CJEU strictly construes legal requirement for inclusion of non-organic foodstuffs in organic products

06 March 2015

The Court of Justice has held that Article 27(1)(f) of Regulation No. 889/2008 must be interpreted as meaning that "legally required" substances which can be used in the processing of organic food, did not encompass food supplements, bearing a nutrition or health claim or foodstuffs used for a particular nutritional use, even though that in order to comply with the provisions governing the incorporation of substances into foodstuffs, such products must contain a determined quantity of the substance in question.

Facts and background of the case

In December 2011, the Bavarian authorities ordered Herbaria Kräuterparadies (Herbaria) manufacturer of Blutquick – a fruit juice mixture containing herbal extracts - to remove the reference to organic farming in the labelling. Blutquick's ingredients were primarily grown using organic production methods within the meaning of Article 19(2)(a) of the Regulation on organic production and labelling (Regulation No. 834/2007) but also contained also non-organic vitamins and ferrous gluconate (iron).

The Bavarian authorities argued that such minerals and vitamins could be added in "organic" products only to the extent that their use was legally required in such foodstuffs. There was no such legal requirement for Blutquick as that it was not covered by the national dietetic foods regulation (the Diätverordnung). The fact that detailed requirements had been complied with in order to obtain a nutrition and health claim in conformity with the Regulation on nutrition and health claims made on food (Regulation No. 1924/2006),  did not mean that the use of vitamins and minerals in Blutquick was legally required in the manufacture of foodstuffs.

Even if Blutquick was authorized under Regulation No. 1924/2006, it could not be labelled as organic production under Article 23 of Regulation 834/2007, because Regulation No. 1924/2006 did not require foodstuffs and food additives to contain vitamins or to be enriched with iron.

Herbaria challenged that decision before the Bayerisches Verwaltungsgericht München (Bavarian Administrative Court in Munich), arguing that Article 27(1)(f) of Regulation No. 889/2008 was intended to permit the addition of minerals and vitamins, if and in so far as other EU or national provisions required a specific vitamin or mineral content where a foodstuff could not fulfil its stated purpose without such content. Regulation No. 1924/2006 required minerals and vitamins to be added to foodstuffs labelled as having a specific nutritional function. Herbaria argued that the stated purpose of a food supplement was the basis for the legal obligation to achieve the corresponding minimum values. If those values could be achieved only by addition of substances, the addition was legally required.

Reference for a preliminary ruling and ruling

The Bavarian Court referred three questions to the CJEU, which were reformulated by Advocate General Sharpston as follows:

Do the words 'legally required in the foodstuffs in which they are incorporated' in Article 27(1)(f) of Regulation No 889/2008 refer:

a) only to a direct legal requirement for one or more of the substances listed to be present in a foodstuff if it is to be marketed at all, regardless of any statements as to its qualities or intended use, or
    b) also to a situation in which the foodstuff is marketed as a food supplement, with a nutrition or health claim or for a particular nutritional use but may not be so marketed unless it contains a specified amount of one or more of those substances.

    On the basis of these reformulated questions, the CJEU held that the wording of Article 27(1)(f) of Regulation No. 889/2008 makes it clear that minerals and vitamins may be used in the processing of organic food, only if legal rules require their use in order for it to be marketed (emphasis added).  In this regard, the Court specified that it is irrelevant whether the use of those substances is required under national or EU law.

    The Court emphasized that it is for economic operators to determine the composition of their products and to decide how they want to portray them for marketing purposes. If an economic operator wishes to market its product as a food supplement, with nutrition and health claims in conformity with Regulation No. 1924/2006, or any other specific legislation relating to a specific use, they must fulfil the relevant obligations laid down therein.

    Compliance with those requirements remains a business choice for specific marketing purposes. Therefore, as marketing a product bearing a nutritional claim is optional, a product meeting such requirements did not meet the legal requirement within the meaning of Article 27(1) (f) of Regulation No. 889/2008.

    [1] Case - 137/13.