Recently, the Bavarian Administrative Court in Munich (Bayerisches Verwaltungsgericht) requested a preliminary ruling from the CJEU concerning a product called ‘Blutquick’ - a fruit juice mixture which mainly contains organically farmed ingredients but also non-organic mineral and vitamin additives.  The question referred was whether such a drink could still be advertised and marketed as ‘organic’? Advocate General Sharpston has now delivered her opinion on this case.

‘Blutquick’ is marketed by its manufacturer Herbaria Kräuterparadies GmbH (“Herbaria”) as food supplement which promises to support the normal formation of red blood cells and haemoglobin, while at the same time bearing an ‘organic’ label.

In December 2011, the Bavarian authorities ordered Herbaria to remove the reference to organic production from its labelling of ‘Blutquick’.  This was based on the requirement that minerals and vitamins may only be added to organic products as far as their use was ‘legally required’ (Article 27(1)(f) of Regulation No 889/2008).  Herbaria argued that the provisions concerning health and nutrition claims (in particular Regulation No. 1924/2006) obliged it to add minerals and vitamins to ‘Blutquick’ in order to achieve the nutritional values required for the stated nutritional purpose, i.e., supporting the formation of red blood cells.

In the opinion of AG Sharpston, the provisions regarding labelling products as ‘organic’ have to be interpreted restrictively.  The exception of ‘legally required’ substances in Article 27(1)(f) of Regulation No. 889/2008 only applies if there is a direct legal requirement that those substances should be used in the processing of the food in question.

Although EU law provides certain requirements in order to market a product as ‘organic’ and other requirements in order to market a product with health claims, all these provisions only relate to marketing requirements, i.e., only concern the way of how the product might be designated.  However, there is no legal requirement that a product has to be marketed as organic and/or a food supplement with health claims.  This is only a choice of the manufacturer.  Thus, if Herbaria decides to label ‘Blutquick’ as organic and a food supplement with health claims, Herbaria has to comply with all relevant legal provisions.

In our opinion there is a good chance that the CJEU will follow the AG’s line of reasoning. As a result, the food producers will have to carefully decide in which way their products shall be marketed taking care that all legal requirements are met.

This case also touches on the issue of a possible reverse discrimination as Herbaria claims that identical products from US origin may be labelled as organic.  This interesting issue and major legal question (especially  with regard to the Transatlantic Trade and Investment Partnership, currently in negotiation) will, however, probably not be decided because it was not included in the questions of the Bavarian Administrative Court.