Easily digestible wine? Recent development in European Case Law on Health Claims

By Isabelle Dupuis, Nicolas Carbonnelle


In a judgment of 6 September 2012, the Court of Justice of the European Union (CJEU) handed down its judgment on a request for a preliminary ruling from the Bundesverwaltungsgericht (Germany) in Case C-544/10, Deutsches Weintor eG v Land Rheinland-Pfalz regarding the interpretation of the term "health claims" for the purposes of Regulation n° 1924/2006 of 20 December 2006 on nutrition and health claims made on foods (the "Regulation").  Article 2.2.5 of that Regulation defines "health claims" as any claim that states, suggests or implies that a relationship exists between a food (or one of its constituents) and health.  The CJEU's judgment further clarifies the appropriate application of this definition in the context of Article 4.3 of that Regulation, which provides that "beverages containing more than 1,2 % by volume of alcohol shall not bear health claims". 

Summary of the facts

Deutsches Weintor eG, a German wine grower's cooperative, markets wines using the description "Edition Mild" (mild edition), accompanied by a reference to "gentle acidity". The label on the neck of the bottles states "Edition Mild bekömmlich" (mild edition, easily digestible). The price catalogue also described the wines as "Edition Mild – sanfte Säure/bekömmlich" (mild edition – gentle acidity/easily digestible).

However, he Land Rheinland-Pfalz, the authority responsible for supervising the marketing of alcoholic beverages in the Rhineland-Palatinate region, objected to the use of the description "easily digestible" on the ground that it would constitute a health claim within the meaning of Article 4.3.1 of Regulation n° 1924/2006.

The cooperative argued that the description "easily digestible" did not refer to health but only to general well-being.  It also claimed that health claims should be given a narrow construction, limited to the long-term effects produced by the foodstuff in question.

The case went up to the German Federal Administrative Court (Bundesverwaltungsgericht), which - uncertain as to the appropriate interpretation of the term "health claims, referred three questions to the Court of Justice for a preliminary ruling.

Prejudicial questions

With its first two questions, the German Federal Administrative Court asked whether a description, such as "easily digestible", accompanied by a reference to reduced levels of substances that customers typically perceive as harmful can be qualified as "health claim" within the meaning of Article 4.3 of Regulation n° 1924/2006.

• The Administrative Court asked, in particular whether, in order to be considered as a health claim, the reference to health in a claim requires there to be a beneficial nutritional or physiological effect aimed at a sustained improvement of physical condition, or if claims of a temporary effect, limited in particular to the time taken by the intake and digestion of the food, is sufficient (Question 1)[1].

• If the answer to the first question is that an assertion of a temporary beneficial effect is sufficient, the German Court further asked whether a claim that merely asserts that an effect that is generally derived from/associated with a certain food and frequently perceived as being adverse is limited, is admissible notably in view of Article 5.1.a of Regulation n° 1924/2006[2]  (Question 2).

Finally, the German Federal Administrative Court, asked whether imposing a blanket ban on wine producers or distributors from using the kinds of claims at issue - even if such claims are inherently correct - would be compatible with Article 6.1 of the TEU[3], and, in particular, with the freedom to choose an occupation and the freedom to conduct a business (Question 3).

[1] In the case at stake, the claim "easily digestible" suggests that, in view of its reduced acidity level, the wine is particularly easy to digest. The wine is therefore said to produce a beneficial nutritional or physiological effect. On the other hand, digestion can be regarded as a physiological process which, by definition, is limited in time, giving rise to only temporary or fleeting effects. The question is whether such assertion of such temporary effect is sufficient to be considered as a reference to health.

Judgment of the Court

On Questions 1 and 2, the CJEU ruled that the words "health claim" in article 4.3 of Regulation n° 1924/2006 indeed cover descriptions such as "easily digestible" that are accompanied by a reference to a reduced content of substances frequently perceived by consumers as being harmful.

According to the CJEU, Article 2.2.5 of Regulation n° 1924/2006 does not stipulate either whether the relationship between food and health must be direct or indirect, or the intensity or duration of this relationship. Accordingly, the term "relationship" must be understood in a broad sense and the concept of "health claim" should be understood as referring not only to temporary and fleeting effects but also to the cumulative effects on consumers' physical health of repeated and long-term consumption of a certain food.

The CJEU further held that although digestion may be regarded as a physiological process that is limited in time, the "easily digestible" claim as worded might suggest a sustained beneficial physiological effect consisting in the preservation of a healthy digestive system[4]. For this reason, the CJEU concluded that claims of "easily digestible" wine that imply a relationship between food and consumer health and are prohibited under Article 4.3 of Regulation n° 1924/2006.

On Question 3, the CJEU ruled that the blanket prohibition under Article 4.3 of Regulation n° 1924/2006 on wine producers or distributors using "easy digest" health claims, even if that claim is inherently correct, is compatible with Article 6.1 TEU.  According to the Court, such a ban would not substantially restrict on the freedom to choose an occupation and/or to conduct a business, but would merely limit the way in which producers and distributors market and promote the products concerned. The Court further stressed that these freedoms are not absolute and must be balanced with the requirements of Article 35 of the Charter of Fundamental Rights of the European Union (CFREU), which requires the definition and implementation of all EU policies and activities to ensure a high level of human health protection.

In this respect, the Court also recalled that - due to the risks of addiction and abuse, as well as the harmful effects known to be linked to alcohol consumption - alcoholic beverages represent a special category of foods that is subject to particularly strict regulation, including on advertising.  In that context, the Court ruled that the total prohibition of any ("digestion") health claims for wines/alcoholic beverages may be regarded as necessary in order to comply with Article 35 CFREU.

For the same reasons, the Court also held that it is essential that all claims in relation to alcoholic beverages are entirely unambiguous.  The Court observed in casu that, even if the claim at issue could be regarded as inherently correct (in that it indicates reduced acidity levels), it was nonetheless incomplete and misleading to the extent that it remained silent as to the inherent dangers of consuming alcoholic beverages.

[2] Article 5.1.a of Regulation n° 1924/2006 provides that the use of health claims is only permitted if the presence, absence or reduced content in a food of a nutrient or other substance in respect of which the claim is made has been shown to have a beneficial nutritional or physiological effect, as established by generally accepted scientific evidence.
[3]Article 6.1 TEU states that the European Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union, which is to have the same legal value as the Treaties.
[4] Unlike other wines, which are presumed to result for which repeated consumption is presumed to have sustained adverse effects on the digestive system and, consequently, on health.