Food Law & Consumer Goods Law

Experts in Food, Consumer Goods and Cosmetics

There are many legal requirements pertaining to food and consumer goods, both at a national and European level. In addition, the sector is subject to constant changes in legislation, strong ties to scientific research, a multitude of industry standards and pronounced media and political attention. This makes food law and consumer goods law one of the most complex and dynamic legal disciplines of all.

This is why it is so important to seek the advice of proven experts in the field. All the lawyers in ZENK’s food and consumer goods division have a high degree of specialization and maintain a strong industry-wide network.

We advise on everything from product development, labelling and advertising to representation in regulatory complaints, warning procedures and court proceedings. Representation in penalty and criminal proceedings has become increasingly important in recent years, as has crisis and recall management, whether in the event of health hazards or media crises triggered by NGO or media campaigns. We know the players and stakeholders in the industry, and we know how to deal with them!

Competent, practice-oriented advice in food and consumer goods law requires a correspondingly strong network. We are actively involved in various associations, including the German Federation for Food Law and Food Science (BLL) and other trade associations, and are engaged in ongoing dialogue with representatives of regulatory authorities and scientists. Of course, we also have close contact with equally specialized law firms in numerous countries worldwide, and can thus support you in advising your company on an international basis.

Our clients include international corporations, medium-sized companies and successful start-ups from the food industry, in addition to associations from the food, consumer goods and packaging industries.

In addition to providing legal advice on food law and consumer goods law, we conduct training courses for management and employees and crisis & recall management drills. We adapt the thematic structure, scope and location of the training to the needs of each individual client.

Please contact us directly if you are interested in booking an in-house training course!

Beginning in September 2020, we have launched a series of online seminars on food law.

Food Formulations & Product Developments

We help you develop your product formulations in such a way that you are able to pursue your desired product positioning and advertising. Where necessary, we work with scientists to achieve your goals.

Our key areas of focus include, in particular:

  • Additives
  • Enrichment
  • Flavorings
  • Enzymes
  • Recipes and claims of effect/product positioning
  • Novel food

Food Labelling

We can support you in the design and precise formulation of food labels, whether for the market launch of new products or the adaptation of label designs to new legal requirements. The need for the legal advice typically begins early – often with the selection of the actual product name. We provide the necessary support in the form of trademark searches and more. We advise on:

  • Mandatory labelling and information according to the EU Food Information Regulation, German labelling and packaging law (FertigpackV) and the German law on the sale and packaging of measurement devices (MessG). This can include sales name, list of ingredients, BBD, allergen labelling, QUID, nutrition declaration, quantity information, etc.
  • Formulation of required warnings
  • Review of advertising texts and other claims for potential misleading statements
  • Health and nutrition claims under the EU Health Claims Regulation and other claims of effect
  • Admissibility of illustrations of ingredients
  • Use of eye-catchers and attention-getters on packaging
  • Advertising using test results

Having your labels and packaging designs reviewed in a timely fashion is an effective way to prevent nasty surprises, including regulatory complaints or warnings and injunctions from competitors. In the worst case scenario, you may even face a ban on sales or a public recall.

Advertising Strategies for Food

We support you in the conception and implementation of advertising strategies and promotional campaigns.

Our main areas of focus include:

  • Sweepstakes, discounts, codes and bonus campaigns
  • Health, disease and slimming advertising
  • Use of quality seals (e.g. from consumer organizations such as Stiftung Warentest) and advertising using test results
  • Freshness, nature, sustainability and organic advertising
  • Advertising with indications of origin and regional advertising
  • Clean labelling
  • Advertising of vegetarian and vegan foods
  • “Me too” products
  • Ambush marketing

We review your advertising concepts, flag weak points and work with you to develop legally compliant or risk-optimized alternatives. Where necessary, we take measures to protect your advertising campaign from attacks by third parties (e.g. through the filing of protective letters).

Packaging Law for Food

Producers, retailers and restaurants are now required to comply with a comprehensive range of packaging-related regulations – not least due to the entry into force of the new German Packaging Act (VerPackG) in 2019.

We provide expert support on all matters related to packaging law, including:

  • Evaluation of individual items of packaging with regard to Germany’s “system participation obligation” (designed to increase recycling quotas), the obligation to participate in the deposit/return system, and more.
  • Communication with central bodies
  • Questions concerning the application of packaging law regulations
  • The handling of regulatory complaints and penalty proceedings
  • Representation in warning procedures, injunctions and lawsuits
  • The drafting of contracts with customers and suppliers

Special Food

We can provide support for the market launch and advertising of special foods and obtain any necessary official approvals.

