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06/09/2012

ECJ ruling: Wine may not be promoted as being ‘easily digestible’

6 September 2012. The Court of Justice of the European Union has ruled that a description, indicating reduced acidity levels, constitutes a health claim which is prohibited in relation to alcoholic beverages.

EU law[1] prohibits all ‘health claims’[2] in the labelling and advertising of beverages containing more than 1.2% by volume of alcohol. The EU legislature has sought to protect the health of consumers, whose consumption habits may be directly influenced by such claims.

Deutsches Weintor, a wine-growers’ cooperative based in Germany, has been marketing some of its wines that use a certain grape variety as “easily digestible”. The label states, in particular: ‘It owes its mildness to the application of our special “LO3” protective process for the biological reduction of acidity’. In the labels on the necks of the bottles and the price catalogue the wine is described in the following terms: ‘mild edition – gentle acidity/easily digestible’.

The German Federal Administrative Court, before which the dispute was brought on final appeal, asked the European Court of Justice (ECJ) to clarify the scope of the health claims prohibition.

In its judgment[3], the ECJ answered that the prohibition covers the description ‘easily digestible’, accompanied by a reference to the reduced content of substances frequently perceived by consumers as being harmful.

The concept of a ‘health claim’ does not necessarily presuppose the suggestion of an improvement in health as a result of the consumption of the food in question. It is sufficient that the mere preservation of a good state of health, despite the potentially harmful consumption, is suggested. Furthermore, it is not only the temporary or fleeting effects of consumption in a specific instance that must be taken into account, but also the cumulative effects of the repeated and long-term consumption of the food on physical condition.

In the present case the description at issue, which suggests that the wine is readily absorbed and digested, implies that the digestive system will not suffer, or will suffer little as a result, and that the digestive system will remain relatively healthy and intact even after repeated consumption, given that the wine is characterised by reduced acidity. In this, the claim might suggest a sustained beneficial physiological effect consisting in the preservation of a healthy digestive system, contrary to other wines, which are presumed to result, after being consumed a number of times, in sustained adverse effects on the digestive system and, consequently, on health. Consequently, that description constitutes a prohibited health claim.

The Court noted in particular that all claims in relation to alcoholic beverages must be entirely unambiguous, so that consumers are in a position to regulate their consumption while taking into account all the ensuing dangers, and in so doing to protect their health effectively. Even if the claim at issue is correct, the fact remains that it is incomplete. It highlights a certain quality that facilitates digestion, but is silent as to the fact that, regardless of a sound digestion, the dangers inherent in the consumption of alcoholic beverages are not in any way removed, or even limited. On the contrary, by highlighting only the easy digestion of the wine concerned, the claim at issue is likely to encourage its consumption and, ultimately, to increase those dangers. Accordingly, the total prohibition of the use of such claims in the labelling and advertising of alcoholic beverages is necessary in order to protect consumers’ health.

[1] Regulation (EC) No 1924/2006 of the European Parliament and of the Council of 20 December 2006 on nutrition and health claims made on foods (OJ 2006 L 404, p. 9), as last amended by Commission Regulation (EU) No 116/2010 of 9 February 2010 (OJ 2010 L 37, p. 16).

[2] A ‘claim’ is defined as any message or representation which is not mandatory, which states, suggests or implies that a food has particular characteristics.

[3] Judgment in Case C-544/10 Deutsches Weintor eG v Land Rheinland-Pfalz.