EU Court of Justice recently confirmed, in a judgement of 16 March 2016 (1), that a number of health claims related to glucose cannot be authorised :
- Glucose is metabolised within the normal energetic metabolism of the body
- Glucose supports physical activity
- Glucose contributes to the proper functioning of the metabolic system
- Glucose contributes to the functioning of energy metabolism during physical activity
- Glucose contributes to normal muscle function during physical activity
The German company Dextro Energy who manufactures products consisting of glucose sugar has asked the competent German authority, under Regulation 1924/2006, to authorise the use of several health claims according to which the consumption of glucose favours a good metabolism. The European Food Safety Authority (EFSA) issued a positive opinion on these allegations, considering that a link can indeed be established between the consumption of glucose and a good metabolism.
Despite this positive advice, the European Commission refused to authorise those claims and considers that they would convey an ambiguous message to consumers. The Commission believes that this kind of claim encourages the consumption of sugar whereas national and international authorities recommend a reduction based on generally accepted scientific studies and advice. Even if those claims were to be accompanied by specific conditions of use or by additional warnings, the Commission maintains that the message would remain confusing for consumers with the consequence that those claims should not be authorised.
The Court of Justice dismisses the action brought by Dextro Energy on the grounds that even if the Commission should indeed take into account the opinion of EFSA (positive in this case), it must also consider the applicable EU legislation and all other legitimate and relevant factors.
This decision underlines the fact that the Commission has a large discretionary power when it comes to authorising a new health claim. In the context of such power, a mere scientific risk assessment is not sufficient. The Commission must also take political, economic and social factors into account. In this regard, the Court acknowledges that generally admitted nutritional and health principles are legitimate and relevant factors. On this subject, one may also rely on Recital (12) of Regulation 432/2012 establishing a list of permitted health claims which already emphasised the same arguments regarding the rejection of health claims relating to the beneficial effects of fats on vitamin absorption.
As a consequence, since the Commission considers the reduction of sugar consumption as a generally admitted nutritional and health principle, the Court of Justice deems that it was not wrong to state that it would be ambiguous and misleading to the consumer to authorise claims highlighting the benefits of glucose. Those claims must thus not be authorised.
All in all, it does appear from this decision that the discretionary power of the Commission regarding health claims is very important. Moreover, even if member states never managed to come to an agreement on the long-awaited nutrient profiles, the Commission seems to be establishing such profiles on case-by-case assessment logic.