Our work focuses, among others, on the following areas:

Dietary Supplements
Because of their specific health benefits and their mostly atypical appearance in comparison to other food, dietary supplements often occupy a grey zone between medicines and food. We can advise you on your product idea and implementation and pave the way for your desired product positioning and potential claims of effect. We examine both special food law considerations (e.g. according to the EU Food Information Regulation, the German Food and Commodities Act (LFGB), the German law on dietary supplements (NemV) and the EU Health Claims Regulation) and general considerations relating to the avoidance of misleading claims.

Novel Foods
The legal situation regarding novel foods – that is, foods which are new to the European market because of their exotic origin, their specific composition or the use of innovative production methods – has recently undergone a fundamental shift. We can assist you in obtaining novel food approval and launching novel food on the market, and advise on the specific labelling rules that often apply to this group of products (e.g. for products enriched with phytosterols, chia seeds, etc.).

Food for Special Consumer Groups
Taking into account the numerous new regulations in this area, we can advise on the formulation and positioning of this product category (formerly known as “dietary foods”) and on questions of labelling and advertising.

Enriched Foods
For questions of food enrichment, we can advise on the EC regulation regarding the addition of vitamins and minerals and offer support for challenging product positioning at the dynamic interface between pharmaceuticals, additives and novel food. We are also happy to advise on questions of labelling, presentation and advertising.

Genetically Modified Organisms (GMO)
Foodstuffs containing or consisting of genetically modified organisms are subject to particularly strict regulations. We can advise on the import and use of GMOs and can assist in crisis situations, e.g. in the event of contamination with non-approved GMOs. We can also offer support for the correct labelling of goods, e.g. with the “ohne Gentechnik” seal (“free from genetic engineering”) or with specific unique identifiers for GMOs.

Drafting of Contracts

Food businesses need contracts specifically tailored to their needs, and contract design requires in-depth industry knowledge.

We draft new contracts and contract models, revise existing contracts and support you in contract negotiations. We adapt contracts to the specific requirements of your company and do everything in our power to get you the best possible result: Among other things, we develop framework agreements, purchase contracts, supply contracts (including clauses on just-in-time production, etc.) and general conditions of purchase and sale for food producers and retailers. We advise on the opportunities and limits of liability exclusions and the internal distribution of duties within companies in relation to food law responsibility.

We also advise on the contractual design of advertising measures (e.g. media and brand cooperations, license agreements, etc.) and can draft or revise agency agreements between food companies and advertising agencies.

Financial Penalties & Criminal Proceedings

Complaints regarding food control often have serious consequences – not only for the company but also for the person(s) responsible under food law.

Such complaints often result in regulatory offence proceedings, which can in turn lead to financial penalties and entries in the central trade register. In the past few years, however, the number of criminal proceedings under food law has also increased considerably, and penalities and criminal proceedings are increasingly directed against the management of companies. This comes not only with the threat of heavy fines, but also the potential stigma of a criminal conviction. In such cases, we do everything in our power to ensure that proceedings against you are discontinued or that you are acquitted.

Compliance & Delegation

For the avoidance of penalties, criminal proceedings and other, more traditional forms of crisis, we can support you in the implementation and optimization of compliance structures in your company. In this respect, our advisory services focus on the following:

  • Creation of instructions / activity descriptions (“compliance guidelines”) in coordination with specialist departments of the compan
  • Delegation of operational duties to employees and preparation of the delegation agreements required for this purpose
  • Development of control mechanisms for compliance with obligations
  • Implementation of compliance training courses in the company

Liability & Recourse

The food industry is often involved in cases of liability and recourse. Business operators frequently find themselves in “sandwich situations” in which they are simultaneously required to defend against claims from customers and attempt to claim damages from the suppliers responsible.

We support you in pre-trial negotiations and in court proceedings for damages. We can also represent you when consumers assert claims for damages and damages for pain and suffering.

Crisis Management & Communication

We can assist you in crisis situations and support you in minimizing damage to as great an extent as possible, e.g. in the event of public or silent recalls, public warnings (e.g. by RASFF) and in NGO campaigns.

