Sealed without a reason - CJEU in slewo (C-681/17)

The CJEU upheld today the opinion of AG Saugmandsgaard Øe (If it can be cleaned, it can be returned?...) in the case slewo (C-681/17). Therefore, the CJEU decided that goods such as a mattress, which is covered by a protective film that would be removed by consumers when they try on this mattress upon its delivery, are not exempt from being sold with the right of withdrawal. Article 16(e) Consumer Rights Directive does not apply as these goods cannot be seen as 'sealed goods which are not suitable for return due to health protection or hygiene reasons and which have been unsealed by the consumer after delivery'. The CJEU emphasises the need to interpret exceptions to the right of withdrawal in CRD strictly (para 34). Pursuant to the objective of the exception from Art. 16(e) CRD it aims to protect sellers from consumers returning goods that have been compromised by breaking a seal to an extent that it would be unsafe to resell such goods. A mattress does not classify as such a good, as it can be reused or resold, the CJEU gives here an example of a hotel where many people would use the same mattress and of a possibility to deep-clean mattresses (para 42). Just like the AG, the Court compares the mattress to clothing - that may come in contact with human body while being tried on (paras 43-45). Finally, the Court reminds that any unfairness towards traders should be removed by them being able to hold consumers liable for the diminished value of the goods (para 47).

By narrowly interpreting exceptions to the right of withdrawal, the CJEU increases consumer protection with this judgment. However, I could understand the frustration of traders with it. Cleaning of products does not come for free and not all stains are easily removed. The possibility to claim compensation from consumers for the diminished value of the goods is only an option when the consumer went beyond the scope of just testing the goods during the cooling-off period. On more than one occassion I have received clothing ordered online, which had make-up stains on it - clearly from consumers who tried this product on previously (within the scope of testing the product). Of course, similarly stained clothing can be found also in offline stores, as consumers may try clothes on in fitting rooms, whilst wearing make-up, deodorant etc. The difference for traders is that they may prevent consumers from trying on clothes in their stores, e.g. by not providing fitting rooms. When the clothes (or similar goods, like mattresses) are, however, purchased online, their means of protection were to try to seal the goods and thus deny consumers the right of withdrawal. This method is, however, no longer viable.

Consumers in the age of digital health and AI

The European Consumer Organisation - BEUC - recently published a new position paper on digitalisation in healthcare. The paper comes at the right time as the impact of digital technologies on health products and services indeed continues to grow. The potential benefits are recognized: better access to medical care, more effective prevention, diagnosis and treatment of diseases, support of healthy lifestyles. However, as pointed out by BEUC, the risks are also present. The issues of consumer privacy, security and safety are listed among the most salient ones.

Main insights

The position paper makes reference to the eHealth communication of the European Commission, which focused on three areas: 

1. citizens' right to secure electronic access and share their health data (improving electronic health record systems), 
2. improved research, disease prevention and personalised medicine (pooling data resources and using common standards),
3. digital tools for citizen empowerment and person-centered care (shifting focus from disease treatment to health promotion and well-being, supported by digital solutions such as wearables and mHealth apps).

While endorsing these general objectives, BEUC - as was to be expected - emphasises the need for adequate consumer safeguards. This general observation is followed by a list of more specific principles and recommendations. We sketch some of them further below - for more details we invite our readers to consult the original paper.

Consumers' control over their personal health data (including the right to decide about data-sharing, to access one's own data and to report on possible errors) features prominently throughout the paper. This translates into a call for a diligent implementation of the General Data Protection Regulation with respect to this sensitive category of personal data. Importantly, BEUC argues, data protection safeguards are also relevant in the context of electronic health records and relationship between patients and physicians.

Another eminent topic addressed in the paper are the digital health tools, which, in view of BEUC, should respect the principles of privacy and security by design and by default and remain under supervision of competent authorities. The paper emphasises the connection between security and safety by providing an illustrative example of a hacked pacemaker. An argument is also made for a minimum set of security measures for all digital health connected products, including mobile health applications, as an ex ante market access requirement. Medical Devices Regulation, Radio Equipment Directive and General Product Safety Directive are listed among key instruments to be revisited in this context.

Consumers and artificial intelligence (in healthcare)

An interesting part of the BEUC paper concerns the growing deployment of artificial intelligence in the healthcare sector and in consumer markets more generally. Indeed, the advances in machine learning have made it possible to generate operable knowledge from the previously intransparent data sets. As a result, data contained in health records as well as vast amounts of data produced through our daily use of digital products and services have become an even more valuable resource. The prospect of AI transforming the way diseases are prevented, treated and diagnosed is anything but exciting. A look at the website of IBM Watson Health will give the reader a good impression. However, as pointed out by BEUC, the picture is not always so rosy.

