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In Berger v Freistaat Bayern, the Court of Justice approved warnings from a competent public authority about foodstuffs that are unfit for human consumption. Although this conclusion is clearly backed up by the wording of the Foodcode, the judgment is remarkable for three reasons. First, as the Court comes to the conclusion by referring solely to the consumers' interest in safety, disregarding a balancing test against the producers' right to the free marketing of food in art.5(2) Foodcode, this case carries the dangerous potential of being interpreted as if consumer interests generally trump the producer's right to the free marketing of food. Secondly, the case has to be aligned with the Court's ruling on disclosure in AGMCOS. MET, where it favoured the producer's right to the free movement of products over consumers' interest in safety. Thirdly, by connecting the scope of the term "unfit for human consumption" to consumer interests in food only, the decision worryingly opens up this term to consideration of other legislative decisions in EU law on the protection of the consumers' interest.
