ensuring the effective functioning of the internal market. It is the foundation of the Union food law. It establishes, amongst others, common principles of (Union and national) food law as well as responsibilities on food and feed business operators at all stages of production, processing and distribution of food and feed. In that respect, it establishes the protection of consumers’ interests as a general principle of food law (183). Accordingly, food law must aim at the protection of the interests of consumers and must provide a basis for consumers to make informed choices in relation to the foods they consume. In particular, it must aim at the prevention of: (a) fraudulent or deceptive practices; (b) the adulteration of food; and (c) any other practices which may mislead the consumer. It also provides for a general obligation for the labelling, advertising and presentation of food or feed, including their shape, appearance or packaging, the packaging materials used, the manner in which they are arranged, the setting in which they are displaced and the information which is made available about them through whatever medium, imposed on food and feed business operators, not to mislead consumers (184). Only safe food and feed products may be placed on the Union market (185). Finally, food and feed business operators at all stages of production, processing and distribution within the businesses under their control are required to ensure that foods or feeds satisfy all requirements of food law, which are relevant for their activities and must verify that such requirements are met (186). Furthermore, Regulation (EU) No 1169/2011 on the provision of food information to consumers (the FIC Regulation) lays down general labelling rules and requirements, including mandatory provision of a complete list of ingredients, the quantity of certain ingredients or categories of ingredients, allergen information, a nutrition declaration, etc. This enables consumers to be fully informed of the composition of the food products and preventing misleading food information. Food information must be clear, accurate, and easy to understand for the consumer. For that purpose, the FIC Regulation lays down specific requirements for presentation of mandatory information, including minimum font size. EU food law puts in place a comprehensive legal framework aimed at ensuring not only a high level of protection of health of consumers and their social and economic interests, but also the free movement of safe food in the EU Single Market. The information requirements established by the FIC Regulation is ‘material’ information within the meaning of Article 7(5) of the UCPD. The omission of this information could be, after a case-by-case assessment, considered misleading to the extent that it is likely to affect the transactional decisions of the average consumer. Investigation of potentially misleading ‘dual quality’ enforcement practices by the national authorities in charge of the UCPD will normally be based on the information about the product’s composition provided on the packaging in accordance with EU food law requirements (187). However, ‘dual quality’ misleading practices could also occur in cases where the product differences are not apparent from the product label. In these situations, the authorities in charge of food law will check the compliance with the FIC Regulation and the applicable product-specific regulations setting composition standards. In those Member States where different authorities are responsible for enforcing the UCPD and the relevant food legislation, these authorities should co-operate closely to ensure that the findings of their respective investigations into the same trader and/or commercial practice are consistent. Other goods As the prohibition of misleading ‘dual quality’ practices is not restricted to food products, and in light of concerns as regards similar practices in the context of other consumer goods (188), the Commission is conducting, as of 2021, a pilot study in the area of cleaning products, detergents and cosmetics. The objective of this study is to examine whether the above-mentioned common methodology developed by the Joint Research Centre in the area of food products can be extended to compare the composition of such goods as well as the feasibility of creating a monitoring tool for ‘dual quality’ cases by Member States’ competent authorities, NGOs or the industry.

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Source: EUR-Lex (Cellar) · retrieved 2026-09-07