<TI><P>The presence of residues of lead, cadmium and pesticide</P></TI>42.The other complaints made by the Verein concern the traces of residues of lead, cadmium and pesticide found in d'arbo jam.43.As the Commission has rightly stated, the abovementioned residues are not ingredients of the foodstuff within the meaning of Article 6(4) of Directive 79/112. They do not appear on the list of compulsory particulars set out in Article 3(1) thereof. Directive 79/112 does not therefore require them to be indicated on the packaging of the jam in question.44.It is nevertheless necessary to consider whether, in view of the presence of the abovementioned residues, the description naturally pure is liable to mislead consumers as to the characteristics of the foodstuff within the meaning of Article 2(1)(a)(i) of Directive 79/112.See in this connection the Van der Laan judgment, paragraphs 39 and 40.
45.In this connection, the labelling of d'arbo jam provides some details regarding the method of manufacturing the product.It states that it is made according to a Tyrolean recipe which has been handed down within the Darbo family since 1879. According to that recipe, the jam is heated and stirred carefully, so as to preserve valuable vitamins and the natural aroma of the fruit. The packaging also states that the jam is made from garden strawberries.
46.In the light of this information I think that the description naturally pure is not liable to mislead consumers as regards the method of producing the fruit contained in the foodstuff. In particular, it does not seem to me that the abovementioned description is liable to create the impression that the jam in question is an organic product.47.In the trade, organic products are generally indicated to consumers by the term organic.See in this connection Council Regulation (EEC) No 2092/91 of 24 June 1991 on organic production of agricultural products and indications referring thereto on agricultural products and foodstuffs (OJ 1991L 198, p. 1).
They may also bear indications which in some way refer to organic production methods.See in this connection the third recital in the preamble to Regulation No 2092/91 and Article 1(1) thereof.
As we have seen, the labelling on d'arbo jam contains no indication of that nature.48.However, the question referred by the national court is whether an average consumer who is reasonably well-informed and reasonably observant and circumspect would expect to find traces of residues of lead, cadmium and pesticide in a naturally pure jam.49.In its written observations,Pages 9 to 11 of the French translation.
the Commission suggested that the Court should adopt a precise criterion in answering this question. It states that several instruments of Community law lay down maximum amounts of residues of lead, cadmium and pesticide which foodstuffs may contain. Consequently, it suggests making a comparison between the values stated by the national court and the maximum levels laid down by Community legislation. The Commission considers that the description naturally pure is liable to mislead consumers only if the levels measured in the jam in question greatly exceed maximum Community levels.50.The Finnish Government,See in particular paragraph 13 of its written observations.
however, challenged the relevance of such a criterion. It states that all foodstuffs which meet purity standards laid down by Community law must necessarily be described as pure. Hence, if it appears that the jam in question meets those standards, the description naturally pure should be regarded as being contrary to the provisions of Article 2(1)(a)(iii) of Directive 79/112. In that case, the description would suggest that the foodstuff possesses special characteristics when in fact all similar foodstuffs possess such characteristics.51.In this particular case, I consider that the term naturally pure might be liable to mislead consumers as to the characteristics of the foodstuff in two hypotheses.Firstly, the term naturally pure would be liable to mislead consumers if that term was incompatible with the presence of traces of residues of lead, cadmium and pesticide in the jam in question. In that case, the foodstuff would contain toxic or polluting substances which would clearly preclude the use of the term naturally pure.
Secondly, even if the jam in question might reasonably contain traces of residues of lead, cadmium and pesticide, the term naturally pure would still be liable to mislead consumers if the level of such residues was particularly high. In that case the foodstuff would contain such an amount of residues of lead, cadmium and pesticide that it could clearly not be described as natural. Moreover, in such a case the fact that the labelling of the jam fails to inform the consumer of the presence of the above mentioned residues would mislead the consumer in the sense contemplated in Directive 79/112.
