CJEU case law

French law on vitamins and minerals contrary to EU law, Court of Justice of the EU by Sebastian MELCHOR

The French law which rejects food supplements from other EU countries with vitamins and minerals above the French national limits is contrary to EU law, according to a recent ruling of the Court of Justice of the EU.

The Court found that, whilst France could maintain its own maximum levels, the absence of a procedure for authorizing food supplements marketed in other EU countries with levels above those limits made the legislation contrary to the principle of mutual recognition.

It is expected that the ruling puts an end to a long-standing practice in France of refusing food supplements with vitamin and mineral levels above informally established maximum limits, irrespective of whether the products have been lawfully marketed in other EU countries.


The ruling may have a significant impact on food supplement sellers in France, who so far have been prevented from using vitamins and minerals exceeding informally established maximum levels (often slightly higher than the legal limits), even if the products are lawfully marketed in other Member States.

These informal levels correspond with recommendations of the French Food Safety Agency, sometimes decades old. In practice, new scientific information cannot be successfully invoked since the authorities base their assessment exclusively on the old recommendations. This has resulted in France maintaining certain stricter standards compared to the rest of the EU.

For example, France applies a maximum vitamin C level of 250 mg/day in food supplements, while Belgium and Italy have raised their maximum levels to 1000 mg/day since they acknowledge that no toxicity has been established for this level in the generally accepted scientific data, including the most recent national and international scientific publications.


Furthermore, the Court reminded France that setting maximum limits should be done on a case-by-case basis, taking into account the upper safe levels established after a comprehensive scientific assessment of the risks for public health. The analysis should be based not on general or hypothetical considerations, but on relevant scientific data.

The Court left to the national court to determine the conformity to EU law of the French system, which is based on the adoption of maximum limits in relation to the recommended daily allowances (RDAs) i.e. a value equal to three times the RDA for nutrients presenting the least risk, equal to RDAs for those presenting a risk of the upper safe level being exceeded and a value below those allowances or even zero for the nutrients involving the most risk.


Finally, the Court confirmed that maximum limits should be based on the most reliable scientific data available and the most recent results of international research. They may not be based merely on national scientific opinions, if recent international scientific opinions concluding in favor of the possibility of setting higher limits are also available on the date of the adoption of the measure at issue.


The ruling explains that France should first of all implement a procedure in their legislation enabling firms to obtain the authorization to use levels of vitamins and minerals above the legal limits for food legally marketed or manufactured in other EU Countries.

In addition, since the most recent scientific data concluding in favor of higher limits should be taken into account when establishing legal maximum levels, any new scientific data should also be taken into account when assessing products marketed or manufactured in other EU Countries. Referring to old assessments if new information has become available, nationally or internationally, would run counter to the principles set out in the ruling.

Judgment of the Court of 27 April 2017 in Case C‑672/15, Noria Distribution SARL

‘Health Claim’ Definition to Be Interpreted Widely, EU Court Rules by Sebastian MELCHOR

In its first judgment on Regulation 1924/2006 on nutrition and health claims made on foods, the Court of Justice of the EU adopted a broad interpretation of the definition of “health claim” by ruling that claims for merely temporary or fleeting effects of a food on human health, such as in the claim "easily digestible", are indeed health claims (Case C-544/10 Deutsches Weintor).

A health claim is defined as any claim that states, suggests or implies that a relationship exists between food and health. The Court stressed that since this definition does not provide information as to whether that relationship must be direct or indirect, or as to its intensity or duration, the term relationship “must be understood in a broad sense”. 

Regulation 1924/2004 prohibits beverages containing more than 1.2% by volume of alcohol from carrying health claims. A German wine was described on its label as "easily digestible" accompanied by a reference to reduced acidity. The Court was asked in essence whether that amounted to a health claim.

It was argued that, since digestion had only temporary or fleeting effects, a description such as "easily digestible" was not a health claim because it did not imply that the beneficial nutritional or physiological effect led to a sustained improvement in physical condition.

The Court rejected that argument. It ruled that "health claim" covered not only an implication that health would improve as a result of consuming a food but also an implication that adverse or harmful effects on health which would otherwise accompany or follow such consumption were reduced or absent. Moreover, a health claim refers not only to the temporary or fleeting effects of a specific instance of consumption of a food but also to the effects of repeated, regular, even frequent consumption. 

A claim which suggests that a wine is readily absorbed and digested implies that the digestive system will not suffer, or will suffer little, and will remain relatively healthy and intact even after repeated consumption over an extended period of time. The claim might therefore suggest a sustained beneficial physiological effect (consisting in the preservation of a healthy digestive system) in contrast to other wines.

Demarcation “objective information” vs “health claims” unresolved

Contrary to the Opinion of the Advocate General Mazák delivered on 29 March 2012 on this matter, the Court did not embark on the heated discussion of whether objective, factual statements linking consumption of a food and effects on human health (e.g. “glucosamine is an essential component of cartilages”) fall under the definition of health claim. According to Mazák, whilst the definition of health claim “is framed in fairly general terms”, “for there to be a health claim within the meaning of [Regulation 1924/2006], the description must imply that the food concerned has … specific health benefit or beneficial physiological effect”.