Spain, Italy censured for chocolate ban

The European Court of Justice has ruled that Spain and Italy have both acted illegally in prohibiting the sale of products containing vegetable fats other than cocoa fat under the name of 'chocolate'.

The polemic over the use of the name chocolate has been raging for years, and has centred principally on this use of vegetable fats. Countries such as Denmark, Ireland, Portugal, Sweden, Finland and the UK - which use vegetable fats in addition to cocoa butter - have long argued that their product has as much right to be called 'chocolate' as that produced in other Member States.

The legislation allowing the use of vegetable fats other than cocoa butter, up to a maximum of 5 per cent, dates back to 1973, and the European Commission took the view that Spain and Italy were breaching single market laws by banning the sale of such products under the name chocolate, forcing them instead to be sold as 'chocolate substitutes'.

The two countries, for their part, argue that the 1973 Directive only covers chocolate - i.e. products made only with cocoa butter - and that as such it was not relevant in this case.

After years of wrangling, the case was finally transferred to the ECJ, which found that the 1973 Directive in fact only made "provisional rules" governing the use of vegetable fats, and that it allowed Member States to maintain national rules authorising or prohibiting the addition of vegetable fats other than cocoa butter to products manufactured within their territory.

While this would seem to favour Spain and Italy's stance, the Court also pointed out that this ruling would only be allowed if at the same time it did not penalise products made elsewhere within the EU which have to be allowed free movement within the 15 Member States.

"The Court holds that the requirement to alter the sales name of the products in question to 'chocolate substitutes' may compel traders to incur additional packaging costs and, in any event, may adversely affect how customers perceive those products. That would lead to restrictions on the free movement of goods,"​ the ECJ said in a statement.

Commenting on Spain and Italy's claims that their restrictions had been put in place in order to protect consumers, the Court said that while it agreed that this principle was the most important of all, the measures introduced by the two countries were not in proportion to the severity of the problem.

If the product had been substantially changed by the addition of vegetable fats other than cocoa butter, it argued, then Spain and Italy would be justified in obliging it to be called 'chocolate substitute'. But, it added, "according to the 1973 directive, the characteristic element of all products bearing the name 'chocolate' is the presence of a certain minimum cocoa and cocoa butter content.​

"The addition of vegetable fats does not substantially alter the nature of those products. Accordingly, appropriate labelling which notes the presence of vegetable fats other than cocoa butter would be sufficient to ensure that consumers are informed, and thus protected,"​ it concluded.

Thus, the Spanish and Italian rules were considered disproportionate and infringe the principle of the free movement of goods, the Court found.

The whole case seems rather farcical when viewed in the light of a new Directive, agreed in 2000 but which does not come into force until June this year, which definitively authorises the use of vegetable fats other than cocoa butter up to a maximum of 5 per cent - if this had been the wording of the 1973 Directive, Spain and Italy would have had no leg to stand on at all.