Advocate-general finds advertising for a wine illegal
By Sophie Petitjean | Friday 30 March 2012
In the view of the advocate-general of the EU Court of Justice (ECJ), advertising for a wine suggesting a temporary beneficial effect on the stomach is prohibited (Case C-544/10). Jan Mazák gave his conclusions, on 29 March, in answer to a question referred for preliminary ruling by the Federal Administrative Court in order to find out whether claiming in an advertisement that a wine is ‘bekömmlich’ (wholesome, easily digestible), coupled with a reference to gentle acidity, constitutes a health claim in the meaning of Regulation 1924/2006. The wine in question is made at the wine cooperative Deutsches Weintor and on the label it says that the drink is “pleasant on the palate, [and] owes its mildness to the application of our special LO3 protective process for the biological reduction of acidity”. The label on the neck of the wine bottles includes the words: ‘Edition Mild bekömmlich’ (Edition Mild wholesome/easily digestible). Mazák recalls in his conclusions that health claims on a European level are covered in Regulation 1924/2006, which bans misleading and/or untruthful claims; moreover as regards alcoholic beverages containing more than 1.2% by volume of alcohol, the regulation prohibits the use of health claims generally, that is to say, irrespective of whether the beneficial effect implied is truthful. The term ‘health claims’ are claims on labels for advertising purposes or on marketing products and which promote the role of a nutriment on health.
Mazák emphasises that it is not for the EU Court of Justice (ECJ) to determine what is actually meant by ‘bekömmlich’, coupled with a reference to gentle acidity of the wine, and whether this description amounts to a ‘health claim’ for the purposes of the regulation.
According to Mazák, it is for the national court to carry out such an analysis in the light of the relevant provisions of Regulation 1924/2006, as interpreted by the ECJ. However, he finds that it would be contrary to the aforementioned objectives of Regulation 1924/2006 to interpret the concept of ‘health claim’ so narrowly as to exclude claims that imply a temporary beneficial effect on physical condition. The advocate-general also points out, in response to a second application for a preliminary ruling submitted by the German administrative court, that the general prohibition laid down in the regulation on the use of health claims like the one in question in relation to alcoholic beverages like wine, is compatible with the freedom to choose an occupation and the freedom to conduct business as established in the Charter of Fundamental Rights of the European Union.
These conclusions are an independent analysis by the advocate-general and are not binding on the Court of Justice, which will hand down its ruling at a later date.