52.The first hypothesis involves consideration of the presence of lead, cadmium and pesticides in the natural environment.53.The second hypothesis is linked to the criterion proposed by the Commission in that it involves a comparison between the levels indicated by the national court and the maximum amounts laid down under Community law.54.Before considering these two hypotheses, I should like to indicate, by giving examples of some judgments, the way in which the Court examines whether a denomination, trade mark or publicity material is misleading.55.The Pall case, cited above, concerned the use of the symbol (R) — derived from the English word registered — next to a trade mark to indicate that it is a registered trade mark. In that particular case the German legislation made it possible to obtain a ban on the marketing of a product bearing the symbol (r) where the trade mark of the product was not registered in that State but was registered in another Member State. It had been argued that the prohibition was justified because the use of the symbol (r), which indicates that a trade mark is registered, misleads consumers if the trade mark is not registered in the country in which the goods are marketed.The Court of Justice dismissed that argument on the ground that: ... even assuming that consumers, or some of them, might be misled on that point, such a risk cannot justify so considerable an obstacle to the free movement of goods....Fall judgment, cited above, paragraph 19 (emphasis added).
56.Similarly, the Mars case, cited above, put in issue German legislation prohibiting the importation of ice-cream bars lawfully marketed in France, whose wrapping was marked + 10%, the quantity of which was increased during a publicity campaign. The national court sought to ascertain whether the marking + 10% was misleading, in particular where retailers had imposed a corresponding increase in the price of the ice-cream bars.On that point the Court held that ... Mars ha[d] not actually profited from the promotional campaign in order to increase its sale prices and that there [wa]s no evidence that retailers ha[d] themselves increased their prices.Mars judgment, cited above, paragraph 19.
It added, however, that: ... in any case, the mere possibility that importers and retailers might increase the price of the goods and that consequently consumers may be deceived is not sufficient to justify a general prohibition which may hinder intra-Community trade.Mars judgment, cited above, paragraph 19 (emphasis added). The Court added, however, that: That fact does not prevent the Member States from taking action, by appropriate measures, against duly proved actions which have the effect of misleading consumers (paragraph 19).
57.Lastly, the Court's judgment in Commission v Germany, cited above, concerned, among other products, hollandaise and Béarnaise sauces. In Germany the marketing of sauces prepared from vegetable fats was possible provided that the label contained, in addition to the list of ingredients, a statement specifying that they contained vegetable fats. When charged with failure to comply with its obligations under Article 30 of the Treaty, the German Government explained that the purpose of the requirement at issue was to draw the attention of German consumers to the presence of certain ingredients which they do not expect to find, since the method of preparing the sauces concerned departed from the traditional German recipe.In that particular case the Court held that sufficient information was available to consumers in the list of products' ingredients. It added that: Even though consumers may sometimes be misled, that risk remains minimal and cannot therefore justify the hindrance to the free movement of goods created by the requirements at issue.Commission v Germany, cited above, paragraph 34 (emphasis added).
58.It is clear from those judgments that, in order to determine whether a name, trade mark or advertising statement is or is not liable to mislead consumers, the Court applies a kind of de minimis reasoning.See also in this connection the Clinique judgment, cited above, paragraphs 20 to 23 and the Van der Laan judgment, cited above, paragraphs 41 and 42.
It only decides that consumers are being misled where it considers that the risk of this happening is sufficiently serious or obvious.59.Moreover, in the judgment in Case C-313/94 Graffione the Court held:... the risk of misleading consumers cannot override the requirements of the free movement of goods and so justify barriers to trade, unless that risk is sufficiently serious....[1996] ECR I-6039, paragraph 24 (emphasis added).
60.The requirement of a sufficiently serious risk of consumers being misled is therefore a consistent factor in the case-law of the Court.61.In the light of that requirement, I think that the Court may adopt a dual criterion in this particular case in order to assess whether the term naturally pure is likely to mislead consumers. According to that dual criterion:- (a)the term naturally pure is such as to mislead consumers where the use of that term is manifestly incompatible with the presence of traces of residues of lead, cadmium and pesticide in the jam in question;
- (b)if not, the term naturally pure would still be such as to mislead consumers where the use of that term is manifestly incompatible with the abovementioned residues in view of the amounts measured in the jam in question.
