IP, IT & Life Sciences

What Does “Bekömmlich” Mean? (Easily Digestible)

Regulation (EC) No 19242006 (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 19242006 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.

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