14 November 2013: AG Wathelet in Ehrmann (C-609/12)
We have been writing more often recently on the importance of health claims' regulation (see e.g., our comments on recent CJEU case concerning health claims - Green Swan). Today the AG Wathelet issued an opinion in a German case regarding further interpretation of health claims as regulated in Regulation No. 1924/2006.
Ehrmann is a producer and seller of diary products, including a fruity quark ("Monsterbacke") that is being sold as a six-pack of 50g each, mostly as a children healthy snack. The six-pack's packaging contains a nutrition label on its side listing nutrition value for 100g of this product. It is important to mention that 100g of the quark has, among others, 130mg of calcium and 13g of sugar, while the same amount of cow milk would have maybe the same amount of calcium but way less sugar (4,7g of sugar). Why am I making this comparison between the quark and the milk? Because the producer included in 2010 a slogan on top of each packaging stating something along the lines of: "As important as a daily glass of milk!" (I'm translating this from a Polish language version of the AG's opinion since the English one isn't available yet). Obviously, it could be claimed that this slogan was misleading since it did not mention the difference in sugar level in both products. What was interesting, and referred to the CJEU, was the possibility of this slogan being classified as a 'health claim' under the Regulation and, therefore, not being in compliance with its art. 10.
Art. 10 of the Regulation states, among others, that health claims are prohibited unless they are authorized and fully informative, and that health claims can only be permitted if they include on the label statements indicating importance of a varied and balanced diet and a healthy lifestyle, as well as the quantity of the food and pattern of consumption required to obtain the claimed beneficial effect. This article has not been fully complied with in the given example. While the national courts asked the CJEU for interpretation of some temporal law issues regarding the entry into force of this provision (AG decides that art. 10 requirements should apply as of 1 July 2007, like the rest of the Regulation), for us it is more interesting to look at the assessment of the slogan as a health claim adopted by the AG Wathelet.
Health claim is defined broadly in the Art. 2(2)(5) Regulation as:
"any claim that states, suggests or implies that a relationship exists between a food category, a food or one of its constituents and health".
As the CJEU previously decided (Deutsches Weintor) there are no limitations set in this definition as to whether the link between a product or its ingredient and health needs to be direct or indirect, how close this link needs to be or for how long it should be present. This means that this link could be easily found. (Par. 40) The slogan used by the company Ehrmann clearly indicates that their product is in the daily nutrition at least as important as a glass of milk. (Par. 47) An average consumer would presume, and the AG is basing this opinion on academic surveys, that milk has a beneficial influence on his health, especially on children's health. (Par. 48) If such a presumption wasn't common, then it would not make sense for the producer of dairy products to place this slogan on them. (Par. 49) Additionally, the slogan's wording 'as important as' indicates the link between the product and the information on it about a daily consumption of milk. (Par. 50) The slogan may, therefore, convince an average consumer (diligent and informed to a usual degree) that consuming these fruity quarks may be as beneficial to health as milk consumption. (Par. 51) Therefore, this slogan should fall within the scope of a health claim definition since it creates an impression that there is a link between consumption of this product and health. (Par. 52, 57)