The European Court of Justice (ECJ) has thrown out a challenge to the EU nutrition and health claims regulation (NHCR) but the German lawyers behind the action say the ruling was based on a technical issue and may appeal.
Moritz Hagenmeyer and Andreas Hahn, the two German professors of law and nutrition that were rebutted by the European Food Safety Authority (EFSA) along with the European Commission over a water-hydration health claim said the ruling contained a number of positives.
“This decision does not surprise us,” said professor Hagenmeyer of the ruling .
“It appears important to us that the court has not rejected our action for substantive, but rather for formal reasons. It is only the lack of an identifiable risk factor that has made our application invalid.”
The case had in part been built on the argument that the NHCR principle of reduction of disease risk factors did not stand up in the law.
“Our argument that such a factor was included in the application was rejected by the court. However, the court expressly states that its judgment does not impose an absolute ban of our claim.”
The action also argued that the NHCR was non-proportional and breached, “essential procedural requirements”.
Hagenmeyer took other positives from the ruling.
“With satisfaction we note that according to the court everyone can file an application for a disease risk reduction claim, not just food business operators,” he said, noting the court had upheld the right to challenge the regulation.
“And the court clearly states that none of the authorities involved, the German Office for Consumer Protection and Food Safety, EFSA and the EC, observed their statutory deadlines.”
He added: “…we will carefully examine whether the judgment merits an appeal.”
The professors in 2011 had submitted the claim that was clearly designed to test the limits and logic of the health claims regulation. It stated: “Regular consumption of significant amounts of water can reduce the risk of development of dehydration and of concomitant decrease of performance.”
EFSA’s Panel on Dietetic Products, Nutrition and Allergies (NDA) rejected the claim, saying these were, “measures of water depletion and thus are measures of the disease (dehydration).”
It therefore concluded: “…the proposed claim does not comply with the requirements for a disease risk reduction claim pursuant to [the NHCR].”
Subsequent EC and member state deliberations brought no revision, prompting the professors to ponder legal action.
The original NDA opinion can be found here.
At the time the bottled water industry said the opinion would not affect its marketing.
Others to have lodged actions against the NHCR include a joint action from the Natuur- & gezondheids Producten Nederland (NPN) and the UK Health Food Manufacturers’ Association (HFMA).
An NPN spokesperson told us: “We are still waiting for a decision of the Court, but we expect an outcome soon, before the summer.”
The NDA has however issued a positive article 13 opinion linking consumption of 2 litres of water per day and normal physical and cognitive functions and the maintainenance of thermal regulation.
That opinion can be found here.