62.This dual criterion links the two hypotheses of misleading consumers which I identified above.See point 51 of this Opinion.
Whether the term naturally pure is manifestly incompatible with the presence of traces of residues of lead, cadmium and pesticide in the jam in question
63.Lead and cadmium may be described as contaminants within the meaning of the provisions of Regulation (EEC) No 315/93 laying down Community procedures for contaminants in food.Council Regulation of 8 February 1993 (OJ 1993 L 37, p. 1).
These are substance[s] not intentionally added to food which [are] present in such food as a result of the production or as a result of environmental contamination.Article 1(1), second subparagraph, of Regulation No 315/93.
64.Lead and cadmium are heavy metals found in the air and on the earth's surface as a result of environmental pollution.Lead and cadmium are also to be found in the ground naturally in the form of salts.
65.Moreover, several instruments of Community law confirm the presence of these two substances in our natural environment.As regards lead, Directive 82/884/EEC,Council Directive of 3 December 1982 on a limit value for lead in the air (OJ 1982 L 378, p. 15).
for example, states that [W]hereas the use of lead is currently causing lead contamination of many areas of the environment.Second recital in the preamble to Directive 82/884 (emphasis added).
In that directive the Council fix[ed] a limit value for lead in the air specifically in order to help protect human beings against the effects of lead in the environment.Article 1(1) of Directive 82/884 (emphasis added).
Another example is given in Council Directive 1999/30/EC of 22 April 1999.Directive relating to limit values for sulphur dioxide, nitrogen dioxide and oxides of nitrogen, particulate matter and lead in ambient air (OJ 1999 L 163, p. 41).
Like Directive 82/884, those rules are designed to establish limit values... for concentrations of... lead in ambient air....Article 1, first indent, of Directive 1999/30 (emphasis added).
Moreover, Directive 80/778/EECCouncil Directive of 15 July 1980 relating to the quality of water intended for human consumption (OJ 1980 L 229, p. 11).
states that water is also likely to contain lead. The provisions of that directive reveal that water intended for human consumption, whether supplied for consumption or used in food production, generally contains a certain amount of lead.See in particular Articles 2 and 3 and Annex I, D (51) of Directive 80/778.
As regards cadmium, I have found several Community instruments which confirm the presence of that substance in water.
The preamble to Directive 83/513/EECCouncil Directive of 26 September 1983 on limit values and quality objectives for cadmium discharges (01 1983 L 291, p. 1).
states:
[W]hereas, since pollution due to the discharge of cadmium into water is caused by a large number of industries, it is necessary to lay down specific limit values according to the type of industry concerned and to lay down quality objectives for the aquatic environment into which cadmium is discharged by such industries.Fourth paragraph in the preamble to Directive 83/513 (emphasis added).
In that directive the Council laid down limit values for emission standards for cadmium in discharges from [certain] industrial plants...Article 1(1), first indent, of Directive 83/513.
and quality objectives for cadmium in the aquatic environ-men.Article 1(1), second indent, of Directive 83/513 (emphasis added).
Moreover, the provisions of Directive 80/778 confirm that water intended for human consumption, whether supplied for consumption or used in a food production undertaking, are also liable to contain amounts of cadmium.See in particular Articles 2 and 3 and Annex 1, D, point 46 to Directive 80/778.
66.It is apparent from all those directives that a considerable number of industries discharge, or have discharged, lead and cadmium into the environment. However regrettable this may be, the presence of those two substances in our natural environment is thus a reality.In this connection, pollution of the ambient air by lead is not really surprising. It will be remembered that the motor industry discharged lead into the atmosphere over a loin; period when vehicles were using fuel that was not leadfree.
67.Since garden fruit is, by definition, grown in such an environment, it is inevitably exposed to pollutants which affect it.In such circumstances it is not exceptional to find traces of residues of lead and cadmium on garden strawberries grown naturally.
