Under German law, a drink could only be labelled and advertised as ‘beer’ if it complied with German legislation specifying what ingredients could and couldn’t be used. A company that imported French beer and was prevented from labelling it ‘beer’ argued that this was an impediment to trade contrary to article 28. ECJ accepted this, and refuted the defence that the law was necessary to protect consumers.
ECJ: In view of the uncertainties at the present state of scientific research with regard to food additives and of the absence of harmonization of national law, it is generally permissible to restrict the use of additives to food/drink. However this must be done in accordance with the principle of proportionality which is to be inferred from article 30, taking into account scientific research. The defence that the German consumer automatically assumed that ‘beer’ would contain only the substances allowed under the national legislation, and therefore needed to be protected from being induced to buy something that didn’t correspond to that description, is wrong: Consumers’ perceptions change over time and it would prevent trade if one national set of perceptions at one time were crystallised in law, giving domestic producers an advantage. Secondly beer is a generic term, and people use it outside the context of just talking about what is referred to under the legislation. Finally the aim of informing consumers of the contents of a drink is fine, but there are more proportionate ways to do it (i.e. that will have less effect on trade), such as labelling requirements.