The observations which BEUC makes in this regard largely follow its earlier position paper on automated decision-making and artificial intelligence. Similar issues were also pointed out in the European University Institute's working paper on consumer law and AI published a couple of months ago. They concern, in particular, the growing information asymmetry and power imbalance, the impact on consumers' decision-making capacities, implications for access to essential services and the risk of discrimination. These, of course, are only early contributions and both the extent of indicated problems and the possible remedies must still be investigated. Considering the growing interests in AI of both scholars and policymakers further research is certainly to be expected.

"Eat ORIGINal! Unmask your food" initiative

With the introduction of the Lisbon Treaty EU citizens' empowerment increased due the setting up of the European Citizens' Initiatives. One such initiative has been registered this month - "Eat ORIGINal! Unmask your food". The goal thereof is to ensure that all food products have a mandatory declaration of origin. This could not only better inform consumers on their food products' choices but also aims to protect their health and prevent fraud. The registration of this Initiative is to take place on October 2nd. This will be followed by collection of signatures in support of this project - 1 million is necessary within a year, from at least seven different Member States. If this threshold is achieved then the Commission will need to react to the Initiative. 

More information on this initiative will be available as of Ocobter 2nd! (through these links)

E-cigarettes not the same as cigarettes - Commission decides against harmonisation of duties for e-cigarettes

Consumption of e-cigarettes is on the rise with consumers using them as they consider them a ‘healthier’ alternative to traditional cigarettes or a way to cut down on smoking.(see a surveyconducted by Ernst and Young) Therefore, regulating e-cigarettes and their relationship with traditional tobacco products can be highly controversial. 

Traditional tobacco companies who have seen their sales fall argue that e-cigarettes are not adequately regulated. In a recent interview, Commissioner for Health and Safety Andriukaitis said that tobacco industry is feeling the pressure from EU regulation and expressed concern that EU citizens seem to consider e-cigarettes harmless. 

The latest development in the field is the publication by the European Commission of a Report on Directive 2011/64/EU (hereafter ‘the Directive’). Directive 2011/64/EU is the main regulatory instrument for excise duties for tobacco products. Tobacco products are broadly places in two categories: 1) cigarettes and 2) other tobacco products.

The current report is part of the evaluation every 4 years mandated by art.19 of Directive 2011/64/EU. The Commission considered a revision of the Directive and decided against it and the newly published report sets out the reasons for that. One of the topics considered for review was the harmonisation of excise duties for e-cigarettes. It should be noted that e-cigarettes are currently not covered by the Directive. 

The Commission is taking a cautious approach and underlined the need for further evidence to be made available before a decision to include e-cigarettes in the scope of Directive 2011/64/EU can be made. E-cigarettes may not fall under the Directive, but this does not mean they are not regulated on an EU level, as they are regulated by Directive 2014/40/EU (the Tobacco Products Directive), and according to the report the relationship between the Tobacco Products Directive and Directive 2011/64/EU has not been made clear. 

A similar approach is taken in relation to heat-not-burn tobacco products, which are a novel type of tobacco product, not yet available in all Member States. The Commission argues there is not enough data to decide on potential harmonisation of the tax regime. 

Is this decision to be interpreted as the Commission going easy on novel tobacco products, choosing not to regulate them so strictly? It is still too soon to tell, as this story is far from over. The Directive will undergo a REFIT evaluation in 2019, where the topic of regulating e-cigarettes will be once again on the table. So it seems like the Commission does not want to make big changes in light of the REFIT evaluation and would rather wait for its outcome.

No bargains for Scottish whisky

Following on the recent line of posts on consumer health, it may be interesting for our readers to hear about the UK Supreme Court deciding this week that Scotland is allowed to set minimum prices per unit of alcohol sold (Supreme Court back Scottish minimum alcohol pricing). The legislation to this effect has been adopted a few years ago but has not entered into force, due to its legality being questioned by the whisky association (unsurprisingly). It was claimed that the rule was against EU freedom of movement of goods, creating unjustified and disproportionate barriers. The UK Supreme Court disagreed. The law is perceived as setting valid aims to discourage Scots from buying strong alcohol cheaply by asking a minimum price of 50p per unit of alcohol sold (regardless the country of origin of the alcohol, which means the measure is non-discriminatory). The price of lower in percentages alcohol, such as beer, would not be influenced by the reform (to reassure some of our readers). No reference was made to the Court of Justice to try to establish whether despite the non-discriminatory character the measure could still be perceived as hindering market access. It will be interesting to examine the results of such changes in pricing - how they impact consumer behaviour - and whether they could indeed be perceived as an efficient measure to improve consumer health.

