Ban on dual quality of goods

The new Consumer Protection Act (“ZVPot-1”) has also incorporated some provisions of the previously separate Consumer Protection against Unfair Commercial Practices Act. Consequently, unlike the ZVPot, ZVPot-1 also includes provisions on misleading commercial practices and a provision prohibiting the marketing of dual quality goods. Thus, any marketing of goods in one Member State as identical to goods marketed in other Member States is prohibited if these goods have substantially different compositions or characteristics. Exceptionally, such differentiation of goods is permissible if justified by legitimate and objective factors. The above provision is a consequence of the transposition of Directive (EU) 2019/2161 of the European Parliament and of the Council of 27 November 2019, which was adopted after several consumer protection authorities in different EU Member States reported, between 2016 and 2018, the discovery of differences in the composition or characteristics of certain food products on the market in a particular Member State compared to other Member States. 

ZVPot-1, therefore, prohibited the marketing of goods as identical if they were substantially different in composition or characteristics, which could mislead the consumer into making a purchase decision that he would otherwise not have made. The difference in composition or characteristics of goods marketed as identical must be assessed by the competent authority on a case-by-case basis, taking into account in particular: (i) whether consumers can easily identify such a difference; (ii) the right of the undertaking to adapt the same labelled goods to different geographic markets for legitimate and objective factors (for example, national law, availability or seasonal availability of raw materials, or voluntary strategies to improve access to healthy and nutritious foods); and (iii) the right of undertakings to offer the same labelled goods in different geographic markets in packages of different weights or volumes.

Differences in the quality of goods sold in different markets are still allowed. However, the inferior product must be labelled or packaged differently so as not to mislead the consumer into believing that it is the same quality as that known to him/her under different packaging.

Where there are specific differences in different markets, the undertaking must inform consumers accordingly to allow consumers to access the necessary information. There are no guidelines as to how to provide that information. However, it is stressed that the undertaking should use other means of communicating with consumers other than labels on the goods or the inclusion of an explanation in the general terms and conditions of sale.

Given that the deadline for transposition of Directive (EU) 2019/2161 lapsed at the end of 2021, most Member States had already incorporated provisions on the prohibition of dual quality goods in their legislation long before Slovenia, but despite this, there have not been many cases of clear discrimination. The most recent well-known case was in the Czech Republic, where the competent authorities found that the product 7Days Rolls with pizza flavour was of a different quality on the Czech market than on the Austrian or German market. Specifically, the product was made with sunflower oil for the Austrian and German markets but with inferior palm oil for the Czech market.

The application of the provisions on the prohibition of dual quality of goods will therefore evolve in practice as concrete examples of diversity arise. It should also be noted that dual quality of goods applies not only to food but to all goods, including cosmetics and automotive products.

Author: Tina Marciuš Ravnikar, Senior Associate