68.I would suggest therefore that the term naturally pure is not a priori incompatible with the presence of the abovementioned residues in the jam in question.69.As regards pesticides, reference should be made to Directive 90/642/EEC of 27 November 1990.Council Directive on the fixing of maximum levels for pesticide residues in and on certain products of plant origin, including fruit and vegetables (OJ 1990 L 350, p. 71), as last amended by Commission Directive 1999/71/EC of 14 July 1999 amending the annexes to Council Directives 86/362/EEC, 86/363/EEC and 90/642/EEC (OJ 1999 L 194, p. 36, hereinafter Directive 90/642).
The preamble to that directive offers a fairly relevant overview of the reasons which lead to the use of pesticides. It states:Whereas crop production plays a very important role in the Community:
Whereas the yield from that production is continually affected by harmful organisms and weeds;
Whereas it is essential to protect plants and plant products against these organisms, not only to prevent a reduction in yield or damage to the products harvested but also to increase agricultural productivity;
Whereas one of the most important methods of protecting plants and plant products from the effects of these organisms is the use of chemical pesticides; whereas, however, mandatory maximum levels should be set as low as is consistent with good agricultural practice.First to fourth recitals in the preamble to Directive 90/642 (emphasis added).
70.It is apparent from these passages that the use of pesticides is one of the most usual ways of combating the presence of harmful organisms on vegetables and agricultural products.The Court has moreover stated on several occasions that pesticides are substances... necessary to agriculture... (judgments in Case 94/83 Heijn [1984] ECR 3263, paragraph 15 and Case 54/85 Mirepoix [1986] ECR 1067, paragraph 14).
Moreover, pesticides are not used only for industrial purposes or for large-scale crops. Private individuals who have indoor plants or grow fruit and vegetables in their gardens are also wont to use these substances in order to protect their crops.71.Thus, the fact that garden strawberries are grown naturally does not mean that the fruit is free of pesticides. It is true that in the case of organic products Regulation No 2092/91 laid down provisions which entail significant restrictions on the use of fertilizers and pesticides which may... result in the presence of residues in agricultural produce.Ninth paragraph in the preamble to Regulation No 2092/91.
However, as I stated above, d'arbo jam is not an organic product within the meaning of that regulation and does not bear any indication that it was produced organically.Sec points 45 to 47 of this Opinion.
72.This being so, the description naturally pure does not appear to me incompatible a priori with the presence of traces of pesticide residues in the jam in question.The manifestly incompatible nature of the description naturally pure with the levels of residues of lead, cadmium and pesticides measured in the jam in question
73.It is necessary however to consider the levels of residues of lead, cadmium and pesticides measured in the jam in question. The description naturally pure might nevertheless be liable to mislead consumers if the foodstuff contained a high level of residues of toxic or polluting substances.The description naturally pure might indeed be liable to mislead consumers if, due to a high level of residues of toxic or polluting substances, the foodstuff presented a significant risk to consumers' health.
74.In this connection it is appropriate to compare the levels indicated by the national court with the maximum levels laid down by Community law.75.As regards lead and cadmium, I have not discovered any particular measure governing the presence of those two substances in fruit. However, the Commission has submitted to the Court documents which reveal that several international and Community studies have been carried out in this field.Thus, in December 1998, the Codex Alimentarius Commission of the FAO [United Nations Food and Agriculture Organisation] and the World Health OrganisationIt should be mentioned that the Court refers frequently to the work of the Codex Alimentarius Commission of the FAO and the World Health Organisation: see, for example, the lodgments in Case 178/84 Commission v Germany (known as the Beer purity laws [1987] ECR 1227, paragraph 44; in Case C-42/90 Bellon [1990] ECR I-4863, paragraph 14; and in Joined Cases C-13/91 and C-113/91 Debus [1992] ECU I-3617, paragraph 17.
adopted documents recommending the adoption of international limits for lead and cadmium in certain foodstuffs. In the case of fruit, it proposed the establishment of a limit of 0.3 mg/kg for residues of lead and a limit of 0.01 mg/kg for residues of cadmium.Annex 1 to the Commission's observations (pp. 8 and 5).
