On 16 June 2026 the French Council of State (Conseil d’État, decision No 508230, applicant Groupe Lactalis) stayed its proceedings against the arrêté of 14 March 2025, which introduced the new Nutri-Score algorithm, and referred two questions on Article 35(2) of Regulation (EU) No 1169/2011 (FIC) to the CJEU. The case is registered in Luxembourg as C-687/26. The Court has one question to settle: may a Member State recommend an “additional form” of the nutrition declaration that does not show the energy value and each nutrient separately but gives a single summary letter and colour, and if so, may that score include elements outside Article 30 (fruit, vegetables, nuts, sweeteners)?
1. The dispute: milk as a “beverage” in the algorithm
France introduced Nutri-Score by an arrêté of 31 October 2017, based on Articles L. 3232-8 and R. 3232-7 of the code de la santé publique, which refer expressly to Article 35 FIC. The arrêté of 14 March 2025 changed how the score is calculated. Using the logo is voluntary, but it requires joining the rules of use of the “Nutri-Score” collective trade mark, which is owned by Santé publique France (paras 2 and 10 of the decision).
Lactalis challenged the arrêté and page 18 of Santé publique France’s “Questions & Réponses”, which classifies milk, drinking yoghurts and flavoured or chocolate milk drinks as beverages rather than solid foods. The algorithm applies different coefficients to beverages (paras 3 and 9).
According to para 9 of the decision, the score combines an N (“negative”) component (energy, saturates, sugars, salt) and a P (“positive”) component (fibre, protein, fruit, vegetables, pulses). Separate coefficients apply to fats, nuts and seeds, and beverages. The result is shown on a scale of five letters from A to E and five colours from dark green to dark orange.
2. What the Conseil d’État decided itself, which the CJEU will not review
The court dismissed most pleas without asking the Court of Justice. None of the following is part of C-687/26:
- Competence (para 4): the decree of 19 July 2016 laid down sufficiently how ministers set the specification by arrêté.
- ANSES opinion (para 5): the agency was consulted on 19 September 2023 and gave its opinion on 5 December 2023. The fact that the short deadline did not allow it to critically review the work of the European scientific committee does not make the opinion irregular.
- TRIS notification (paras 6–10): the arrêté is a technical regulation under Directive (EU) 2015/1535, and the draft was notified to the Commission on 23 October 2023. The trade-mark rules and the “Questions & Réponses” create no new technical regulation, so they did not need notifying.
- Regulation 1924/2006 (para 11): Nutri-Score is not a nutrition or health claim. It is not a statement by the manufacturer but a logo applied under a specification set by a public authority, and it attributes no “particular property” to the food. The plea was held to be ineffective (inopérant).
- Conditions in Article 35(1)(a)–(g) (para 13): consultation was broad (including a September 2021 call for contributions, with more than a hundred contributions assessed). It was not shown that the logo misleads or is non-objective or discriminatory.
3. Question 1: must an additional form show energy and each nutrient separately?
Article 35(1) FIC allows “the energy value and the amount of nutrients referred to in Article 30(1) to (5)” to be given by other forms of expression or presented using graphical forms or symbols in addition to words or numbers, provided conditions (a)–(g) are met. Article 35(2) allows Member States to recommend to food business operators one or more such forms that they consider best fulfil those conditions, and requires them to give the Commission the details.
| Lactalis (para 14) | Minister of Health (para 15) |
|---|---|
| A form recommended under Article 35 must contain and distinguish the energy value and the nutrient amounts in Article 30. A single letter does not. | Article 35 covers forms that are additional to a declaration that already gives access to the Article 30 data. A letter or colour summary may better meet aim (c), helping consumers understand the food’s contribution to the diet. Paragraph 1 refers to energy and nutrients cumulatively, and paragraph 2 does not repeat that reference. |
The Conseil d’État found this a serious difficulty (para 16) and framed the question in two limbs. The first asks whether a State may recommend an additional graphic that “does not necessarily express distinctly” the energy value and nutrient amounts. The second asks whether it may recommend a graphic that expresses the overall nutritional value of the food simply and synthetically, by a letter or colour code, to meet the aim in Article 35(1)(c).