We coordinate your communication with authorities, contractual partners and the press. It goes without saying that we are available around the clock, 24/7 – because a crisis requires you to act fast, keep a cool head, preserve the interests of stakeholders and avoid damage to your image. For this, you need – among other things – a team of crisis-tested lawyers who recognize exactly what to do.

New transparency regulations such as the German Consumer Information Act can also produce crises for companies if, for example, information on official hygiene inspections or undesirable substances in food is requested and published by journalists or NGOs, or if authorities publish inspection results online in accordance with § 40 (1) a) of the German Food and Feed Code (LFGB). In such cases, our role is to prevent the illegal publication of inspection results and other information and thus to protect a company’s good reputation.

Transactions in the Food Industry

The future prospects of companies in the food industry depend, to a large extent, on the feasibility of product ideas and corresponding advertising strategies.

For this reason, transactions in the food sector demand the detailed consideration of complex food law regulations and resulting practical options and the integration of these into the transaction process.

In comparison to normal transactions, corporate transactions in the food industry are characterized by numerous factual and legal peculiarities. The intrinsic value of assets often depends largely on food law requirements and, in particular, on pending changes in the legal framework. As such, it is essential – perhaps more so than in any other industry – that any external advisor is fully familiar with these particularities.

Other Commodities

From a legal perspective, the definition of consumer goods is broad and encompasses a large number of the different product groups that come into contact with food or the body.

Food packaging is a particular focus. Recent years have seen the introduction of many new legal requirements for consumer goods, while the considerable media attention afforded to the issue of “migration” (including MOSH, MOAH and cyclo-di-badge) has also massively increased companies’ susceptibility to crises and liability in the area of consumer goods law. In this respect, we can advise you, in particular, with regard to:

  • The preparation and review of declarations of conformity
  • Oversight of the conformity assessment procedure
  • Support in crisis situations (migration of undesirable substances, reporting by consumer watchdogs such as Ökotest and foodwatch, recall requests from authorities)
  • Assertion of claims for damages against suppliers

Medical Product Law and Drug Law

We offer comprehensive advice in the field of drugs & medical devices. Our activities focus, among others, on the following areas:

  • Advice on product development and positioning
  • Examination of the marketability of drugs and medical devices
  • Support for all approval-related issues
  • Differentiation between food, animal feed, cosmetics, biocidal products
  • Advice on issues related to conformity assessment procedures, certification, etc.
  • Labelling and advertising of drugs and medical devices
  • Advice and legal representation in administrative offences and criminal proceedings
  • Representation in warning procedures, injunctions and lawsuits

Feed Law

Feed law is another field that has become increasingly complex in recent years. We support feed businesses particularly in the following areas:

  • Product development, e.g. use of additives
  • Approval and registration procedures
  • Mandatory labelling of feed
  • Promotional claims for feed, e.g. nutrition and health claims
  • Handling of animal by-products
  • Crisis management
  • Handling of regulatory complaints, penalties and criminal proceedings

Cosmetics Law, Law on Detergents and Cleaning Agents

We advise manufacturers and distributors of cosmetic products, detergents and cleaning agents on the following areas:

  • Aspects of product launches and relaunches related to formulations, product positioning, product labelling and labelling
  • Quality and risk management: We review compliance with cosmetic guidelines, product safety and requirements related to nanomaterials, colors and fragrances, hygiene, pesticides, migration and allergen potential.
  • Requirements for natural cosmetics and issues of differentiation
  • REACH and chemicals legislation
  • Ensuring the admissibility of claims of effect and the absence of misleading statements

Tobacco Law

Since the new German Tobacco Products Act (TabakerzG) came into force, manufacturers and importers have been required to comply with a completely new set of notification requirements for tobacco products and related products (TabakerzV) and new obligations regarding labelling, technical requirements and substances.

We can offer complete support for all issues under tobacco law, including:

  • Marketability of tobacco products, e.g. the use of additives
  • Product marketing against a background of industry-related voluntary obligations and legal advertising restrictions
  • Tobacco tax law, e.g. the tax law classification of tobacco products or issues related to the tax stamp obligation, etc.
  • Positioning, labelling and advertising of alternative products, e.g. e-cigarettes

ZENK provides specialists in food law and consumer goods law in Hamburg, Berlin & nationwide.

We are happy to train your employees on food law issues through lectures and workshops on food and consumer goods law. If so desired, we can also pass on our expert knowledge in the form of regular in-house seminars.