Who needs a diet when there are taxes?

Recently we mentioned that the fight against obesity is moving to the top of the political agenda of the Member States. Aside new rules on labelling (How to get consumers to eat healthier?), which aim to allow consumers to make more conscious choices (hopefully healthier), there are more political debates as well as attempts to regulate the food market. UK medical circles increasingly argue for food taxation to be introduced (The fight against obesity: To tax or not to tax?). Ireland introduced a 'soda tax' following on the French example. However, other news (The 'nanny state' in consumer health needs to go) report on the failed experiment with a 'fat tax' in Denmark. This tax was repealed within 15 months from its introduction due to no reported beneficial impact on consumer health, but rather noticed trend of lower income consumers switching to cheaper and potentially even more rich in fat food. It is not easy - trying to get consumers to make all the 'right' choices - but it is encouraging to see that various policymakers are trying various methods to improve consumer wellbeing. From the research perspective - the comparison of the different policies adopted by various Member States may provide the winner, i.e. the most effective policy measure in this area.

Follow-up reading on W and Others in Nature

Further comments and considerations on the W and Others judgment may be found in the just published article "Vaccine ruling from Europe's highest court isn't as crazy as scientists think", authored by Laura Castells & Declan Butler for Nature. Following our blog post ("If scientists quarrel..."), we have provided comments to the authors, and some of them have been included in the article.

If scientists quarrel whether a vaccine caused a disease, it's left to the courts - CJEU in W and Others (C-621/15)

On June 21 the CJEU decided in the case of product liability related to a potentially defective vaccine - W and Others (C-621/15). Mr W was vaccinated against hepatitis B in the years 1998-1999 with a vaccine produced by Sanofi Pasteur. He was diagnosed with MS in November 2000, which first led to his disability from work, then needing round-the-clock care, and finally his death in October 2011. Together with his three family members he raised a claim against Sanofi Pasteur in 2006, arguing that his illness resulted from the administration of the vaccination.

Vaccinations have long been a controversial topic as the available medical research has not been able to either conclusively prove their detrimental effects to human health or to conclusively disprove them. This is at least confirmed in this case with respect to the lack of medical research establishing a relationship or lack thereof between the hepatitis B vaccination and the multiple sclerosis disease (par. 30). Article 4 of the Product Liability Directive requires the consumer to be able to prove not only the damage, and its cause but also the causal link between the two. What evidence was submitted in this case? Mr W and Others claimed that the short period between the vaccination and the appearance of first symptoms of MS should be considered, as well as the fact that there was no trace of family history of this disease. These facts "are such as to give rise to serious, specific and consistent presumptions as to the existence of a defect in the vaccine and as to there being a causal link between the injection of the vaccine and the occurrence of the multiple sclerosis." (par. 11) 

In French law, which was applicable to this case, the Cour de cassation stated previously that with regard to the defective vaccines and the liability of pharmaceutical companies for their production, the causal link could be derived from "serious, specific and consistent presumptions". So even if the medical research does not confirm a relationship between the vaccination and the occurrence of the disease, the court could establish the defect in the vaccine and the causal link between it and the damage based on, indeed, the lack of medical family history with this disease and the short time that passed between the vaccination and the occurrence of the disease (par. 13). I think it bears repeating: despite the lack of medical research evidencing this relationship.

Considering that the PLD does not specify what should be considered a sufficient proof of the causal link between the defect and the damage that the consumer needs to establish, it is left to the Member States to decide what evidence is admissible, the level of proof required and the rules for national courts how to evaluate it (par. 25). The established procedural rules should comply with the principle of effectiveness, of course (par. 26), which cannot lead, e.g., to the shift in the burden of proof pursuant to Article 4 PLD or undermine the effectiveness of the strict liability system adopted by this Directive (par. 27). The CJEU confirms that the French procedural rules do not lead to such a shift in the burden of proof but rather just alleviate it by making it easier for consumers to establish the causal link - without having to "produce, in all circumstances, certain and irrefutable evidence of a defect in the product and of a causal link between the defect and the damage suffered" (par. 28). The national court may then conclude that "such a defect has been proven to exist, on the basis of a set of evidence the seriousness, specificity and consistency of which allows it to consider, with a sufficiently high degree of probability, that such a conclusion corresponds to the reality of the situation." (par. 28). Furthermore, the possibility to ban the use of circumstantial methods in proving the causal link would be contrary to the PLD, esp. in situations like here: where the medical research is inconclusive (par. 30), as it would disallow consumers' successful claims of product liability due to excessively difficult burden of proof (par. 31). 

