Promoting animal welfare

How to Advertise the Happy Cow

Food producers and retailers have recently been placing greater emphasis on the welfare of the animals that are the source of their goods – an extra effort they want to communicate to the consumer. However, there are pitfalls when promoting animal welfare for food products.

Legal Framework

The European food industry is subject to several EU regulations providing for a harmonised legal framework, but its complexity makes the food sector heavily regulated.

On the one hand, the general food market is regulated by Food Information Regulation No. 1169/2011 that determines which information on foodstuffs may be presented to consumers and how. The relevant provisions are supplemented by several regulations, such as how to indicate the origin of a food product and its ingredients (Implementing Regulation No. 2018/775), and how to market eggs (Regulation No. 589/2008) and poultry meat (Regulation No. 543/2008).

On the other hand, the EU regulates the organic food market via the Organic Products Regulation No. 2018/848, which establishes high standards for organic food, and the Implementing Regulation on Organic Products No. 2020/646, which specifies the requirements set out in the EU Organic Products Regulation.

Thus, when it comes to labelling and promoting food products, a wide spectrum of legal provisions should be observed, requiring in-depth knowledge and understanding of the applicable legal framework.

Pitfalls in the Advertising of Animal Welfare

The main risk when advertising foodstuff is that advertising statements might mislead consumers. Misleading claims are inadmissible: claims must not be misleading either by way of what they include or what they omit. Thus, advertising claims must be truthful, accurate, clear, unambiguous and substantiated.

In particular, consumers may not be misled on the characteristics of the product. The welfare of an animal, which is the source of a product, may be considered a relevant characteristic of a foodstuff. If an advertising statement misleads the consumer about the animal welfare-related qualities of the product, the promotion will be considered inadmissible. Hence, any advertisement of animal welfare regarding a product must be factually correct and all relevant information must be presented to the consumer. For example, inaccurate information about the extent to which the animals are allowed to roam freely on grazing land can mislead the consumer.

Moreover, if the animal-related qualities of a product are stipulated by a EU regulation, they may not be highlighted in the advertisement. If obligatory characteristics are advertised, consumers may get the wrong impression that the product in question has an advantage over other products while in fact the advertised characteristics are standard and compulsory. As a result, the consumer would be misled. Hence, when promoting food products, animal-friendly production methods, which are compulsory for any organic product due to the applicable legal framework, may not be advertised. For example, a German court (OLG Oldenburg 1 U 6/10) found the advertisement of “animal-friendly husbandry” to be inadmissible since the relevant husbandry only met standard legal requirements but offered no additional benefit for the animals. At the same time, advertising statements on animal welfare must not give the impression that a product is organic if the standards of the EU Organic Products Regulation have not been met.

In summary, advertising qualities of foodstuff can be tricky due to the wide spectrum of applicable, heavily complex regulations, In short, there is a high risk of misleading the consumer.

Consequences of Non-Compliance

Generally speaking, the burden of substantiating marketing claims lies with the advertiser. Thus, if advertisers are unable to provide adequate substantiation, then the claimant will be successful. Moreover, unclear statements will be interpreted to the detriment of the advertiser.

In case of inadmissible advertisement statements, competitors or certain associations (e.g. consumer protection associations) may take legal action against the advertiser and claim for injunctive relief, removal, damages and publication of a judgment. In addition, many consumer protection associations have announced that they will act against misleading claims when it comes to sustainability and/or environmental claims. This should also lead to a heightened attention for claims on animal welfare.  

Furthermore, misleading food advertisement is subject to administrative penalties (up to EUR 50,000, and EUR 100,000 for repeated cases). Thus, falling into the pitfalls described above can lead to severe consequences.