The Opinion of Advocate General Mazák on the definition of ‘health claim’ in alcohol marketing

The Opinion of Advocate General Mazák in Deutsches Weintor eG v Land Rheinland-Pfalz (C-544/10)

The Court of Justice received a request for a preliminary ruling from the German Federal Administrative Supreme Court (Bundesverwaltungsgericht) in relation to the interpretation of Art. 2(5) of Regulation 1924/2006 on nutrition and health claims made on foods, providing for the definition of ‘health claim’. The case concerns a German company’s (Deutsches Weintor eG) advertising policy for wine. The label states that the wine will have a temporary beneficial effect on the stomach. It also claims that the wine has a reduced acidity in comparison with equal kinds of wine. The authority in charge of supervising the marketing of alcoholic beverages in Rheinland-Pfalz considered this as a violation of the Regulation which aims at protecting the consumers from dishonest and deceptive marketing. According to the Regulation “beverages containing more than 1.2 % by volume of alcohol shall not bear health claims”, whether or not they have a beneficial effect on health. This is to prevent the risk of addiction and abuse relating to unhealthy consumption of alcohol. The purpose is to limit the encouragement of alcohol consumption on the basis that it will benefit health. The company has used the word “bekömmlich” which means wholesome, easily digestible, gentle on the stomach. The label on the neck of the wine bottles bears the inscription: ‘Edition Mild bekömmlich’ (Edition Mild wholesome/easily digestible). Also in the price list the wine is described as Edition Mild – gentle acidity/wholesome. The label asserts that the mildness of the wine comes from a special process that reduces the biological acidity.

Advocate General Mazák delivered his Opinion in this case on 29 March (Press release here), affirming that this advertising does not comply with the Regulation. The questions referred by the German court to the ECJ concern the interpretation of the Regulation. In the first question there is a need for the definition of “health claim”, which in relation to alcoholic beverages such as the wine at issue is generally prohibited under the Regulation and if a temporary beneficial effect is included in the prohibition. Moreover, the national court asks whether the prohibition is compatible with freedom to choose an occupation and the freedom to conduct (Articles 15(1) and 16(1) of the Charter of Fundamental Rights of the European Union).

One must first investigate how the term “bekömmlich” will be regarded in the view of a typical consumer. According to Mr. Mazák the description of the wine at issue may not be understood by an average consumer as a reference to the general characteristics of the wine. After stating that the term at issue actually is a health claim, as in the wording of the Regulation, still a further question remains: whether claiming temporary beneficial effects on health is included in the prohibition. The Commission has earlier noted that non-specific positive physiological or metabolic effects which are merely connected in a general way with the intake of food – such as the nourishment of the human organism, which is naturally vital for the maintenance of bodily functions – are excluded a priori from the scope of the term ‘health claim’. At the same time it observed that many medicinal products provide only temporary relief or have only short-term effects on the human body, and yet it is generally not disputed that those medicines are health-related.  Advocate General Mazák considers it artificial to exclude temporary effects from the notion of ‘health’. He emphasises the importance of the objectives of the Regulation. According to him the aim is to define the concept of ‘health claim’ broadly with a high level of consumer protection. The Regulation seeks to protect the consumer from statements that may be misleading. It is worth to specify again that the products subject to the prohibition are those beverages which contain more than 1.2 % by volume of alcohol. This prohibition is regardless of whether the beneficial effect implied is truthful or not. It is Mr. Mazák’s opinion that a narrow definition of health claim cannot be accepted because it would remove from the protective scope of the Regulation a considerable number of products and related claims.

The last question concerns whether this prohibition might have an impact on the freedom of occupation and the freedom to conduct business, even if fundamental rights are not absolute. According to the Advocate General the general interest pursued by the Union must be taken into consideration, and in case of conflict a limitation of either right must be subject to the principle of proportionality and necessity. The aim of the Regulation is to pursue a high level of protection of public health and to reduce the consumption and abuse of alcohol. The Court has on several occasions recognised public health as a general interest of the Union and has also held that public health may justify restrictions that can have serious consequences for business activities and freedoms. In Mr. Mazák’s opinion the aim to protect public health in the current case does not go beyond what is necessary to achieve that aim, so there is no violation of the Charter.