Generally then, the CJEU accepts a possibility that national law establishes producers' liability only on the basis of circumstantial evidence. However, it continues to observe that procedural rules may not harm producers by accepting "unjustified presumptions" (par. 34). When would this occur? For example, if national courts are overly rigorous in their application of these evidentiary rules and start accepting irrelevant or insufficient evidence, as a consequence (par. 35). The CJEU goes even further, if national court would draw an automatic presumption on the existence of the defect and of causal link, just because "one or more types of factual evidence were presented together" - this would lead to the disregard of the burden of proof as "the producer could then find itself, even before the courts ruling on the merits of the case had the opportunity to familiarise themselves with the producer’s evidence and arguments, in the position of having to rebut that presumption in order to defend itself successfully against the claim" (par. 36). Therefore, the producer's right to defense needs to be respected.

Concluding, the national court may use circumstantial evidence - if it is sufficiently serious, specific and consistent - to conclude that despite the producer's arguments and evidence presented by him "a defect in the product appears to be the most plausible explanation for the occurrence of the damage, with the result that the defect and the causal link may reasonably be considered to be established." (par. 37).

The CJEU actually addresses the facts of this particular case in the par. 41-42 of the judgment. It seems to advise the national court that in the given case it could be likely to establish a defect and causal link, considering the lack of medical family history of the disease, temporal proximity between the vaccination and the occurrence of the disease, but also the existence of a significant number of reported cases of the disease following such vaccines being administered. This could make it the most plausible explanation for the national court that the administration of the vaccine led to the disease and that the vaccine, therefore, did not offer the safety it should have. But such conclusions have to be drawn "in a fully enlightened manner in each specific case" - the producer's rebuttal being the most important evidence to the contrary.

I think this judgment may lead to quite some disputes. On the one hand, supporters of medical research may feel that the lack of conclusive evidence of the harmful effects of the vaccination should not lead to producers' liability. On the other hand, considering the difficulties consumers would have in acquiring conclusive proof based on medical research, that's contrary, of the harmful effects of the vaccine, the alleviation of the burden of proof might seem reasonable to others.

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.

AG opinion in Vanderborght (C-339/15): Belgian prohibition of all ads for dental care is EU law-proof.

Last Thursday, AG Bot has delivered his opinion in case C-339/15, a Belgian case concerning the prohibition, in that country, of any form of advertisement relating to dental care.

The national court which has submitted the preliminary ruling request doubts the compatibility of these- quite old- Belgian provisions with primary and secondary EU law- with headings ranging from internal market freedoms to the Unfair Commercial Practices Directive, to the so-called "E-commerce" Directive.

An interesting question that the Court may need to address is whether a similar prohibition can fall under the exception carved out into the UCPD for "health and safety aspects of products", the regulation of which is left unaffected by the directive.

According to AG Bot, the provision does fall under that exception. Looking at the Directive's recitals, the AG observed that under recital 9 makes clear that Member States would "be able to retain or introduce restrictions and prohibitions of commercial practices on grounds of the protection of the health of the consumers". In his view, this observation is reinforced by the fact that according to the commission's guielines on the implementation of the UCPD, all measures adopted by the Member States tgat aim at protecting interests which are not of an economic nature fall outside the scope of the Directive (para 37).  For this reason, the Directive does not apply. 

The e-commerce directive is in principle applicable (para 49), Under article 3 of that Directive, in principle information society services (such as, in this case, online advertising by a professional) are subject to the law of the MS in which the service provider is established. In the case at hand, the professional concerned was located in Belgium- thus the directive sets no obstacles to the applicability of Belgian law.  

According to the Directive's article 8, professionals must be able to give clients information on their activities through the internet; however, in the case of regulated professions, they can only do so provided they comply with the (national) deontological rules of the profession. According to AG Bot, legislation such as that as issue in the main proceesings must "be interpreted as clearly playing a role in ensuring compliance with the rules of deontology regulating the profession of dentist" (para 67). Thus, the AG thinks the restrictions set out by Belgian law may be justified by reasons associated with the compliance with the deontological rules of the profession of dentist. 