4. Question 2: fruit, vegetables, nuts and sweeteners in the algorithm
The second question is conditional: the CJEU answers it only if it answers the first one yes. Lactalis argued that the algorithm counts the share of fruit, vegetables and nuts and the presence of sweeteners, none of which appears in Article 30 (para 17). The Minister replied that Article 35 is not limited to Article 30 elements. In her view the share of fruit, vegetables and nuts is directly linked to fibre, which may be declared voluntarily under Article 30(2)(e), and consumers must be told about sweeteners under Article 10 and Annex III FIC (para 18).
Hence the precise wording of the question (para 19): may a synthetic form take into account or display elements outside the mandatory Article 30 declaration that are directly linked to those elements, or to elements subject to mandatory additional labelling under Article 10?
5. Three possible answers and their effects
| Scenario | What it would mean for Article 35(2) | Effect on the French dispute | Effect on operators |
|---|---|---|---|
| Q1: no | A State recommendation must remain a form of expressing the Article 30 energy and nutrients. An overall letter score falls outside paragraph 2. | The legal basis of the arrêté is undermined. The Conseil d’État rules after the CJEU answers. | National single-letter schemes lose their footing in Article 35(2). Label planning will have to follow the wording of the judgment and the reaction of national authorities. |
| Q1: yes, Q2: no | A letter summary is allowed, but only from Article 30 elements. | The problem becomes the algorithm (fruit, vegetables, nuts, sweeteners), not the logo itself. | The algorithm could change, and with it the scores of specific products, especially those high in fruit and vegetables or containing sweeteners. |
| Q1: yes, Q2: yes | States have wide latitude: a summary score plus elements directly linked to Article 30 or Article 10. | The Article 35 plea fails. What remains is the dispute over classifying milk as a beverage under the arrêté itself. | Status quo. Nutri-Score results still depend on the national algorithm and the trade-mark rules. |
The CJEU’s reading of Article 35 will matter to every Member State that recommends, or plans to recommend, a similar form, not only to France. No judgment date is known.
6. Supplements, FSMP and ordinary food: where Article 35 reaches at all
Food supplements: Article 35 does not apply
Article 29(1)(a) FIC disapplies the whole of Section 3 of Chapter IV (nutrition declaration, Articles 29–35) for foods covered by Directive 2002/46/EC. A supplement therefore has no mandatory FIC nutrition declaration, and Article 35 gives no basis for any “additional form”. Amounts of nutrients and other substances are declared under Article 8 of Directive 2002/46/EC, per recommended daily portion. See also repeating nutrition information on FSMP and supplement labels.
Whatever the outcome of C-687/26, it will not give supplements a route to a national logo under Article 35. In our assessment, any self-made “score” or ranking on a supplement will be judged as voluntary information: under Articles 7 and 36 FIC and, where it suggests beneficial properties, under Regulation 1924/2006 as well. The reasoning in para 11 of the decision (an administrative logo, not a manufacturer’s statement) does not automatically carry over to a mark the manufacturer created itself.
FSMP: Article 35 applies on paper, with hard limits
Article 6(4) of Delegated Regulation (EU) 2016/128 applies Articles 31–35 FIC to all nutrients in the FSMP nutrition declaration. The same article contains two derogations, though. Paragraph 2 derogates from Article 30(3) FIC: information in the mandatory declaration shall not be repeated on the labelling. That is an absolute ban, not a choice for the producer. Paragraph 6 rules out expressing values as a percentage of reference intakes. No additional form on an FSMP can therefore take the shape of a repeat of declaration values or a %RI. Whether a given national scheme covers FSMP at all depends on that scheme’s own rules, not on Article 35.
Ordinary foods with a mandatory declaration: this is where C-687/26 decides
Protein bars, functional drinks and meal replacements in category 18.2 (see Regulation 2025/2058) carry a mandatory declaration, so Article 35 applies to them directly. Nutri-Score stays voluntary. Under Article 35(3), however, a State may require operators to notify use of an additional form and to justify how it meets conditions (a)–(g).