Moreover, the Commission Directorate-General for Industry (DG III) made a study of the laws of the Member States imposing maximum levels for lead and cadmium in foodstuffs. In February 1995 it drew up a document entitled Compilation of tolerances for contaminants in foodstuffs in the laws of the Member States.Annex 2 to the Commission's observations.
It is apparent from that document that in the case of fruit and vegetables the Member States permit lead levels of between 0.1 mg/kg and 0.5 mg/kg and cadmium levels of between 0.02 mg/kg and 0.2 mg/kg. It is also apparent that the German law tolerates in most fruit a lead level of 0.5 mg/kg and a cadmium level of 0.2 mg/kg.
76.In its question the Oberlandesgericht Köln states that d'arbo jam contains the following traces: less than 0.01 mg/kg lead and 0.008 mg/kg cadmium.77.It is clear from this that the residues measured in the jam in question are well below all the national and international levels referred to above. Indeed, the product in question has a lead level which is 30 times lower than the level recommended, for example, by the Codex Alimentarius Commission of the FAO and the World Food Organisation. Moreover its cadmium level is 25 times lower than the maximum authorised by the German legislation, to take another example.78.As regards pesticides, reference should be made to the provisions of Directive 90/642 of 27 November 1990. In that directive the Council expressly laid down the maximum levels for pesticide residues in and on certain products of plant origin, including fruit and vegetables.As can be seen from the title of Directive 90/642.
Under Annex II to Directive 90/642 the maximum content for residues present in strawberries (other than wild strawberries) is 5 mg/kg both for procymidone and for vinclozolin.In the case of vinclozolin, sec Annex II, point l(v) to Directive 90/642, as amended by Article 2 of Council Directive 93/58/EEC of 29 June 1993, amending Annex II to Directive 76/895/EEC and the annex to Directive 90/642/EEC (OJ 1990 L 211, p. 6). As regards procymidone, see Annex II, point l(v)(b) to Directive 90/642, as amended by Article 3 of Commission Directive 98/82/ĽC of 27 October 1998 amending the annexes to Council Directives 86/362/EEC, 86/363/EĽC and 90/642/EEC (OJ 1990 L 290, p. 25).
79.In its question the court making the reference states that d'arbo jam contains the following traces: 0.016 mg/kg procymidone and 0.005 mg/kg vinclozolin.80.This shows that the quantities of pesticides measured in the jam in question are particularly low as compared with the levels allowed by Community legislation.To such a degree that the Commission referred to the quantities as being astonishingly low (p. 11 of the Erench translation of the Commission's observations).
Indeed, the procymidone content is more than 300 times lower than the maximum value authorised by Directive 90/642. Moreover, the vinclozolin content is 1000 times lower than the Community maximum amount.81.In those circumstances, I consider that the description naturally pure is not liable to mislead consumers as to the characteristics of the jam in question, and especially as to its qualities, composition or method of manufacture. In particular, it has by no means been established that, owing to the traces of residues of lead, cadmium and pesticide found in d'arbo jam, that jam should not be termed natural or bear the description naturally pure.Moreover, it should be pointed out that, in view of the particularly low level of the abovementioned residues as compared with the values authorised by the competent authorities (national, Community or international), the fact that consumers are not informed of the presence of such residues by the labelling of the product cannot be regarded as misleading within the meaning of the provisions of Directive 79/112.
82.I therefore propose that the Court give the following answer to the Oberlandcsgcricht Köln: the use of the term naturally pure to describe strawberry jam which contains pectin gelling agent and traces of residues of lead, cadmium and pesticide in the amounts indicated in the question referred for a preliminary ruling is notliable to mislead consumers as to the characteristics of the foodstuff within the meaning of Article 2(l)(a)(i) of Directive 79/112.