Tuesday, 13 June 2017

General nutrition and health principles for reduction of sugar consumption - CJEU in Dextro Energy (C-296/16 P)

In anticipation of more directly consumer law-related judgments of the CJEU (tomorrow the judgment will be given in the first case pertaining to the ADR Directive), it might be interesting to bring our readers' attention to the judgment of 8th of June in the Dextro Energy case (C-296/16 P). The CJEU dismissed the appeal against the General Court's judgment, upholding its decision. The case pertained to nutrition and health claims.

Dextro Enegry is a producer of various products made mostly of glucose, which are sold on the German and European markets. In 2011 it requested authorisation of various health claims, such as "glucose contributes to normal energy-yielding metabolism" or "glucose contributes to normal muscle function". Pursuant to Regulation No 1924/2006 health claims need to be authorised and included on the list of authorised health claims before they can be used by producers. In 2015 the Commission refused, however, to authorise these health claims as they were seen to convey "a contradictory and ambiguous message to consumers, as they encouraged the consumption of sugar, whereas national and international authorities recommended a reduction in sugar intake, on the basis of generally accepted scientific advice." (The Court confirms that a number of health claims relating to glucose cannot be authorised) The Commission's opinion was not changed in case the health claims would be used only under specific conditions or accompanied by additional warnings. Dextro Energy relied on the positive opinion of the European Food Safety Authority (EFSA) stating that there is a causal link between the consumption of glucose and normal energy-yielding metabolism. Despite the Commission not questioning the EFSA's opinion, the General Court refused to authorise these health claims, considering that other relevant and legitimate factors might have led the Commission to its decision.

The interesting finding of this case is the General Court's recognition of generally accepted nutrition and health principles, pursuant to which average consumers must reduce their sugar consumption (par. 58). Such principles stand in this case in the way of authorising the use of nutrition and health claims that even if accurate may endanger consumer health.

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