President of Brussels Commercial Court Dismisses Cease-and-desist Action Brought by Ferrero against Delhaize

On 25 November 2015, the President of the French-speaking section of the Brussels Commercial Court (the “President”) dismissed a cease-and-desist action brought by Ferrero, producer of Nutella®, against retailer Delhaize regarding Delhaize’s private-label hazelnut spread and the communications of Delhaize regarding the absence of palm oil in its products (judgment of 25 November 2015, A/15/01315, Ferrero SA v. établissements Delhaize Frères et Cie Le Lion (Groupe Delhaize)).

Ferrero put forward two main claims. In its first claim, Ferrero challenged various communications of Delhaize regarding the absence of palm oil in its products. In contrast to Ferrero’s Nutella®, Delhaize’s private-label hazelnut spread does not contain palm oil. Moreover, Delhaize limits the use of palm oil in its other private-label products.

Ferrero’s first claim had four distinct aspects. First, Ferrero argued that Delhaize’s communications regarding the absence of palm oil in its products contained misleading environmental claims in relation to foodstuffs and infringed multiple laws and regulations. The President dismissed this argument. He noted that, although linked to the highly debated use of palm oil in food products, the communications do not have a scientific character. The President continued that if the average consumer is careful to consume moderate or small amounts of food products containing palm oil, this is not necessarily due to Delhaize’s communications, but is a result of the current debate on palm oil. The President held that this does not allow for a finding that Delhaize’s statements are false or that they influence consumer behaviour in a way that goes further than merely attracting consumer attention.

Second, Ferrero asserted that ten of Delhaize’s statements, including the statements “Healthier products: our goal is to eliminate palm oil from every product where it is not essential” and “Paying particular attention to the nutritional quality of our products and respect for the environment, Delhaize eliminates, as far as possible, palm oil from its products”, was unlawful under Regulation 1924/2006 of 20 December 2006 “on nutrition and health claims made on foods” (the “Regulation”). The President dismissed this assertion as well. Noting that the statements merely reflect Delhaize’s intention to offer healthy products in line with its anti-palm oil policy, the President considered that the statements were permitted under the Regulation. In this regard, he ruled that Ferrero had failed to prove that Delhaize’s statements were false, ambiguous or misleading.

Third, Ferrero claimed that Delhaize’s communications were provocative and misused the consumer’s feelings of fear or worry regarding the use of products containing palm oil. Again, the President dismissed the claim, noting that the communications merely reflected Delhaize’s position on palm oil.

Finally, Ferrero argued that Delhaize’s communications were denigrating towards Ferrero and Nutella®, and thereby breached Article VI.105, 2° of the Code of Economic Law. The President dismissed this claim as well, noting that Delhaize had not criticised the spreads of its competitors and had not made any disparaging remarks about Ferrero, Nutella® or any other products. The President continued that he, in any case, failed to see how Delhaize’s communications regarding non-sustainable palm oil could harm Ferrero’s interests or products as Ferrero’s Nutella® contains certified palm oil.

In the second claim, Ferrero challenged Delhaize’s use of the term “choco” for describing its hazelnut spread, which contains cocoa powder but no “chocolate”. According to Ferrero, by using the term “choco”, Delhaize made an unlawful use of (an abbreviation of) the term “chocolate”, which is protected under the Royal Decree of 19 March 2004 “relating to cocoa and chocolate products intended for human consumption” (the “Royal Decree”). Pursuant to the Royal Decree, a product should contain at least 35% of cocoa to be described as containing “chocolate”. This criterion is not met by Delhaize’s “choco”, which contains only about 7% of cocoa. Yet, the President held that Delhaize’s use of the term “choco” is merely to describe the product’s taste, and not to indicate that the product actually contains chocolate. In addition, the President noted that the term “choco” is not mentioned in the Royal Decree and therefore not protected. Furthermore, the term “choco” refers to chocolate spread or choco spread, which, according to the President, is perceived by consumers as a spread containing sugar, vegetable oil and cocoa powder. As a result, the President dismissed Ferrero’s second claim as well.

The judgment offers a fresh illustration of the fraught relationship between brand owners and retailer customers which are at the same time private-label competitors.