In particular, AG Bot explains in the following section assessing the rules' compatibility with treaty law, the protection of public health is such that even quite far-reaching measures, su as the ones discussed in the case, can satisfy the requirement of proportionality (see para 100 and ff). This is both due to the crucial interest that healthcare has for citizens and to the pervasiveness of information asymmetries in this field, which make trust an indespensable element. 

Advertisement of healthcare services and products, according to the AG, is capable of undermining consumer trust. The need to preserve trust is such that negative integration is not desirable and the Union has at several points felt the need to legislate in order to facilitate mobility of providers (para 114).

In any case, the prohibition cannot be unlimited since providers must be able to let the public know of their existence.  This condition, according to the AG, is satisfied as long as a sufficiently detailed publicly available directory exists, "free from enticements or incentives", where names, contact details and areas of expertise are indicated (para 118).

The AG, it seems, considers the disruptive potential of advertisement on patient's trust a given, and bases large parts of his analysis on this fact- it remains to see whether the Court will agree. 

Veto to caffeine health claims on energy drinks?

When you are working or studying hard, drink too much coffee on a daily basis, you might be tempted to reach for a caffeine-filled soft drink to give yourself an energy boost. These drinks often claim to help with energy levels, concentration, inspiration, adding wings etc. Since the main consumers of these drinks are teenagers and young adults (68% of adolescents drink them regularly) and these drinks often contain a lot of sugar (up to 27g of sugar, 80g of caffeine in a 250ml can), MEPs expressed a concern as to such 'health claims' being placed on the labels. (Health Committee MEPs ask Parliament to veto energy drink 'alertness' claims). In a resolution adopted yesterday the MEPs asked the Parliament to veto the Commission's proposal to add health claims on caffeine to the approved health claims list. While the Commission excludes from the proposal products for children and teens, energy drinks would not qualify as such.The MEPs are keen to correct this omission.

Directive on tobacco products (sort of) in force

Today, the implementation delay given to Member States to integrate the Tobacco Products Directive (2014/40/EU) has elapsed. Many Member States are actually not finished with the implementation process, but since several of the obligations imposed by the Directive on producers are quite straightforward, it is to be expected that these obligations will be treated as binding form now on.

What are the main points of the Directive? What consumers will notice more easily is that:
1) graphic and textual info will have to be very prominently displayed, including some simplified content information (ie the standard sentence "Tobacco smoke contains over 70 substances known to cause cancer" will replace substance-by-substance info);
2) 10-cigarette packages will disappear, and so all sort of flavoured cigarettes;
3) the packaging and labeling of e-cigarettes will change, to sport a notice that non-smokers should not start using them.

Want to know more? Check the condensed info sheet put together by the Commission here and the whole information package concerning the directive here. 

Sugar is bad for you, CJEU says

Sugar boosts are a common tool for intensive sports. They come in different forms, ranging from drinks to tablets. How can they be advertised, though?

The Commission takes a hard stance on this point, especially when it comes to health claims. In 2011, a German company requested the Commission's authorization to use the following claims:

 ‘glucose is metabolised within the body’s normal energy metabolism’, ‘glucose contributes to normal energyyielding metabolism’, ‘glucose supports physical activity’, ‘glucose contributes to normal energyyielding metabolism during exercise’ and ‘glucose contributes to normal muscle function during exercise'

 The European Food Safety agency, when asked for advise, answered that these claims were factually accurate, yet the Commission decided not to authorize them as they might still be confusing for consumers: they encourage the consumption of sugar, whereas health authorities around the world suggest that on average we consume too much of it already. 

The case ended up before the General Court, which decided the cases earlier this month (here the press release, while the decision is available in French here) Dextro claimed that the average consumer, who is reasonably circumspect and informed, knows that she should not consume too much sugar (para 52).

According to the Commission and the General Court, even assuming that the average consumer would know that she should avoid excessive sugar consumption, health claims such as the ones above might still lead her to consume more sugar (para 60)- considerably more since sugar boosts are only effective when they have a high sugar content. 

This case is remarkable in that it uses the notion of the average consumer, usually considered to point towards a relatively low level of consumer protection, to uphold an arguably very high level of scrutiny for health claims. The war on sugar has just begun!

PS incidentally, the Guardian just published a really interesting long read article on sugar, science and nutritional advices.