It seems clear that the Court should follow the Opinion of Advocate General Mazák. He analysed the importance of public health. The interest of public health seems to be under development where the high level of protection should increase. Obviously, in a conflict between business-related freedoms and consumer protection, the last one should take precedence because of public health aims. Judicial analysis must be certainly made on a case by case basis, and conflicts should be resolved in the light of the principles of proportionality and necessity. Even if the Advocate General would had considered the temporary health claim to be excluded from the prohibition provided by the Regulation, one must still balance the business interests and the protection of health interests. In such a conflict it must be considered, again, that the need for health protection is of greater importance. In this case the company claims a beneficial effect on the stomach. First of all, this claim could increase the consumption of wine, which in itself is incompatible with the aim of the Regulation. Furthermore, even with a beneficial effect on the stomach, wine as such still has other harmful effects on the body, e.g. damage on the liver, reduced body control and headache. The negative effects on health still remain even with a beneficial effect on the stomach and cannot be considered proportional. Regardless whether the claimed beneficial effect on health is truthful or not, it is still prohibited since it is an alcoholic beverage.

Amelie Edgren, Stina Haglund, Lina Olsson

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About eulaworebro

Örebro Universitet (Sweden)
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3 Responses to The Opinion of Advocate General Mazák on the definition of ‘health claim’ in alcohol marketing

  1. S.W says:

    I think that this is a good reflection and summary of the Advocate General’s opinion in this case. I agree with the authors that the Court should decide in accordance with Advocate General Mazák, because I do not see the proportionality between the ‘health claim’ of the product and that side effect that alcohol de facto has on the human body. I think it is a very good reflection from the group and also a little fun side note to include those effects that probably all who consume alcohol know about, especially the day after a big party.

    It is further interesting to see how strong the ‘public health’ claim is in this case, and from there relate to the retail monopoly we have in Sweden, Systembolaget. The protection of public health is a strong argument when taken into consideration with alcohol because of all the well-known effects on the body that alcohol has. Maybe more countries should consider a retail monopoly similar to the one in Sweden. I think they should.

    The only thing that might have been done differently is to include in what article of the regulation the 1.2% alcohol threshold can be found. It is not hard to find by just open the regulation and search the document, but I think that everything that makes it easier to find a reference is good.

  2. Josefin says:

    I think that this opinion from the advocate general is quite in line with the Swedish way of thinking about alcohol and health. A general view is that large alcohol consumption is bad for you, damaging your body, is addictive and can cause problems. Because of this, we have very strict rules regarding selling, marketing and promoting alcoholic beverages. For us, it would have been quite strange if it were possible to market wine as ‘healthy’ or ‘good for your stomach’, and it would also, as the authors say, be incompatible with the regulation. But the question is not that obvious to others, in many places alcohol, especially wine, is considered to be good for your health, of course then in small doses… So it is important to show that the regulation does not compromise the dangers of alcohol and not to exclude it because of the short-term benefits. And even if the health claims are true and a glass of wine a day does keep the doctor away, it is not ethically correct to promote it that way, considering all the problems we are facing today due to drinking. Alcoholism, drunken driving and lost control are all bad side-effects that should be on the label as well with the health-claim, just as any other medicine. The regulation is in place to protect human health, and it should not be compromised and the advocate general’s opinion shows that

  3. Airton Valente Junior says:

    It would be easy and safe to follow the Advocate General opinion, once it reinforces the Regulation and protects the consumers, and also agree with all that had been said about the case, but playing a role of a devil´s advocate seems to be enriching and challenging, especially when deals with one of the drugs that is more freely accept in society.

    No doubt that as a legal drug, alcohol has to be treated with special considerations. However, apart from the legal issue, anyone that wants and is allowed to drink alcohol will do it, no matter what says any warning. The point then is if the advertising was misleading and dishonest, once doing so, would be not necessary to see if it induces the consumers. The idea of propaganda is to make the product more attractive to the consumers and give them a reason to buy it. The label stated “‘It owes its mildness to the application of our special LO3 protective process for the biological reduction of acidity’ and then “Edition Mild wholesome/easily digestible”. Is there any absence of ethics or true in the advertising? Only a technical procedure during the cases would show that. It would be an interesting opportunity to see what an expert would say in the procedure in the ECJ, if the issue had been brought to the case. Is this against any article in the Regulation? It does not seem to, because the fact that a chemical ingredient (LO3), indeed, help the digestion during the consumption and only during it. Besides that is not a health claim, but only a consequence of the application of the (LO3).

    It seems that there was no breach to Article 5 and 6 of the Regulation and no deficiency in the advertising, that only pointed that the product has a substance that decrease the acidity of it and then that the effect in the body could be notice by a gentle digestion. The point in the case was then, to prove if that was true. If so, there would have nothing wrong with it and the case should be dismissed. But because other arguments and considerations were brought to the case, especially from the Deutsches Weintor, this issue was not analyzed and the outcome seems that will be in the disservice of the Deutsches Weintor.

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