Austria: What Does "Bekömmlich" Mean? (Easily Digestible)

Regulation (EC) No 1924/2006 (Health Claims Regulation) prohibits health claims unless they com ply with the general and specific requirements of the Regulation. As regards alcoholic beverages, the Regulation contains a particularly strict provision. Under Article 4 para 3, beverages containing more than 1.2% by volume of alcohol may not bear any health claims. In its judgment of 9 June 2012 in the case C-544/10, the European Court of Justice (ECJ) classified the term "bekömmlich" (easily digestible) in connection with wine as a health-related statement. In response to this judgment, the media reported that the term "easily digestible" is considered an unlawful health-related statement. This is questionable.

Health claims – well-being claims

Art 2 para 2 number 5 Health Claims Regulation defines health claims as any claim that states, suggests or merely implies that a relation ship exists between a food category, a food or one of its constituents and health.

How ever, a distinction must be made between health claims on the one hand and reference to the well-being on the other. The well-being reference itself again is to be divided into reference to the health-related wellbeing and non-health-related well-being. The latter reference does not necessarily have to comply with the provisions of the Health Claims Regulation since it is not covered by the definition of "health claims".

It follows that reference to non-health-related well-being is not subject to the prohibition of Art 4 section 3 of the Regulation, under which beverages containing more than 1.2% by volume of alcohol may not bear heath claims.

The proceedings before the ECJ were thus followed with particular interest since an explanation and clarification on the distinction between the terms "health claim – reference to the non-health-related well-being" was expected.

"Easily digestible"

The claim "bekömmlich" (easily digestible) traditionally has been under stood and regarded as non-health related. The claim "easily digestible" creates (as well as the equally frequently used term "wohltuend" [wholesome]) the impression that the food is light fare, which means that it is good for the consumer and gives a feeling of well-being. The claim generally does not make the impression that the food in question contributes to the preservation or improvement of health. At least this reflects the long-standing practice in Austria that statements such as "easily digestible", "whole some", "vitalising" and "for well-being" are non-health related.

All the more surprising, then, that the surveillance authority of a German federal state classified the claim "easily digestible" as health-related, which eventually led to the request of the Federal Administrative Court for a preliminary ruling to the ECJ.

The ECJ ruling

How ever, even from the question of the Ger man Federal Administrative Court one had to be afraid that it would not lead to the hoped-for general clarification by the ECJ. The question, strictly speaking, implied that the term "easily digestible" suggests a (if only brief) positive nutrition-related or physiological effect.

Then, in a rather unusual approach, the ECJ itself formulated the question to be answered. On the basis of the abstract question referred for a preliminary ruling, the ECJ explicitly established a relation to the terms incriminated in the national proceedings (besides the claim "easily digestible", the term "gentle acidity" was used) and to the products in question (wine).

The ECJ ruled that the first sub paragraph of Article 4(3) of Regulation No 1924/2006 had to be interpreted as meaning that the words "health claim" cover a description such as "easily digestible" that is accompanied by a reference to the reduced con tent of sub stances frequently perceived by consumers as being harmful.

With the indication "reduced content of substances ..." the ECJ refers to the claim "gentle acid", which in the ECJ's opinion suggests that, in view of the reduced acidity, the wine in question is particularly easy or pleas ant to digest.

Summary

From the Court's decision it is not apparent that the term "easily digestible" as such is a "health-related claim". Rather, the Court reached this conclusion only because the term "easily digestible" was accompanied by a reference to the reduced content of substances frequently perceived by consumers as being harmful (namely, the reference to reduced acidity).

This means:

  • The ECJ did not clarify whether the term "easily digestible" itself is a health-related claim. Thus, it must not be deducted from this judgement that the ECJ generally prohibited the use of the term "easily digestible" as health-related.
  • Rather, the term "easily digestible" was classified as a health claim if accompanied by a certain reference (in the case at hand: gentle acid).
  • There are no reasonable grounds to apply the judgment to non-alcoholic drinks.
  • The Court's judgment must be regarded as closely linked with wine and, generally, with alcoholic beverages.

"The claim "bekömmlich" (easily digestible) traditionally has been understood and regarded as non-health related.

This article was originally published in the schoenherr roadmap`13 - if you would like to receive a complimentary copy of this publication, please visit: pr.schoenherr.eu/roadmap.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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