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A German court has banned the sale of smaller Milka chocolate bars in packaging that is virtually identical to the previous one, unless consumers are clearly informed of the change in weight. The Czech legal system does not currently contain an explicit obligation to provide information about changes in weight. Nevertheless, this decision is not merely a matter of interest in Germany. Indeed, it is also based on European rules on the provision of information to consumers, which also apply in the Czech Republic. Can then a similar line of argument also apply to the Czech market? And what lesson should be learned by producers and distributors who are trying to work out how to communicate the change in weight to the public?
When the packaging stays the same but there is less of the product
So-called “shrinkflation” has been a frequent topic of consumer debate in recent years. The principle is simple: the producer reduces the contents of the packaging, whilst the price remains the same or increases and the packaging appears almost unchanged. Consumers may therefore easily get the impression that they are buying the same product as before, even though they are actually getting less.
This was precisely the issue addressed by the German court in the Milka chocolate case. The U.S. multinational group Mondelez has switched from 100-gram bars to 90-gram bars, but has kept the packaging virtually the same. The change affected the thickness of the chocolate itself, not the size of the packaging. It follows from the judgment that although the figure “90 g” did appear on the packaging, it was obscured on the shelf by a cardboard section of the secondary packaging, meaning that consumers might not actually have noticed it when making their purchase.
The decision emphasises how the product appears in a real-life shopping situation, i.e. the impression it makes on the average consumer when they look at the shelf.
What did the court say?
In its recent judgement, case no. 12 O 118/25, the Bremen Regional Court has prohibited the sale of 90-gram Milka bars without clear information regarding the change in weight for a period of four months from the launch of the new packaging. It has imposed a fine of up to EUR 250,000 on Mondelez for each subsequent infringement.
The legal basis for the decision was the provisions of the German Unfair Competition Act in conjunction with Article 7 of Regulation (EU) No 1169/2011, pursuant to which food information must not be misleading, including as to the quantity of the product. According to the court, it is not sufficient for the new weight to be stated somewhere on the packaging. If the packaging looks practically the same as before, consumers may easily get the impression that they are buying the same product as before, and such presentation may be regarded as misleading.
The court has also rejected the argument that consumers will be able to see the change due to the figure “90 g”, the unit price, or posts on social media. The court has emphasised that the statement must be clear, comprehensible and immediately noticeable at the point of purchase. However, the court did not specify exactly what such a notice should look like.
The decision is not yet final. Mondelez has lodged an appeal and the case will be heard by the Higher Regional Court in Bremen. Only future developments will show whether this interpretation will be upheld by the appellate court.
Why is this of interest to the Czech Republic?
In the Czech Republic today, there is no explicit legal obligation to inform consumers of a change in weight. At the same time, however, the Bremen ruling is based on an EU regulation, which is directly applicable in the Czech Republic. It provides an interpretation of a European regulation which is already binding on Czech manufacturers and distributors. If a similar dispute were to be brought before the Czech courts or supervisory authorities, it would be no surprise if similar arguments were put forward here as well.
Moreover, this is not an isolated decision. Other courts in Germany and Austria have already taken a similar approach, including in the Sanella and Atlantik-Lachs cases, amongst others.
So how should this be communicated to the customer?
This is the least convenient ruling in practice. The court stated quite clearly what is not sufficient: the weight information alone, the unit price on the shelf, or communication outside the point of sale. However, it did not say what a proper warning should look like in specific terms. A conspicuous notice about a change in weight is not exactly good for marketing – as it draws attention to the reduction in content, and often to a price increase as well.
At least one practical rule can be gleaned from the judgement: the warning must have a genuine chance of being noticed by the average consumer during a normal purchase. So, if a company changes the weight whilst keeping the packaging very similar, it should expect to have to communicate the change more visibly than it might wish to from a purely marketing perspective.
What does that imply?
The Milka case does not mean that reducing the size of packaging is prohibited in itself. However, it shows that less content, almost identical packaging and poor communication of the change can, taken together, create a legal issue.
For Czech companies, the key point is that, even in the absence of an explicit Czech obligation to provide information on changes in weight, the European framework prohibiting misleading food information may still be relevant. When planning changes to packaging, it is therefore not enough to focus solely on production, price and design. It is equally important to consider what the consumer will see on the shelf and how they will interpret the change.