7. Nutri-Score and claims under Regulation 1924/2006
Even on the Conseil d’État’s view that the logo itself is not a claim, two things do not follow from that ruling:
- The logo does not replace claim conditions. “Source of fibre” or “high protein” next to an A still has to meet the conditions in the Annex to 1924/2006, whatever the Nutri-Score result.
- Manufacturer commentary is not the logo. A line such as “scored A, so good for your heart” is the operator’s own statement linking the food to health. In our assessment it falls under Regulation 1924/2006, including Article 10(3) (general references to health benefits only when accompanied by a specific authorised claim). Para 11 of the decision concerns a logo applied under the specification, not marketing built around it.
The general fair-information rule in Article 7 FIC works alongside Directive 2005/29/EC (see CJEU C-301/25 Lidl Italia).
8. Operator checklist
- Product category. For a supplement, Article 35 does not apply (Article 29(1)(a)). For FSMP, Article 6(2) and (6) of Regulation 2016/128 apply. For ordinary food, Article 35 and the national scheme are what matter.
- Target markets. Nutri-Score is used under the collective trade-mark rules and national implementing acts. The outcome of C-687/26 may change either the legal basis or the algorithm.
- SKU exposure to Question 2. Products whose score depends on fruit, vegetable and nut content or on sweeteners are the most likely to be rescored.
- Milk drinks. The “beverage or food” classification currently comes from the “Questions & Réponses”. The dispute over it remains before the Conseil d’État.
- Claims. Every claim next to the logo must meet the conditions of 1924/2006. Copy such as “A = healthy choice” should be assessed as a claim.
- Article 35(3) notifications. In a State that requires notice of use of an additional form, discontinuation may also have to be notified if national law says so.
- Do not get ahead of the Court. The arrêté applies until the CJEU answers. Assume neither a “Nutri-Score ban” nor confirmation of the algorithm.
Glossary
- Article 35 FIC
- Additional forms of expression and presentation of the Article 30 energy value and nutrients. Conditions (a)–(g), national recommendations in paragraph 2, monitoring and possible notification in paragraph 3.
- C-687/26
- CJEU case number of the Conseil d’État reference (decision No 508230 of 16.06.2026, Groupe Lactalis).
- N and P components
- The “negative” elements (energy, saturates, sugars, salt) and “positive” elements (fibre, protein, fruit, vegetables, pulses) of the Nutri-Score algorithm, per para 9 of the decision.
- Sursis à statuer
- A stay of proceedings pending the CJEU’s answer. It neither annuls nor suspends the contested act.
- Article 29(1)(a) FIC
- Excludes food supplements (Directive 2002/46/EC) from the nutrition-declaration section.
Conclusion
C-687/26 is not about whether Nutri-Score “works”. It is about what Article 35(2) FIC allows a Member State to recommend: a single letter instead of separately shown Article 30 values, and whether fruit, vegetables, nuts and sweeteners may be counted in it. The Conseil d’État has already held that the logo is not a claim under 1924/2006 and has dismissed the procedural pleas, so the CJEU judgment can change at most the legal basis or the algorithm of the scheme, not the claims rules. For supplements, Article 35 does not apply by virtue of Article 29(1)(a). For FSMP, even where Article 35 applies, the repeat ban in Article 6(2) of Regulation 2016/128 holds. The real effects of the judgment will fall on ordinary foods with a mandatory declaration.
Primary sources
- Conseil d’État, decision No 508230 of 16.06.2026 (1st and 4th chambers, Groupe Lactalis; hearing 27.05.2026), paras 1–20 and operative part. Copy: Juricaf.
- Conseil d’État: list of preliminary references (case 508230, CJEU number C-687/26).
- Regulation (EU) No 1169/2011: Articles 7, 10, 29, 30, 35, 36; Annexes III and V. CELEX 32011R1169.
- Regulation (EC) No 1924/2006: Article 2(2)(4) and (5), Article 10(3).
- Delegated Regulation (EU) 2016/128: Article 6(2), (4) and (6) (FSMP).
- Directive 2002/46/EC: Article 8 (food supplements).
- Directive (EU) 2015/1535: technical-regulation notification procedure (TRIS).
- CURIA: case C-687/26 (Court register).