Thursday, 8 May 2014

How organic must be an organic product? – AG Sharpston in Herbaria Kräuterparadies (C-137/13)

The today’s opinion of AG Sharpston concerned the case of Herbaria Kräuterparadies GmbH who manufactures Blutquick - a food supplement, being a fruit juice mixture with herbal extracts and consisting mainly of organic ingredients, but also of non-organic vitamins and iron. Its label refers to organic production within the meaning of Article 23 of Regulation No 834/2007 and contains a claim: ‘Iron supports the normal formation of red blood cells and haemoglobin’. Herbaria was ordered by the Bavarian authorities to remove the reference to organic farming in the labelling because of the infringement of Article 23(4)(a)(i) of Regulation No 834/2007 in conjunction with Article 19(2)(b) of Regulation No 834/2007 and Article 27(1)(f) of Regulation No 889/2008. The authorities claimed that in order to advertise a product as organic, the minerals and vitamins could only be added to it to the extent that their use was legally required in the foodstuffs in which they were incorporated. There was no such legal requirement for Blutquick as it was not a product covered by the German dietetic foods regulation. According to the German authorities, Blutquick’s introduction to the market was authorised under Regulation No 1924/2006, which does not require foodstuffs and food additives to contain vitamins or to be enriched with ferrous gluconate. As a result, the product could not be labelled, advertised or marketed bearing the reference to organic production regulated by Article 23 of Regulation No 834/2007. Herbaria challenged that decision and the national administrative court referred to the Court of Justice for a preliminary ruling.

AG Sharpston assessed that those provisions are to be interpreted restrictively. In particular, recital 22 in the preamble to Regulation No 834/2007 states that, in order to maintain consumer confidence, exceptions to the requirements applicable to organic production should be strictly limited to justified cases. Therefore, only when there was a direct legal requirement to add a specific non-organic substance in the processing of the food in question, that food may keep on the ‘organic’ label. AG Sharpston pointed out that there is no legal requirement under EU or national law for a fruit juice mixture with herbal extracts sold simply as a foodstuff, whether organic or not, to contain any specified quantity or iron or of any particular vitamin. If for marketing purposes such vitamins or minerals need to be added to justify health claims made on the product that does not create a requirement in the meaning of Art. 27(1)(f):

Article 27(1)(f) of Commission Regulation (EC) No 889/2008 of 5 September 2008 laying down detailed rules for the implementation of Council Regulation (EC) No 834/2007 is to be interpreted as meaning that the use of the substances referred to is legally required only when a provision of EU law or a provision of national law compatible with EU law directly requires, in respect of the foodstuff in which the substances referred to are to be incorporated, that such substances must be added, or at least lays down a minimum content thereof, before that foodstuff may be placed on the market.
There is no such requirement where the marketing of a foodstuff as a food supplement, with a nutrition or health claim or as a foodstuff for a particular nutritional use would, without the addition of one or more of the substances referred to, tend to mislead the consumer because the foodstuff cannot, in the absence of such substance or substances in sufficient strength, fulfil its stated purpose as a foodstuff or its stated purpose as expressed by the nutrition or health claim. Nor is there such a requirement where a specific nutrition or health claim may be used only for foodstuffs which contain a ‘significant’ amount of the substance or substances referred to.’ (Paragraph 67)

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