Press digest

Press digest

Sharing economy

Euractive reports (see here) that the European Commission delayed the publication of its guidelines on sharing economy from March until mid-2016. The guidelines are expected to clarify the legal position of the online platforms and the scope of application of the Services Directive, the E-Commerce Directive and consumer acquis. The legal position of online platforms is also currently being evaluated by the CJEU in two cases concerning Uber (see C-434/15 and C-526/15).

Social Media

Facebook is under investigation in Germany for the potential abuse of its dominant position in the social networking area that would consist of gathering excessive amount of data from its users, without giving them a choice to use the service otherwise (see here and here). The standard terms and conditions of Facebook could thus also be challenged, in this respect, as unfair.

Also Tinder's practices have been questioned by consumer organizations, in countries such as Norway, Slovenia, the Netherlands. Tinder's T&Cs reserve the right for the company to repurpose user-generated data even after the account is deactivated (permanent deletion is impossible!) by the user. This data could include even personal photos. Other terms in the Tinder's T&Cs would also fail the unfairness test under the Unfair Contract Terms Directive (e.g. setting the US Texas law as the applicable law). (see here)

Healthy food

At a conference in Amsterdam, most MS and some stakeholders agreed to work together to further reduce salt, saturated fat and sugar content in food products (see here).

Within the EU Parliament MEPs have endorsed in the plenary new fruit and milk scheme. The existing milk scheme for schools will be enriched by new rules on fruit and vegetable. The aim is to increase school children access to fresh products, as well as to improve their education on healthy eating (see here).

No to national restrictions on EU-approved GMOs

Last week, on October 28, the European Parliament voted against a new draft law that would allow Member States to restrict or prohibit the sale and use of EU-approved GMO food or feed on its territory. The background of this decision is that once a GMO product has been approved by the EU, then it should be freely accessible and freely marketable across the EU. If Member States would get to decide on additional restrictions in trade in their own countries, this would not only hinder cross-border trade in the EU in these products, but also complicate and, in practice, reinstate border controls. Interestingly, the European Commission may not withdraw the proposal but instead direct it to the EU ministers' review next (Parliament rejects national GMO bans proposal).

Misleading presentation of lenses as cosmetic products - CJEU in Colena (C-321/14)

3 September 2015: CJEU judgment in Colena (C-321/14)

Directive 1223/2009 on cosmetic products defines as such products that are either substances or mixtures of substances that are intended to come in contact with a part of the human body with a purpose to exclusive or mainly clean it, perfume it, change its appearance, protect it, keep it in good condition or correct body odors (Art. 2 par. 1). A German company promoted lenses that were to change the appearance of their users' eyes, without having any corrective function as to the visual deficiencies. On the outer packaging of these lenses an information was placed "cosmetic eye accessory, subject to the EU Cosmetics Directive". The CJEU decides, however, that presentation of a product as a cosmetic product does not influence its assessment as such. The above-described lenses do not fulfil any of the above-mentioned criteria from the definition of a cosmetic product (e.g. they are placed on the eye's cornea, which is not referred to on the exhaustive list of body parts with which cosmetic products come in contact with) and as such are excluded from having to comply with the rules of the Directive. However, national authorities may consider a practice of marketing a product as a cosmetic product even if it is not such, as a misleading commercial practice and proceed accordingly. (Par. 26)

Salt water as cure for anything - AG Jääsikinen in Neptune Distribution (C-157/14)

9 July 2015: opinion AG Jääsikinen in Neptune Distribution (C-157/14)

Marketing of natural mineral water is specially regulated by the Directive 2009/54 in the EU. It determines the maximum level of sodium that natural mineral waters could contain in order to be advertised as suitable for a low-sodium diet. Due to the special character of these provisions, the question arose whether they take precedence over or rather are complimentary to the Regulation No 1924/2006 on nutrition and health claims. Specifically, while in the Annex of the Regulation the claim on "low sodium/ salt" seems to exclude from its application natural mineral waters, the same exclusion has not been added to the claim on "very low sodium/ salt". The levels of "low sodium/ salt" are the same in both these measures, but the Directive is silent on the "very low sodium/ salt" standard. 

