ECJ’s German health claim ruling opens door to rejected claims: Lawyer

In a company blog, Owen Warnock, partner at UK law firm, Eversheds, highlighted the two-pronged effect of the ruling that found comparative digestion claims for a wine product were health claims under the NHCR and therefore not usable for products with alcohol content over 1.25%.

“​The Court has given a wide interpretation to the phrase ‘health claim’,”​ Warnock observed.

“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.”​

How broad?​

The ruling did however come with a caveat that may restrict overly broad readings. It stated that NHCR-approved claims guided consumption and therefore, “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.”

The ECJ also rejected another aspect of the case made by the German wine maker, that the NHCR restriction on alcohol claims was a restriction of free commercial speech.

Warnock said: “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.”​

He said the NHCR was open to such interpretations as those that had been raised in the case because the very definition of health claims was ambiguous in the regulation.

“​​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,”​ Warnock concluded.

The ECJ ruling can be found here.​​