Case C-609/12, Ehrmann – monstrously sweetened health claims [judgment 2014, ECLI:EU:C:2014:252]

‘Just as important as the daily glass of milk!’, trumpeted the slogan. ‘And nearly three times the sugar’, echoed the nutritional information from the side of the pot. Is the slogan a health claim? And does it infringe Articles 9 and 10 of the EU’s nutritional claims Regulation 1924/2006?

Facts
Ehrmann makes dairy products. One of its products is a 50 gram ‘Monster pot’ of fruit quark. These are sold in packs of six. Slapped across the top of the six-pack is the slogan: ‘Just as important as the daily glass of milk!’. But the nutritional information on the packaging indicates that although the calcium content equates to that of a glass of milk, the sugar content is nearly three times as high.

A dispute arose between Ehrmann and the German unfair competition authority, which was escalated to the German Supreme Court.

The First Chamber Senate of the Civil Division at the Supreme Court looked at the CJEU’s recent judgment in C-544/10, Deutsches Weintor (paragraphs 34 and 35). The Senate decided that the slogan on the Monster pots was not a nutritional claim within the meaning of Article 2(2)(4) of the Regulation but it was a health claim within the meaning of Article 2(2)(5). The Senate reasoned that the advertising on the pots played on the widespread understanding that children and young people should drink a glass of milk every day because the minerals found in milk would benefit their health. The slogan suggested a link between the prized foodstuff and the health of the consumer.

Having established the existence of a health claim, the Senate went on to note that health claims were banned unless they complied with: (i) the general requirements of Articles 3 and 7 of the Regulation; (ii) the specifics as set out in Articles 10 though to 19; and (iii), the makers had permission and were included in the claims authorised by Articles 13 and 14.

In that context, the Senate took the view that the health claim on the Monster pots complied with (i) the general requirements in Articles 3 and 7. However, the Senate pointed out that Ehrmann could not comply with the third requirement because at the relevant time (2010) no list had been compiled for Article 28(5) and (6). What was not clear to the Senate was whether Ehrmann had complied with the second requirement – the specifics of Articles 10 to 19 – and even whether Article 10(2) was applicable at the time.

Article 10(1) and (2) of the Regulation provides:

Specific conditions
1. Health claims shall be prohibited unless they comply with the general requirements in Chapter II and the specific requirements in this Chapter and are authorised in accordance with this Regulation and included in the lists of authorised claims provided for in Articles 13 and 14.
2. Health claims shall only be permitted if the following information is included in the labelling, or if no such labelling exists, in the presentation and advertising:
(a) a statement indicating the importance of a varied and balanced diet and a healthy lifestyle;
(b) the quantity of the food and pattern of consumption required to obtain the claimed beneficial effect;
(c) where appropriate, a statement addressed to persons who should avoid using the food; and
(d) an appropriate warning for products that are likely to present a health risk if consumed to excess.

The Senate noted three possible alternative interpretations. One alternative relied on German case law and commentary to say that health claims would only be permitted after July 2007 if they contained the information specified in Articles 10(2)(a)-(d) of the Regulation (see for example, the judgment from the OLG in Nürnberg, 2008; and the commentary of Rathke in Lebensmittelrecht). This interpretation was supported by the drafting of Article 28(5) of Regulation, which made absolutely no mention of Article 10(2). Now if that interpretation would be correct, then the Senate pointed out that the appeal was well founded.

However, a second interpretation would lead to the opposite result. The argument in this interpretation ran along the lines that Article 10(2)’s duties to inform only arose once the list of authorised health claims had been drawn up in accordance with Article 13(3) of the Regulation. Using a systematic interpretation of the Regulation, the Senate could see some support for this argument. Article 10(2)’s specific informational obligations only concerned claims permitted by Article 10(1) of the Regulation. Further, the inference could be drawn that the EU legislature had not intended an unlimited application of Article 10(2) prior to the drawing up of the lists under Articles 13 and 14 of the Regulation. And in this respect, the Senate repeated a quote taken from an administrative text drawn up by the UK’s Foods Standards Agency, which had issued ‘Guidance to Compliance (Version 1) (April 2008), and in which was stated at 6.3 on page 33:

‘Labelling requirements for health claims (Article 10)
Article 10 requires additional statements to be made in the labelling (or if there is no labelling, in the presentation and advertising) of products that make health claims. It is the Agency’s view that these do not become requirements until the Community Register of authorised health claims is adopted …’.

The Senate concluded that if this interpretation were right, then the appeal would be without foundation.

A third alternative interpretation had been aired ostensibly in Austrian legal literature. That is to say, there was agreement that Article 10(2)(b) applied only once the list of authorised health claims had been drawn up. In light of the future nature of the Community lists of all authorised claims and the conditions for their use, food producers could not be obliged to comply with duties where this would require a knowledge of the Commission’s practices, of which there was not even a hint at that stage. The Senate pointed out that this seemed to have been the approach taken by the Austrian Ministry of Health, Family and Youth matters – an approach reprinted in Meisterernst and Haber’s ‘Praxiskommentar Health & Nutrition Claims’, Appendix A.II.12. Applying that approach here would result in the slogan not infringing Article 10(2)(b) of the Regulation but infringing Articles 10(a)(c) and (d). And in light of interpretation 1, the appeal would therefore be well-founded.

Question Referred
An unofficial translation of the question asked by the five-judge German Supreme Court reads:

Should the information obligations in Article 10(2) of Regulation 1924/2006 already have been complied with in 2010?