AG Jääsikinen confirms that also producers of natural mineral water while marketing it must follow the guidelines as to what could be labelled as a "very low sodium/ salt" product from the Regulation. Additionally, in the answer to one of the posed question, the AG states that in the calculation of the sodium level all sorts of sodium should be considered (and not only table salt - sodium chloride - as Neptune Distribution has argued for). (Par. 29-33) If this opinion is upheld by the CJEU this will mean that natural mineral water could not be labelled as "very low sodium/ salt" if it contained very little table salt, but the overall sodium level would be high to the e.g. appearance of some baking soda in it (apparently present in certain natural mineral waters). This assessment doesn't surprise in light of the overall aim of protecting consumer health. (Par. 47-48)

Less antibiotics, more milk and fruits

The Health Committee voted yesterday on a resolution that aims at improving EU healthcare. Among other measures, the MEPs hope to encourage doctors to be more restrictive and responsible in prescribing antibiotics (also to animals) as well as to prohibit their sale without prescription; to motivate pharma companies to search for new antimicrobial agents (with resistance reaching 25% for commonly used antibiotics in several MS); to monitor more strictly potential conflict of interests between producers and prescribers of drugs. This resolution is the result of a report showing that 8-12% of patients admitted to EU hospitals experience adverse effects while receiving healthcare (e.g. infections) while ca 50% of these occurrences could have been avoided. (Health MEPs propose blueprint for safer healthcare)

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Also yesterday, the Agriculture Committee amended draft rules on schemes to provide fruit, vegetables and milk in schools encouraging MS to better and at a larger scale promote healthy eating and consumption of local food amongst children. Two, so far separate, schemes will be merged - on providing milk and fruit to schoolchildren (which should reduce the administrative burden for upholding them). The Committee introduces a proposal to enable EU funding for local milk products such as yoghurt, cheese and curd (as long as they do not contain added flavouring, fruits, nuts or cocoa); to require MS to spend 10-20% of the EU funding on additional educational and promotional activities related to healthy eating habits (visits to local farms, distribution of local specialties etc.); to increase the EU funding in this area and to better divide it amongst the MS. (Milk and fruit in schools: agriculture MEPs promote healthy eating)

0,5l of beer or a chocolate bar?

The Regulation (EU) No 1169/2011 on the provision of food information to consumers, which entered into force in December 2014, exempts producers of alcoholic beverages (containing more than 1,2% by volume of alcohol) from publishing a list of ingredients or a mandatory nutrition declaration on their products (Article 16 Par 4). The Commission was supposed to produce a report on the need to include this information on alcohol labels in December 2014, but this report has so far been delayed (Delayed Commission report on alcohol labelling frustrates beer industry) (partially due to problems with defining "alcopop" drinks, which mix alcohol with soda or juice). In the meantime, according to BEUC, few consumers are e.g. aware that a half litre of beer (5% alcohol) contains approx. 220 calories - the same can be found in a chocolate bar (BEUC demands bolder EU action on alcohol labelling), therefore, alcoholic drinks should not be treated any differently from other food and drink products. 

The Brewers of Europe representing the European beer industry (over 5000 breweries across Europe) took upon themselves a voluntary commitment to present this information to consumers even without the mandatory provisions to this extent (Commission applauds beer industry's move on labelling). One of the issues that may prove problematic in sufficiently informing consumers about alcohol's nutritional values is that the serving size is usually bigger than 100ml that serve as a reference points for most consumers when comparing calories etc. in food and drinks. It could, therefore, be valuable to add also information on a standard serving size of a given product and its nutritional value. Also Diageo, producer of such well-known alcohol brands like Johnnie Walker and Smirnoff, has also last month committed to voluntarily provide nutritional information (per typical serving) for all of its products (Diageo's Nutrition Labels Give Industry Something to Digest). 

How to improve consumer food choices?

This month BEUC published its position paper on consumer nutrition: "Informed food choices for healthier consumers". Generally, the end responsibility to eat healthy rests on the consumer, however, it should not surprise anyone that consumer's choices with regard to nutrition are driven by food marketing. The complex and non-transparent food environment hinders healthy consumer choices with regard to food. Additionally, consumption pattern has changed and we tend to eat more processed food, of little nutritional value, but highly calorific, filled with added sugar, salt and saturated fat and lacking on vegetables and fruit. This may be the result of the fact that unhealthy food is often cheaper and easier accessible than healthy options. That is why the European Consumer Organisation calls for the introduction of better and more efficient European food policy with regard to consumer nutrition, believing that if the food environment and our behavioral patterns drive us to unhealthy food choices at this moment, both these factors could be influenced to re-shape our nutrition choices (p. 5).

