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A bottle of chili sauce labelled “435 ml”. An Austrian authority orders the quantity to be stated in grams, considering the product too thick to qualify as a liquid. The dispute reaches the CJEU and raises a much broader question: what determines the choice of unit for declaring the net quantity of food?
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In Case C‑969/26 Penny, an Austrian court has asked the Court of Justice of the European Union to interpret Article 23(1) of Regulation (EU) No 1169/2011. This provision requires the net quantity to be expressed in units of volume for liquid products and units of mass for other products. However, it does not specify criteria for drawing a clear distinction between these categories.
Article 23 Net quantity
1. The net quantity of a food shall be expressed using litres, centilitres, millilitres, kilograms or grams, as appropriate:
(a) in units of volume in the case of liquid products;
(b) in units of mass in the case of other products.
The case concerns “Taste of Asia Chili-Sauce”, sold by Penny and labelled with a net quantity of 435 ml. Relying on an opinion from the Austrian agency AGES, the Austrian authority challenged this declaration. It pointed, among other things, to the sauce’s thick consistency, the presence of seed and plant particles, and the fact that some product remains in the packaging after emptying. In the authority’s view, the net quantity should have been stated in grams.
Penny challenged that assessment. It argued that the sauce has a variable shape and a constant volume, spreads across a plate at room temperature, and is perceived by consumers as a liquid product. The disagreement therefore concerns the very meaning of “liquid”: should it be determined by the product’s physical properties or by how consumers perceive and use it?
The referring court seeks to establish, in particular:
Particularly interestingly, the reasons for the reference indicate that the Austrian supervisory authority has also classified soy sauces as non-liquid products. This illustrates the potentially broad significance of the ruling.
The forthcoming judgment may provide criteria relevant to the labelling of sauces, dressings and other products with a thick or non-uniform consistency. For manufacturers and retailers, the case concerns the basis for choosing the unit of net quantity and the ability to defend that choice during official controls. The criteria adopted by the CJEU may affect the assessment of existing labels and help harmonise enforcement practices across Member States. In our view, businesses should already consider what underpins the net quantity declaration for borderline products: an assessment of their properties, consumer expectations or simply established market practice. Even a labelling element as basic as “g” or “ml” may require clarification at EU level. The Penny case shows that an apparently straightforward provision does not always provide a straightforward answer. The case concerns a request for a preliminary ruling. The positions of the authority and the business described above do not constitute a ruling by the CJEU.
The food law experts at IGI FOOD LAW have many years of experience in assessing individual labelling elements and developing regulatory strategies to support the safe and lawful placing of products on the market. If you have questions about food labelling or classification, please contact the IGI FOOD LAW experts at igifoodlaw@igifoodlaw.com
