Restriction of use for health claims in regard to water: interpretation in conformity with the EU law; otherwise advertising ban violates the EU law.

摘要

According to the Commission Regulation (EU) No 432/2012 of 16 May 2012, the health claims that water contributes to the maintenance of normal physical and cognitive functions, and also to the maintenance of normal regulation of the body's temperature, have been admitted. As a condition/restriction of use, this Regulation however establishes that these two claims "may be used only on water complying with Directives 2009/54/EC and/or 98/83/EC". It is not clear from this wording, if it means that these water health claims may only be used for drinking water and natural mineral water as a final product; or if this means that these claims may also be made for other foodstuffs, including non-alcoholic beverages, as long as they contain, in a significant amount, drinking water or natural mineral water as an ingredient/compound. The author is assuming that the first, narrow interpretation, would result in an advertising ban not consistent with the principle of proportionality and with fundamental rights of the economic operators (freedom of expression, freedom to pursue a professional activity and to conduct a business, principle of equal treatment) and in this respect violates the EU Law. Therefore, according to the canons of interpretation of EU law, we are convinced that this restriction of use, set out in Regulation (EU) No 432/2012, must be interpreted in conformity with primary EU law; thus, in a broad sense, meaning that the permitted water health claims may be made for all water based foodstuffs, including non-alcoholic beverages (such as fruit and vegetable juices, infusions prepared with water and herbs or parts of plants such as flowers or fruits, tea, coffee and also softdrinks, which typically have a water content between 90 % to 99 %). The question as to whether these water health claims are banned in specific cases, for reasons of consumer protection and health policies, cannot be solved by imposing specific restrictions of use in Regulation (EU) No 432/2012, but by applying, on the basis of a "case by case basis" approach, the general principles and conditions laid down in Regulation (EC) No 1924/2006, applicable to all health claims; such as nutrient profiles and also the requirement that the use of health claims shall not be false, ambiguous and misleading, nor shall it encourage or condone excess of consumption of a specific food. The legal reasons for this interpretative conclusion are explained in the present article.