The European Court of Justice has rejected a challenge filed by German law professors who submitted a claim to test the limits of the nutrition and health claims regulation (NHCR) by seeking authorization of the following claim: “Regular consumption of significant amounts of water can reduce the risk of development of dehydration and concomitant decrease of performance.” Hagenmayer v. Euro- pean Comm’n, Case No. T-17/12 (E.C.J., decided April 30, 2014). German authorities forwarded the request to the European Food Safety Authority (EFSA) to allow the claim. EFSA concluded that the “risk factors proposed by the applicants were measures of water depletion and thus measures of the disease [and thus] the claim at issue did not meet … the requirements of a claim relating to the reduction of a disease risk.”Thereafter, the European Commission adopted a regulation refusing  to make certain health claims on foods; the water claim was “not on the list of permitted claims of the European Union,” because the reduction of a risk factor for developing a disease had not been demonstrated.

The applicants challenged the determination, seeking its annulment, and significantly were found to have standing under the NHCR to make the proposal. According to the court, “the legislature intended to permit any natural or legal person to make an application for leave and it did not restrict the circle of applicants for authorization.”The applicants’ standing was not, in the court’s view, “undermined by the argument of the Commission that the applicants have only a theoretical interest in the Regulation.” Still, the court disagreed with the applicants that the “Commission wrongly considered mandatory designation of a risk factor for disease development.” In this regard, the court rejected arguments including that (i) EFSA’s scientific assessment procedure is devoid of transparency and leads to inconsistent results,(ii) the Commission infringed the principle of proportionality and equal treatment in authorizing in the past “similar allegations relating to the reduction of disease risk in the absence of designation of any risk factor,”and (iii) proper procedures were not followed in issuing the regulation.

According to a news source, the German professors are weighing their options, including whether an appeal is merited. They were ordered to pay their own and the Commission’s costs.

Meanwhile, a recent survey of NHCR food and nutrition sector stakeholders showed that most—84 percent—found the law just as devastating to their interests as when it was adopted. Respondents claimed that the law inappropriately imposes pharmaceu- tical-like scientific support for foodstuffs and nutrients. One critic said, “The NHCR has banned 100s of claims on products that consumers across Europe have been familiar and comfortable with for years. Claims such as ‘dietary fibre helps maintain a healthy digestive system’and ‘glucosamine helps maintain joints’are both well understood. To ban these, and claims like them, not only prevents our industry from developing products based on well-documented science, but also causes confusion in the minds of our consumers.”See Food&, May 2, 2014.