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For over 50 years, the Matterhorn has adorned the packaging of Toblerone – but soon the Matterhorn will have to disappear from the packaging. The reason for this is the outsourcing of parts of the production to Slovakia. As a result, the traditional Swiss chocolate no longer meets the “Swissness” criteria. The relocation of production not only affects “Swissness” legislation, but also food law declaration regulations.

The well-known chocolate brand “Toblerone”, which is available in more than 120 countries worldwide, has its roots in Switzerland. Until now, the traditional Swiss chocolate has been produced exclusively in Switzerland. This year, part of the Toblerone production will be relocated from Bern to Slovakia. The consequence: no Swissness and no Matterhorn.

The background to this is the so-called “Swissness” legislation. This is the Federal Act on the Protection of Trademarks (MschG; SR 232.11) and Federal Act on the Protection of the Swiss Coat of Arms and other Public Signs (WschG; SR 232.21) as well as the associated ordinances. The “Swissness” legislation is intended to protect the value of the “Swiss brand” from free riders, giving companies producing in Switzerland a competitive advantage. “Swissness” provides companies with a decisive added value and thus represents an important sales argument.

Swissness” legislation defines the requirements for goods or services to be labelled as “Swiss”. Labels such as “Swiss made”, “Made in Switzerland”, “of Switzerland” or other indications or images referring to Switzerland, such as the Swiss cross or the figure of “Wilhelm Tell”, indicate that the goods or services come from Switzerland. The use of this indication of origin “Switzerland” is voluntary and does not require authorisation. It is up to the companies themselves to assess whether the legal criteria are met. Thus, the responsibility for the use of the indication of source in accordance with the law also lies with the companies themselves. The minimum requirements include the origin of the products, the use of Swiss raw materials and processing and marketing in Switzerland. A certain standard of product quality is also required.

Art. 48b MschG regulates in detail the requirements for the use of the Swiss indication of source for foodstuffs such as chocolate. A raw material-based approach is applied. At least 80% of the weight of the raw materials that make up the food must come from Switzerland. In the case of milk and milk products, 100% of the weight of the raw material milk is required. In addition, the main processing step, i.e. the one that gives the food its essential properties, must take place in Switzerland.

Even if the transfer of Toblerone production to Slovakia is only partial, this means that Toblerone no longer has enough “Swissness”. Accordingly, the Matterhorn may no longer be used on the packaging of the chocolate. Furthermore, the trademark addition “of Switzerland”, which is located just below the large Toblerone lettering, must be changed to “established in Switzerland”.

The “Swissness” criteria are to be distinguished from the declaration regulations under food law. According to Art. 3 para. 1 lit. h of the Food Information Ordinance (LIV; SR 817.022.16), anyone placing pre-packaged food on the market must at least indicate the country of production on the packaging. This information serves to inform consumers. A product manufactured in Switzerland, regardless of whether it fulfils the “Swissness” criteria, must therefore always contain the indication of origin “manufactured in Switzerland” on the back of the packaging, in addition to the other mandatory information, such as that on allergens. Since Toblerone is no longer produced in Switzerland within the meaning of Art. 15 para. 1 and 3 LIV due to the relocation of production to Slovakia, the back of the packaging must also be adapted accordingly due to the declaration regulations under food law.

The current revision of various ordinances in the food sector (revision package “Stretto 4”) at least brings some relief with regard to the declaration of the origin of ingredients. For example, the Food Information Regulation is being adapted to EU law. In contrast to the indication of the country of production (see above), the declaration of origin in Switzerland only has to be made if the ingredient is contained in a significant quantity (share of more than 50% of the food) (Art. 16 para. 1 let. a and para. 3 LIV) and if the presentation of the packaging of the food suggests a different origin of the ingredient (protection against deception, Art. 16 para. 1 let. b LIV). However, the obligatory indication of the country of production in Switzerland may be sufficient in the EU to trigger the obligation to declare the origin of the individual ingredients if the country of production and the country of origin of the ingredient do not coincide. Accordingly, it can happen that the same pre-packaged foodstuff has a different label in Switzerland and in the EU in order to comply with the legal requirements. There are considerable costs associated with adapting these labels. In order to reduce these trade barriers, the current revision of the Food Information Ordinance creates the possibility for the voluntary indication of the origin of ingredients to indicate superior geographical areas in positive wording (such as “EU” or “South America”). However, associations such as the industry association “Chocosuisse” demand that negative declarations ([ingredient x] does not come from [production country y]) should also be allowed, as in EU legislation.

Thus, Mondelez as the owner of Toblerone not only had to redesign the front of the packaging due to the Swissness legislation by replacing the Matterhorn with a simpler mountain and “of Switzerland” with “established in Switzerland”, but also had to adapt the information on the back due to the declaration obligations under food law. Whether the loss of “Swissness” will also have a negative financial impact remains to be seen.