What Does “Bekömmlich” Mean? (Easily Digestible)

→ Christian Hauer

Regulation (EC) No ¹⁹²⁴⁄₂₀₀₆ (Health Claims Regulation) prohibits health claims unless they comply 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 rela­tion­ship exists between a food cat­e­go­ry, a food or one of its con­stituents and health.

How­ev­er, 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 well-being 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 under­stood 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”, “whole­some”, “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

How­ev­er, even from the ques­tion of the Ger­man 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 sub­para­graph 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 con­tent of sub­stances 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 pleas­ant 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.