Lawyer: EU health claims legal challenge won’t change much

13-Mar-2012 - Last updated on 13-Mar-2012 at 16:32 GMT

The European Court of Justice where the first challenge to the NHCR will be heard

Successful or otherwise, the European Union healthy foods and supplements space is unlikely to be much altered by a just-issued legal challenge to the bloc’s controversial nutrition and health claims regulation (NHCR), a UK food law expert has said.

Owen Warnock, from the Eversheds firm in London, commented that the action lodged at the European Court of Justice (ECJ) by the two professors behind a rejected water-hydration claim, was too technical to have a broader influence – even if it wins.

“While it will be interesting for lawyers to receive the first ruling of the ECJ on the NHCR, the practical impact of the ruling on the food and drink industry is unlikely to be great,” Warnock said.

“The Court is likely to confine its opinion to the fairly narrow issues raised by this particular water case, and not make any general ruling about wider issues of more importance - such as the nature and extent of scientific evidence needed to support health claims.”

“I suspect this case about water will generate quite a lot of hot air – or steam – but will not be of great significance.”

“ECJ decisions sometimes are political”

The action has been mounted against the European Commission by professors Moritz Hagenmeyer and Andreas Hahn, the two who submitted the rejected article 14 water-hydration claim dossier, and who expressed concern about the kind of hearing the case is likely to receive.

“We think that our arguments are convincing,” relayed professor Hahn. “Nevertheless nobody knows whether this will be a political decision.”

“ECJ decisions sometimes are political – or can you really imagine that the court will drop core aspects of such a regulation with the consequence that it will not longer be applicable – at least for a certain time?”

Void?

The action hinges on nine pleas the professors assert renders the NHCR “void”, including:

Arbitrary and unnecessary reliance on reduction in disease risk factors (“legally unjustified”)
The existence of a disease risk factor in their own article 14 submission rejected last year
Non-proportionality
Breach of“essential procedural requirements”
Breach of time limits

Professor Hagenmeyer added: “It would be sufficient for us if we won the case on one of the nine pleas – they are all strong in their own right. We have no idea when the Court of Justice of the European Union will hear our case.”

Warnock suggested a conclusion may not arrive for several years.

Another EU food law expert, who preferred not to be named, said the grounds of the action, “appeared strong”.

The action is published in the latest edition of European Food and Feed Law Review.

The professors, in 2008, had submitted the claim: “Regular consumption of significant amounts of water can reduce the risk of development of dehydration and of concomitant decrease of performance.”

The European Food Safety Authority (EFSA)'s Panel on Dietetic Products, Nutrition and Allergies (NDA) rejected it last year stating dehydration and overall bodily performance 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].”

That opinion can be found here.