Dextro: Claims could have been authorised with conditions of use

Dextro Energy glucose claims contest goes into extra time at ECJ

By Shane STARLING contact

- Last updated on GMT

EU banana skin: Rejected Dextro says 'principles of proportionality and equality have not been properly observed'
EU banana skin: Rejected Dextro says 'principles of proportionality and equality have not been properly observed'

Related tags: European union

German firm Dextro Energy has taken the fight to use five EFSA-approved – but EC-rejected – glucose-based sports nutrition claims to the EU’s highest court.

The EU General Court backed the European Commission’s right to veto the claims over sugar intake concerns in March; now Dextro Energy wants its claims back and says the EC ‘exceeded its discretion’ as a risk manager in a new appeal to the EU Court of Justice (ECJ) in Luxembourg.

The action, based on similar arguments as its original appeal, asserts the General Court failed to assess this in detail” ​and has failed EU nutrition and health claims regulation (NHCR) objectives, “namely consumer health protection.”

The case highlights the tension that can exist between policy-concerned EU risk managers like the EC and science-focused risk assessors like the European Food Safety Authority (EFSA).

Not ambiguous, not misleading…

“The Commission exceeded its discretion by way of not authorising the claims. A ban of Dextro’s claims cannot be justified with allegedly ‘generally accepted scientific advice’,”​ the action reads.

“The claims do neither convey a conflicting or confusing message to consumers, nor are they in any way ambiguous or misleading. The Commission should at least have authorised them with specific conditions of use. The statutory principles of proportionality and equality have not been properly observed.”

Dextro Energy, formerly owned by Unilever, may well feel aggrieved given the EC in 2015 OK’d a carbohydrate-based muscle recovery claim for French sports brand Aptonia (owned by Decathlon), which presented data on an athletic rather than general population.

Which population? Which type of regulation?...

Dr Adam Carey, chair of the European Specialist Sports Nutrition Alliance (ESSNA), told us the issue highlighted the fact the nutritional needs of sporting populations were not the same as the general population; most typically that they had higher carbohydrate expenditure due to the exertion.

"ESSNA understands that these glucose claims have been rejected because the evidence provided to EFSA only substantiated the basic energy-yielding metabolism for the general population rather than the other claims put forward, such as those targeting sportspeople specifically,” ​Dr Carey said, noting regulatory deliberations were occurring at EU level to reflect this fact.

For ESSNA, it is crucial that the needs of sportspeople are recognised within the context of the NHCR, and we are working with the European Commission to ensure an appropriate regulatory framework for the sector after July 2016.

Dr Adam Carey-ESSNA
Dr Adam Carey: Sporting nutrition needs are different to general population needs

“Within ESSNA, we are working with members to ensure that, in future, health claims are submitted alongside the relevant evidence to the target population, so that they can be adequately considered by the risk manager.”

The importance of scientific substantiation

The current Dextro Energy action goes onto to state that no right of veto is written into the NHCR, noting the most important element for EC assessment of claims “is a positive EFSA [European Food Safety Authority] opinion.”

“The essential objective of the law is that health claims are scientifically substantiated – as in the case of Dextro’s claims in issue.”

The EC refused Dextro Energy’s five claims over concerns they could encourage excessive sugar intake in the general population.

Dextro Energy’s legal representative, professor Moritz Hagenmayer, who famously challenged the NHCR over a rejected water-hydration claim (and lost), said he did not expect the appeal to be heard this year. He would not otherwise comment on the case.

Glucose case history – ‘the Commission did not err’

arm wrestle competition sports nutrition muscle business iStock.com MayerV
©iStock

EFSA approved the five glucose claims in 2012 but EU member state objections led to the EC prohibiting the claims in 2015, after three years of debate between stakeholders. It was then Dextro Energy appealed the prohibition to the EU General Court.

That March ruling, in backing the risk manager role of the EC, stated: “Since, according to generally accepted principles of nutrition and health, the average consumer must reduce their consumption of sugar, the Commission did not err in finding that the health claims in question, which highlight only the beneficial effects of glucose for energy metabolism without mentioning the dangers inherent in increased sugar consumption, were ambiguous and misleading and, accordingly, could not be authorised.”

Dextro Energy manufactures sports nutrition products in different formats consisting almost entirely of glucose. Its 'classic cube' packs contain eight tablets of glucose at 6 g each.

The firm did not respond to questions at the time of publication.

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