Case C-157/14, Neptune – mineral water salinity [judgment 2015, ECLI:EU:C:2015:823]

Neptune Distribution sells mineral water in bottles. The bottle-labels claim that the water is ‘low in salt’. Yet the mineral water is high in sodium bicarbonate. So is the label legal under EU law? The answer would appear to be ‘Yes’, if the word ‘salt’ only means sodium with related chloride ions; or ‘No’, if ‘salt’ means sodium in all its forms, including sodium bicarbonate. And what should be done if the company has wrongly been ordered by a state body not to use the words ‘low in salt’ because of the EU’s nutrition and health claims Regulation 1924/2006, and the EU’s marketing mineral waters Directive 2009/54/EC? Can the company claim that contrary to the EU Charter and the ECHR, its freedom of expression has been infringed, and the freedom to conduct its business has been interfered with?

Facts
Neptune Distribution sells carbonated mineral water in bottles. Its product range includes bottles of ‘St-Yorre’ and ‘Vichy Célestins’. Each brand claims to be low in salt, and the labels on the bottles make a series of claims about what salt is in the water, and they explain that the levels of salt are less than that found in milk.

Namely, the label on the bottles of St-Yorre informs consumers that the sodium in St-Yorre is essentially sodium bicarbonate; and that a litre of St-Yorre water contains only 0.53g of salt or sodium chloride – less salt than in a litre of milk.

The label on the bottle of Vichy Célestins is even more nuanced. It claimed that ‘Salt is not the same as sodium – the sodium in Vichy Célestins is in essence sodium bicarbonate, which is not be confused with table salt (sodium chloride)’. The label goes on to say that a litre of Vichy Célestins only contains 0.39g of salt per litre, a level two or three times less than that in a litre of milk.

The wording of these labels landed the company in hot water. The relevant French regional market inspectorate [la direction régionale de la concurrence, de la consommation et de la répression des fraudes d’Auvergne] very much objected to the wording on the labelling on the bottles, and it ordered the company to remove the claims from the labels on those brands of mineral water.

After a couple of rounds of litigation, the matter went before the French Conseil d’État which prior to making its reference to the CJEU explained the problems with the wording on the labels.

The biggest problem was that the labels suggested that the mineral water was suitable for a low-salt diet. The phrase ‘suitable for a low-salt diet’ is one regulated by EU law. It crops up in the EU’s nutrition and health claims Regulation (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] L404/9)).

The relevant provision in the nutrition and health claims Regulation states:

LOW SODIUM/SALT
A claim that a food is low in sodium/salt, and any claim likely to have the same meaning for the consumer, may only be made where the product contains no more than 0,12 g of sodium, or the equivalent value for salt, per 100 g or per 100 ml. For waters, other than natural mineral waters falling within the scope of Directive 80/777/EEC, this value should not exceed 2 mg of sodium per 100 ml.

VERY LOW SODIUM/SALT
A claim that a food is very low in sodium/salt, and any claim likely to have the same meaning for the consumer, may only be made where the product contains no more than 0,04 g of sodium, or the equivalent value for salt, per 100 g or per 100 ml. This claim shall not be used for natural mineral waters and other waters.

And when it comes to the sale of mineral water, there is another piece of EU legislation which needs to be taken into account, namely, the EU’s Directive 2009/54/EC on the exploitation and marketing of natural mineral waters (as Recast in OJ [2009] L164/45).

Annex III to Directive 2009/54/EC sets out the phrases which can be used by a company to market mineral water together with the requisite technical properties which that mineral water must possess if the phrase is to be used correctly. Thus, the phrase ‘Suitable for a low-sodium diet’ can only be used if it has a ‘Sodium content less than 20 mg/l’.

In light of these two planks of EU legislation, the EU legal problem becomes, ‘What is the correct interpretation which should be given to the phrase ‘equivalent value for salt”? Does this mean the amount of sodium which is capable of forming ‘salt’ – namely, sodium in combination with chloride ions that form sodium chloride? Or, since naturally-occurring sodium is frequently bonded to other chemical elements, should this be taken to mean the total amount of sodium in the foodstuff in all its compound forms?

A further problem perplexed the the French Conseil d’État, namely, that of fundamental rights. What should be done where a state body has ordered the removal of the words ‘low in salt’ from the company’s labelling and advertising, when in reality the information which the company was seeking to impart to the consumer might be factually correct because its product was indeed low in sodium chloride. Would that administrative order not amount to an infringement of the company’s EU Charter rights to freedom of expression and the freedom to conduct its business, and also amount to an infringement of the corresponding rights under the ECHR?

And if that were so, then what should the Conseil d’État do when it came to assessing whether any such limitation on a company’s EU Charter rights was necessary and proportionate? The aim of the Directive was to ensure a high level of protection for consumer health. Would a consumer be misled by the words ‘low in salt’, if the relevant amount was the total quantity of sodium in the mineral water? And did it matter that when it came to the health of patients with high blood pressure – or consumers in general – experts had expressed serious doubts about the validity of any strict correlation between on the one hand the consumption of mineral water high in sodium carbonate; and on the other, the consumption of mineral water that was high in sodium chloride.

In these circumstances, the French Conseil d’État felt it appropriate to seek guidance from the CJEU.

Questions Referred
According to the Curia website, the Conseil d’État has asked:

1.Is the basis for calculating the ‘equivalent value for salt’ of the quantity of sodium present in a foodstuff, for the purposes of the annex to Regulation (EC) No 1924/2006 […] constituted only by the quantity of sodium which, when associated with chloride ions, forms sodium chloride, or table salt, or does it include the total quantity of sodium in all its forms contained in the foodstuff?

2. In the latter case, do Article 2(1) of Directive 2000/13/EC and Article 9(1) and (2) of Directive 2009/54/EC […] together with Annex III to the latter directive, read in the light of the equivalence established between sodium and salt in the annex to Regulation (EC) No 1924/2006, infringe the first subparagraph of Article 6(1) of the Treaty on the European Union, read with Article 11(1) (freedom of expression and information) and Article 16 (freedom to conduct a business) of the Charter of Fundamental Freedoms of the European Union, and Article 19 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, by prohibiting a distributor of mineral water from placing on his labels and advertising material any indication as to the low salt content or sodium chloride content, which could be that of his product that is high in sodium bicarbonate, inasmuch as that indication would be likely to mislead the purchaser in regard to the total sodium content of the water?