On 10 April 2014 in Ehrmann AG/ Wettbewerbszentrale (Case C-609/12), the Court of Justice of the European Union ("CJEU") provided clarification on the requirements of Regulation No. 1924/2006 on nutrition and health claims (the "Regulation") that applied to business operators for the period preceding the adoption of the lists of authorized health claims referred to in Article 13 and 14 of the Regulation and more generally the application of the transitional measures.
Ehrmann is a producer and distributor of milk products. Its range of products includes a fruit quark sold under the name "Monsterbacke", which in 2010 was offered for sale in packs of six cartons bearing the advertising slogan "As important as a daily glass of milk!".
The issue was that while the nutrition table on the packaging showed that the product had a calcium content equivalent to that of a glass of milk, the sugar content was about three times higher.
In that context, the Wettbewerbszentrale, i.e., the unfair commercial practices authority in Germany brought an action before the Landgericht Stuttgart on the basis that the slogan was both misleading and an unauthorized health claim. The dispute escalated to the German Supreme Court which took the view that the tagline was not misleading but amounted to a health claim. Referring to the CJEU's previous ruling in the Weintor case (C-544/10), the Court reasoned that the public perceived milk as having a positive effect on health, in particular for children and young people, especially because of its mineral content. Against that backdrop, the German Supreme Court considered that the slogan expressed a positive effect of the product by comparing it to a daily glass of milk, suggesting a link between that product and the consumer’s health. The Court concluded that such a link was sufficient to establish a health claim concluded the Court. This reasoning and assessment of the slogan as a health claim was endorsed by the Advocate General in his Opinion.
Having determined that the slogan was a health claim, the German Supreme Court observed then that the labelling of the fruit quark did not comply with the requirements of Article 10(2) of the Regulation which provides that health claims are only permitted to the extent that certain information is included in the labelling. This information includes (i) a statement indicating the importance of a varied and balanced diet and a healthy lifestyle; (ii) the quantity of the food and pattern of consumption required to obtain the claimed beneficial effect; and (iii) where appropriate, a statement addressed to persons who should avoid using the food and an appropriate warning for products that are likely to present a health risk if consumed to excess.
The Court noted that at the relevant time, i.e., in 2010 when the slogan appeared on the labelling, the Regulation was in force but the lists of authorized health claims had not been compiled yet and it was unclear as to whether the requirement set out in article 10(2) of the Regulation were already applicable. Accordingly, the Court asked the CJEU whether it was necessary for Ehrmann to have complied with the obligations to provide information under article 10(2) of the Regulation at the time.
The CJEU first noted that the Regulation entered into force on 19 January 2007 and was applicable from the 1 July 2007. The CJEU confirmed then that pursuant to article 10(1) of the Regulation and in order to be admitted, health claims must comply with the general and specific requirements set out in the Regulation and be included in the lists of authorised claims provided for in Articles 13 and 14 of the Regulation. The requirements of Article 10(2) were in addition to those laid in Article 10(1). In other words, to be admissible, health claims must also include the mandatory information referred to in Article 10(2) of the Regulation.
In 2010, the list of authorized health claims referred to in Article 10(1) of the Regulation had not yet been adopted and published. The CJEU considered the transitional measures of the Regulation and in particular Article 28(5). This article stated that the health claims referred to in Article 13(1)(a), i.e., health claims describing or referring to the role of a nutrient or other substance in growth, development and the functions of the body, could be made from the date of entry into force of the Regulation until the adoption of the list, provided that food business operators complied with the Regulation (as well as with existing national provisions applicable to them).
In that context, the CJEU held that it was for the national court to determine whether the slogan would fall within Article 13(1)(a) and whether it complied with Article 28(5). But if it was the case, then the labelling must include the information referred to in Article 10(2). There was no stipulation in the Regulation that Article 10(2) would only apply after the list of authorised claims had been adopted.
In conclusion, the CJEU held that the fact that the list of authorised claims referred to in Article 13 has not been adopted at that time did not release a food business operator from its obligation to give the consumer the information stipulated in Article 10(2). The decision of the Court means that consumer protection must also be guaranteed where a claim was made in accordance with the transitional measure under Article 28(5).