The action, lodged by professors Moritz Hagenmeyer and Andreas Hahn, asserts the EU nutrition and health claims regulation (NHCR) should be “declared void” on nine separate grounds including:
- Arbitrary and unnecessary reliance on ‘reduction in disease risk factors’ (“legally unjustified”)
- The existence of a disease risk factor in their own article 14 submission rejected last year
- Non-proportionality
- Breach of “essential procedural requirements”
- Breach of time limits
The case will be heard in the European Court of Justice and is the first time the NHCR has been challenged in European courts. The action is published in the latest edition of European Food and Feed Law Review.
The professors had submitted the claim: “Regular consumption of significant amounts of water can reduce the risk of development of dehydration and of concomitant decrease of performance.”
The European Food Safety Authority (EFSA)’s Panel on Dietetic Products, Nutrition and Allergies (NDA) rejected the claim, saying these were, “measures of water depletion and thus are measures of the disease (dehydration).”
It therefore concluded: “…the proposed claim does not comply with the requirements for a disease risk reduction claim pursuant to [the NHCR].”
Subsequent EC and member state deliberations brought no revision, prompting the professors to ponder legal action.
Risk factors
The court action makes the case that the concept of ‘reduction of disease risk’ that is so fundamental to the NDA claims assessment process, is not written into the regulation itself, and therefore invalid.
“[EU regulation No. 1170/2011 – where the rejection is written into law] has to be declared void, because the defendant has declared the mentioning of a ‘risk factor’ compulsory for an application for authorisation although such an obligation does not follow from the Regulation [NHCR – 1924/2006].”
They highlight what they see as an inconsistency between the ruling handed them and that for a xylitol-dental carries claim, which was positive.
In that instance they noted that the NDA changed the proposed wording to make it fit the disease risk factor reduction model, but their application was given no such treatment.
“That is legally unjustified.”
After publication professor Hahn sent an email stating: "We think that our arguments are convincing. Nevertheless nobody knows whether this will be a political decision."