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In recent years, the concern that some branded products might be inferior in the Member States that have joined the European Union since 2004 has become ever more apparent. This concern has come to be known as the ‘dual quality of products’. To address the issue, between 2018 and 2019, the European Commission’s Joint Research Service (JRC) compared a set of branded food products sold under the same name and in the same or similar packaging across Member States – the first time a harmonized testing methodology has been used to compare products from the whole of the European Union.
The analysis sought to determine whether, despite the identical or similar packaging, there were differences in product composition and, if so, whether those differences corresponded to any geographical pattern. Results showed that about one third of the branded food products analyses had a composition that differed from one Member State to another. However, the results did not point to any geographical pattern that might explain those differences.
In 2017, the Commission had already sought to clarify the relevant legislation with a notice introducing a test that national consumer protection authorities could use to determine on a case‑by‑case basis whether the dual quality of food products was misleading. Later, in April 2018, in the framework of the ‘new deal for consumers’, its proposal for a new directive on modernization of EU consumer protection rules sought to include the dual quality of products (not just of food products) in the Unfair Commercial Practices Directive. The European Parliament has long voiced its concerns about the dual quality of products and had called for it to be added to the ‘blacklist’ of practices that should always be considered as banned.
However, the text of the new directive on modernization of consumer protection rules as adopted by the co-legislators did not include dual quality as a practice that must be considered unfair in all cases, but rather as one that must be proven to be misleading on a case-by-case basis. The European Consumer Organization (BEUC) has criticized this, while business organizations defend the right of companies to differentiate their products in different markets.
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