First, the European legislator could introduce labelling on the front of the package of any food product (p. 7 - "as it is a time-saver"). This would be more likely to get consumer attention and if it came together with simplifying this information (e.g. by color-coding levels of sugar, salt, fat), consumers could be one step closer to making good nutritional decisions (p. 8-9 on raising awareness of consumers about the nutritional profiles of food). 

"More specifically a quiz launched by the Slovenian Consumer Organisation (ZPS) found that without traffic lights, only 35% of people correctly answer the questions on sugar, salt, fat and saturated fat contents. In contrast, when traffic lights were used 85% of respondents gave the right answer. Our Dutch member, Consumentenbond, found roughly the same results: without traffic lights 43% gave the right answer, while with traffic lights 90% of respondents correctly identified products high in salt, added sugar and unhealthy fat."

"Which? research showed people can eat over three times the fat and saturated fat as well as double the amount of salt depending on which chicken sandwich brand they choose."

"It is important to highlight that as colours are attributed to nutrients and not the whole product, traffic lights do not discriminate against certain products in particular but merely inform consumers as to the amounts of key nutrients such as sugar, salt and saturated fat. For instance, under a traffic lights scheme a sorbet would get a red for sugar whilst a vanilla ice cream would get an amber. At the same time the ice cream would get a red for fat while the sorbet would get a green. While seeing that on average sorbets contain less calories than ice cream people would also understand that sorbet remains a product high in sugar and that they should take into account this information to balance their whole diet." (p. 10)

However, the information on these labels should be truthfully relayed and not made more attractive than it should be. That is to say, food producers should not be allowed to claim health benefits of their products only on the basis of adding some desired nutrients to the food (vitamins), when the rest of its ingredients would remain harmful. (p. 11-12)

"In Austria our member Konsument found that health claims for calcium and multivitamins were appearing on the FOP of biscuits filled with sugar, salt and fat."

Therefore, BEUC is calling for a speedy introduction of minimum healthy nutrient profiles by the European Commission.

Another issue remains that current consumers lifestyle often prevents them from taking time to prepare a healthy meal at home. Getting food outside consumer's home has become a common occurrence. To assist consumers in improving their nutrition under such circumstances, BEUC calls for the improvement of food labelling eaten outside consumer's home. For example, restaurant menus could list energy, salt, sugar, fat intake by every dish. (p. 13-14)

"In the USA, where menu labelling is mandatory for chain restaurants (defined as those with 20 outlets nationally), many fast food chains have developed new food items to meet a specific calorific threshold and some committed to change recipes to add more fruits and vegetables to their menu options. A study performed in the US found that in order to affect customers’ purchasing behaviours, nutritional information must be visibly displayed e.g. on a menu board so that it can be considered by the consumer before placing an order, not afterwards. The information should be readable, meaning the font sizes should be similar to the one used for the name of the product, it should be as clear and easy to read as the price of the item."

The European legislator could also adjust current standards for fat, salt and sugar levels in products, as well as to motivate producers to lower these levels further (especially since the food market shows that currently similar products exist with different levels of these substances). 

"In the EU the average salt intake is almost twice the maximum level set by scientific bodies including the WHO." (p. 16)

"In Switzerland, the consumer organisation FRC found a tomato sauce can contain up to eleven times the amount of salt of another tomato sauce." (p. 17)

Additionally, food producers should be incentivized to increase the levels of fruits, vegetables, whole grains and healthy proteins in their food. (p. 19)

Moreover, the food marketing sector should be further controlled and additional measures could be taken to prevent marketing of unhealthy food products to children. 

"For instance in theory companies agreed to remove toys from kids menus, yet this practice is still widespread. More importantly each company can set its own rules, especially when it comes to determining which food can and cannot be advertised to children. BEUC members found that if food companies were to put children’s meals together 80% of the plate would be filled with processed food high in sugar, salt and unhealthy fat (fast food and snacks). By comparison, fruit and vegetables would account for 0.2% of the total plate." (p. 22)

A child could be defined as up to age 16 (currently - 12 years old). (p. 24) School programs should promote healthy nutrition. And supermarkets could start nudging their clients to healthy choices through in-store promotions and healthy store design. Obviously, this would require that the choice architecture would be taken over by the legislators and not left in the hands of the sector anymore.

"Another urging move would be to remove sweets and sugary snacks at check out as most supermarkets check out are filled in junks. Research from the Swiss Consumer Organization FRC found that all supermarkets visited sold unhealthy products such as candies, biscuits and in 89% of cases it was physically accessible to kids." (p. 25)