The first judicial interpretation of the controversial EU Nutrition and Health Claims Regulation has just been released. The case is Deutsches Weintor eG –v- Land Rheinland-Pfalz and the judgment comes from the European Court of Justice so it carries considerable authority.
The Court has given a wide interpretation to the phrase “health claim”. As a consequence statements on labels and in advertising which some food producers were hoping would not be caught by the Regulation will in fact be subject to its requirements, and will need to be approved by the European Food Safety Authority after submission of scientific substantiation. On the other hand, some food businesses which have had claims rejected by the EFSA on the basis that they do not relate to health, may want to consider renewing their applications for those claims to be approved.
The case related to a German wine which is labelled with the claim “Mild Edition – easily digestible”. At the time when the facts arose, the list of generic health claims had not been adopted, so the issue of whether or not this claim had been approved through the European process did not arise. Rather, the issue that came before the Court was the ban in the Regulation on making any health claim about a product containing more than 1.2% per volume of alcohol.
Because of that ban, the German authorities argued that the claim was illegal since it was a health claim made in connection with an alcoholic beverage. The wine growers argued that the claim was true because normal wines were harder to digest than the Mild Edition, and they said that pointing this out was not a health claim because the benefit was a temporarily or fleeting effect and not a permanent improvement to health.
One of the problems with the Regulation is that the definition of what amounts to a health claim is rather vague: Article 2 merely states that a “health claim” is “any claim that states, suggests or implies that a relationship exists between a food category, a food or one of its constituents to health”. No explanation is given as to what is meant by the word “health”.
Hitherto the EFSA and food lawyers have tended to try and “flesh out” this definition by looking at the specific examples of health claims which are listed in Articles 13 and 14. Article 13 refers to the following as health claims:-
- Claims referring to the role of a nutrient or other substance in growth, colour, development and the functions of the body;
- Claims referring to psychological and behavioural functions;
- Claims referring to slimming or weight control.
Article 14 adds claims referring to the risk of disease and claims referring to children’s development and health.
Many commentators have taken these instances listed in Articles 13 and 14 as an exhaustive definition of what amounts to a “health claim”, but it is clear from the judgment that this view must now be revised. The Court did not even refer to Articles 13 and 14 when deciding what amounts to a “health claim”. The Court did refer to the first recital in the Regulation and said that this indicated that it applies to a claim referring to any “nutritional, physiological or any other health advantage” over similar products. Moreover the concept of a health claim included not only a claim about an improvement in health resulting from consuming a particular food but also a claim which referred to the absence or reduction of affects that are adverse or harmful to health which would otherwise accompany or follow consumption of a particular kind food.
The Court referred to the fact that the benefit in this case is temporary or fleeting since it lasts only so long as the digestion of the wine is taking place. However it is not clear from the judgment whether a claim about a merely temporary effect is enough for a claims to amount a health claim: on the facts of the case the Court decided that there was also an implied claim of an ongoing benefit which would stem from repeated consumption of this easily digestible wine as opposed to sustained adverse effects from repeated consumption of ordinary wine.
The consequence of the Court’s conclusions was that the claim “Mild Edition – easily digestible” was a health claim, with the result that the labelling was illegal because a health claim cannot be made in connection with an alcoholic beverage.
As an interesting side issue, the wine growers also argued that a ban on their ability to make a health claim in connection with wine, even when the claim was true, was contrary to their fundamental freedoms under the European Treaty to conduct a business. The Court gave that argument fairly short shrift on the basis that this freedom is subject to laws necessary to protect health and the Court ruled that the ban on the making of claims in connection with alcoholic products was justified because of the health risks of consumption of alcohol.
While the European Court’s decision does not give us an exhaustive definition of “health claim”, the Court certainly has given this phrase a fairly broad interpretation. Food businesses will need to bear in mind the following passage in the judgment:-
“As is apparent from a reading of Recital 1 in conjunction with Recital 10 in the preamble to Regulation 1924/2006, it is established that, by indicating a nutritional, physiological or any other health advantage over similar products, claims promoting the foods in which they appear guide the choices made by consumers. Those choices directly influence the total intake of individual nutrients or other substances, thereby warranting the restrictions imposed by that Regulation in relation to the use of those claims. “
In other words, a health claim is any indication of nutritional, physiological or any other health advantage. What is more, it includes any claim of a food being “less unhealthy” than any other food and possibly it includes claims about temporary or fleeting benefits.
Food businesses should re-examine decisions they have taken about whether particular claims they make are health claims.