The General Court of the European Union has supported the Commission's finding that health claims made in relation to glucose tablets encouraged the consumption of sugar, that such encouragement was contrary to generally accepted principles of nutrition and health and therefore such claims could not be made even though the European Food Safety Authority (EFSA) had confirmed the accuracy of the claims. (Dextro Energy GmbH & Co KG v Commission – Case T-100/15).

This decision is interesting because notwithstanding the scientific accuracy of the claims they were not authorised since such claims conflicted with the Commission's view on health and nutrition advice to reduce sugar intake.

The decision is also interesting in the context of the announcement in the UK Budget that a sugar tax on the makers of sugar sweetened beverages will be introduced in 2018.

The Facts

Commission Regulation (EC No 1924/2006) ("the Food Claims Regulation") sets out the legal framework relating to nutrition and health claims made in relation to food products and is designed to ensure a high level of protection for consumers and to facilitate their choice of a varied and balanced diet.

Health claims relating to foods are prohibited unless the claims are authorised by the Commission and are included in a list of permitted claims under the Food Claims Regulation. The claims must also undergo a scientific assessment by EFSA.

Dextro Energy GmbH & Co. KG submitted for assessment by EFSA and for authorisation by the Commission the following claims in relation to its glucose products: "Glucose is metabolised within the body's normal energy metabolism", "Glucose contributes to normal energy-yielding metabolism ", "glucose is metabolised within the body's normal energy metabolism during exercise", "glucose supports normal physical activity" and "glucose contributes to normal muscle function during exercise".

On the basis of the presented data the claims were assessed favourably by EFSA.

However, the Commission refused to authorise these health claims on the basis that claims that were, in the Commission's view, inconsistent with generally accepted nutrition and health principles should not be made. The use of the proposed health claims would, in the Commission's view, convey a conflicting and confusing message to consumers because it would encourage the consumption of sugars in circumstances where the intake of sugar was recommended to be reduced by national and international authorities. This purported conflict and confusion could not be alleviated by imposing specific conditions of use or additional statements or warnings. The claims were therefor not authorised.

Dextro applied to the General Court of the European Union to annul the Commission's decision. The General Court upheld the Commission's decision and dismissed Dextro's action. Health claims which highlight only the beneficial effects of glucose for energy metabolism without referring to the risks associated with increased sugar consumption, were ambiguous and misleading and therefore could not be authorised in the Court's view.