This update covers two judicial developments in food and product regulatory law. The first is a referral by the French Conseil d’État to the CJEU on the legal basis of the Nutri-Score scheme under the FIC Regulation. The second is the opinion issued by the Advocate-General on when the packaging of a hazardous household product may be considered too similar to food packaging under the CLP Regulation.
Nutri-Score before the CJEU: does the scheme have a sound legal basis? (Conseil d’État (France), 16 June 2026)
Groupe Lactalis challenged the arrêté of 14 March 2025 updating the Nutri-Score scheme, together with a Q&A document published by Santé publique France which specified that milk, drinking yoghurts and flavoured or chocolate milk drinks are to be treated as beverages rather than foodstuffs for the purpose of calculating the Nutri-Score. The Nutri-Score applies different calculation coefficients to beverages as compared with most other foodstuffs, and the reclassification of dairy drinks as beverages has been a source of longstanding objection from the dairy sector, which considers that it yields nutritional scores that do not reflect the nutritional profile of products such as plain milk.
The Conseil d’État held that the Nutri-Score is not a claim made by a manufacturer or distributor but a logo applied in accordance with an administrative specification and does not constitute a nutritional or health claim within the meaning of Regulation 1924/2006[1]. The grounds based on the competence of the arrêté’s author, the adequacy of the ANSES consultation and the obligation to notify the Commission were likewise dismissed.
The Conseil d’État nonetheless identified two questions of EU law which it considered determinant for the resolution of the dispute and on which it was not prepared to rule without CJEU guidance. The first is whether Article 35(2) of Regulation 1169/2011 permits a Member State to recommend a supplementary graphical representation of nutritional information that does not express separately and distinctly the energy value and quantities of nutrients[2], in other words, whether a representation such as the Nutri-Score, which condenses the overall nutritional value of a food into a single letter and colour code, falls within the scope of what the provision authorises. The second, conditional on an affirmative answer to the first, is whether such a representation may take into account elements beyond those listed in Article 30 of the regulation, such as the proportion of fruits, vegetables and nuts or the presence of sweeteners, provided those elements are directly linked to elements in Article 30 or to elements subject to a mandatory complementary indication under Article 10. Finding [3]both questions to present a serious difficulty and to be determinant for the outcome, the Conseil d’État referred them to the CJEU and stayed its proceedings pending the Court’s ruling. [4]
The questions referred go to the structural validity of the Nutri-Score model as currently designed, and their implications extend beyond the dairy sector. Should the CJEU hold that a Member State cannot recommend a graphical representation that fails to express each nutrient value distinctly, or that inclusion of ingredients such as fruits, vegetables, nuts and sweeteners in the scoring algorithm exceeds what the FIC Regulation permits, the legal basis of the scheme as implemented in France would need to be reconsidered, as would the parameters within which other Member States may design analogous nutritional labelling systems. The proceedings are of direct interest to businesses operating across the EU Member States and Switzerland where the Nutri-Score has been officially adopted, as well as to those that have made product reformulation or positioning decisions on the basis of their Nutri-Score ratings.
When a laundry detergent looks like a carton of milk: packaging obligations under the CLP Regulation (Opinion of Advocate-General Szpunar in case Orkla Care AB v Kemikalieinspektionen, Case C-395/25, 18 June 2026)
The case concerns the first subparagraph of Article 35(2) of the CLP Regulation, which sets out requirements applicable to packaging containing a substance or mixture classified as hazardous and supplied to the general public. Orkla Care AB markets liquid laundry detergents in oblong cardboard packaging with a square base, a folded top and a screw cap, a format which prompted consumer reports of confusion with foodstuffs and led the Swedish Chemicals Inspectorate to prohibit its marketing on the grounds that the shape, design and colouring, together with a label describing the product as vegan, were likely to mislead consumers. Orkla Care argued, among other things, that a sealing label torn off at first use provided a sufficient safeguard and that, since the product is merely an eye irritant and not hazardous when ingested, any such confusion was immaterial.
Advocate-General Szpunar’s Opinion addresses the five questions submitted to the Court for preliminary ruling.
On the assessment criteria[5], the Advocate General proposed that all perceptible characteristics of packaging must be taken into account: shape, size, volume, materials used, design, labelling, colour and smell. An element of packaging designed to distinguish it from food packaging should not be considered in that assessment where it does not remain intact throughout the life cycle of the product. A sealing label torn off before first use cannot serve as a mitigating factor: the CLP Regulation aims to protect not only the purchaser at the moment of acquisition, but any potential user of the substance or mixture throughout the product’s life cycle.
On the reference market[6], the Advocate General proposed that similarity must be assessed solely by reference to the market of the Member State whose national authority is responsible for implementing the provision. National consumer habits and product norms vary between Member States; in certain Member States, for example, milk continues to be sold in plastic bags, which increases the perceived similarity between food and non-food products sold in comparable formats. Those differences are properly reflected in assessments conducted at national level.
On the concept of consumer[7], the Opinion proposes that it encompasses all individuals likely to use the hazardous substances or mixtures concerned, or any person able to have access to them, including vulnerable persons. The assessment of similarity must therefore take into account the cognitive capacities of persons whose senses or capacities of association are not those of a reasonably well-informed and circumspect consumer, including children. This is a broader standard than the average consumer test applied in trade mark or food labelling contexts.
On hazard level[8], Article 35(2) operates on a binary logic: either a substance is classified as hazardous and its packaging must satisfy the provision’s requirements, or it is not. The specific hazard class or severity of risk, including whether the product poses any danger if ingested, is irrelevant to that assessment.
On the threshold of likelihood of confusion, a not insignificant likelihood, going beyond a theoretical one, is sufficient to trigger the prohibition. It is not necessary to demonstrate that actual confusion has occurred, though evidence of such confusion may be taken into account.
The Opinion is of direct relevance to manufacturers and marketers of household products classified as hazardous under the CLP Regulation. The framework proposed constrains the extent to which packaging design can draw on aesthetic choices common in the consumer goods sector, such as cardboard construction, vegan labelling or colourways associated with premium food products. Should the Court follow the Advocate General on the reference market question, a packaging format unchallenged in one Member State would provide no assurance of compliance in another, and businesses selling across multiple Member States would need to assess each market independently against local food packaging norms. The Court is not bound to follow the Opinion, and its judgment, when delivered, will warrant close attention.
For further information, please contact:
Nicolas Carbonnelle, Partner, Bird & Bird
nicolas.carbonnelle@twobirds.com
[1] Para. (11) of the Décision of the French Conseil d’Etat in case n° 508230.
[2] Para. (16) of the Décision of the French Conseil d’Etat in case n° 508230.
[3] Para. (19) of the Décision of the French Conseil d’Etat in case n° 508230.
[4] Para. (20) of the Décision of the French Conseil d’Etat in case n° 508230.
[5] Para. (45) of the Advocate’s General Opinion in case C-395/25.
[6] Para. (62) of the Advocate’s General Opinion in case C-395/25.
[7] Paras. (90) and (92) of the Advocate’s General Opinion in case C-395/25.
[8] Paras. (99) and (101) of the Advocate’s General Opinion in case C-395/25.
