That’s Enough Whine, EU Adviser Says

(CN) - German winemakers made improper health claims by marketing wine as "wholesome" and "easily digestible," a high court adviser said Thursday.

The German state of Rheinland-Pfalz brought action against Deutsches Weintor eG, a winegrower cooperative, over the use of the German word bekömmlich to describe their low-acidity wines. The word means "digestible, wholesome, nourishing" according to the opinion by Court of Justice Advocate General Jan Mazak.

Rheinland-Pfalz objected to the use of the word by Deutsches Weintor because of EU rules that prohibit touting health claims for beverages containing more than 1.2 percent alcohol, even where the effect is truthful. The wine in question is made from Dornfelder and grey-white Burgundy grape varieties and is marketed as sanfte Säure/bekömmlich, or "gentle acidity/wholesome."

Deutsches Weintor argued that the word does not refer to health but to general well-being, a notion the regulation was not intended to govern. Two German courts ruled against Deutsches Weintor, leading the grower to the federal administrative court of Germany on appeal. That court referred the action to the EU Court of Justice in Luxembourg with questions regarding the interpretation and validity of the regulation.

In his opinion for the EU high court, Mazak emphasized that it is not for the Court of Justice to determine what is actually meant by bekömmlich. Rather, it must assess whether the notion of "health claim" also covers descriptions or claims that imply only temporary benefits, like gentleness to the stomach while ingesting wine.

The regulation "is framed in fairly general terms as meaning any claim which states, suggests or implies that 'a relationship exists between a food category, a food or one of its constituents and health'.... the regulation is otherwise silent as to what is meant by 'health;' it is safe to say, however, that the term generally refers to the physical and mental condition of a person, both - and, arguably, with a certain measure of ambiguity - in the sense of a certain level of functioning or well-being of the human body and mind ... and in the sense of the ideal state of complete physical and mental well-being," Mazak said.

"Health claim" for the purposes of the regulation "presupposes a positive, beneficial effect on bodily functions," Mazak said. The duration of such benefits has no bearing on the term under the law.

The point of excluding alcoholic beverages under the regulation, even if their benefits are supported by scientific evidence, is to avoid any positive health-related connotations which might encourage the consumption of alcohol leading to abuse and addiction, according to Mazak.

"To my mind, it would be at odds with those objectives ... to construe the concept of 'health claim' so narrowly as to exclude claims which imply a temporary beneficial effect on the physical condition," he wrote. "As a number of the parties have emphasized, this could remove from the protective scope of the regulation a considerable number of products and related claims which, although implying a positive - albeit temporary - physiological effect, are nevertheless likely to encourage the consumption of the food or substance to which they relate."

Permitting claims of a less-adverse physiological effect for products may influence consumer habits and encourage the consumption of such products, the adviser found.

"Thus, to take the wines under consideration, not only may the suggestion of improved digestibility arguably shift consumer preferences away from other beverages of that kind which are otherwise comparable, but also it is conceivable that such a claim may, in absolute terms, encourage consumption of the beverage concerned and even attract new consumers, especially those with sensitive stomachs," he wrote.

Contrary to Deutsches Weintor's claim, the alcoholic beverage prohibition laid out in the regulation does not interfere with the freedoms to choose an occupation and conduct business as provided for in the EU's Charter of Fundamental Rights, Mazak said.

The advocate general's opinion is not binding on the Court of Justice. The national court will consider it and the case at disposition.

That’s Enough Whine, EU Adviser Says

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