As Sweet As It Gets - Can Sugar Ever Carry a Health Claim?

Dextro Energy GmbH & Co KG v Commission – Case T-100/15

Dextro Energy, a German firm that manufactures products consisting primarily of glucose, a simple sugar, has lodged an appeal with the ECJ, to a decision of the EU General Court upholding the European Commission’s veto of the authorisation of the following health claims related to glucose:

• Glucose is metabolised within the body's normal energy metabolism.
• Glucose supports normal physical activity.
• Glucose contributes to normal energy-yielding metabolism.
• Glucose contributes to normal energy-yielding metabolism during exercise.
• Glucose contributes to normal muscle function.

The case highlights the potential for differing viewpoints among evidence-based risk assessors such as those within the European Food Safety Authority (EFSA), and policy-based risk managers such as those within the European Commission. The case also stands as an example of the balancing exercise, taking place in Europe and many other jurisdictions, between consumers and industry. In a global market where consumers have become increasingly sensitive to such claims (as their appreciation of the link between nutritional choices and health has developed), the important process of pre-market substantiation and approval of health claims, designed to protect consumers from misleading information, can also give rise to a disproportionately high burden for industry and regulatory authorities that can outweigh the potential for healthier, or at least better informed food choices on the part of consumers.

In the case of Dextro Energy’s health claims related to glucose, EFSA considered that the presented data evidenced a link between the consumption of glucose and a good metabolism. The five claims were therefore approved by EFSA in 2012 [EFSA Journal 2012; 10(5) 2694-2698]. However, the Commission subsequently refused to authorise the health claims on the basis that the claims would, in the Commission’s view, convey a conflicting message to consumers, the rationale being that the authorisation of such claims would encourage the consumption of sugars in circumstances where national and international authorities were recommending reduced sugar intake. The EU General Court agreed, with a subsequent CURIA Press Release reporting the Court’s rationale as follows:

“Since, according to generally accepted principles of nutrition and health, the average consumer must reduce their consumption of sugar, the Commission did not err in finding that the health claims in question, which highlight only the beneficial effects of glucose for energy metabolism without mentioning the dangers inherent in increased sugar consumption, were ambiguous and misleading and, accordingly, could not be authorised.”

In this jurisdiction, related concerns arising from the potential for confusion amongst young consumers targeted by the sports nutrition sector have been identified and addressed by the Food Safety Authority of Ireland at a Food Safety Consultative Council Meeting in April of this year.

In Europe, it would appear that these types of ‘common sense’ policy considerations appear to be trumping a strictly scientific, evidence-based approach to the use of health claims promoted and preferred by industry.  As far as the Commission is concerned, there’s no sugar coating the truth that whereas glucose may indeed support normal physical activity, our diets are already sweet enough.

A short article about the Nutrition and Health Claims Regulation, as well as the General Court’s ruling in the context of the ongoing debate surrounding the use of controversial health claims, is contained in the News & Insights section of the McDowell Purcell website at the following link.

Author: James Gallagher