The Wall Street Journal law blog recently published an interesting article titled, EU Court: Don’t Call Wine “Easily Digestible,” discussing a court case decided by the Court of Justice of the European Union (“CJEU”). At issue was whether the German winemakers’ cooperative, Deutsches Weintor, can label its wines with a claim that the wine is “easily digestible.” Accordingly, the CJEU ruled that the German wine cooperative cannot label its wines with a claim that wine is “easily digestible.” While the CJEU recognized an increasing number of foods and beverages labeled with nutrition and health claims, it further contended that at risk is the protection of consumers and the assurance that products in the market are safe and adequately labeled. The CJEU indicated that health claims for alcohol beverages are dangerous and thus concluded that producers of alcohol beverages cannot make any claims relating to such, even if true.
In its ruling, the court interpreted Article 2(2)(5) and the first subparagraph of Article 4(3) of Regulation (EC) No. 1924/2006 of the European Parliament and of the Council of 20 December 2006 on nutrition and health claims made on foods. (See OJ 2006 L 404.) Article 2(2)(5) defines a health claim to mean “any claim that states, suggests or implies that a relationship exists between a food category, a food or one of its constituents and health.” (Id.) Article 4(3) maintains that beverages containing more than 1.2% alcohol by volume shall not bear health claims (as defined in Article 2(2)(5)). (Id.)
In this case, the CJEU construed the term “easily digestible” to be a health claim within the meaning of Article 2(2)(5) of Regulation No. 1924/2006. The German winegrowers argued that the term is not a health claim but is instead a claim of general well-being and that the Regulation does not apply to descriptions that are traditionally used on foods and beverages to imply an affect on well-being. Accordingly, the winegrowers had reduced the amount of acidity of the wines in question by means of a special process of acidity reduction. The CJEU, however, found that even if the phrase could be regarded as “substantively inherently correct in that it indicates the acidity levels, the fact remains that it is incomplete.” (See Case C-544/10.) The court maintained that the phrase “easily digestible” emphasizes “a certain quality that facilitates digestion, but is silent as to the fact that, regardless of a sound digestion, the dangers inherent in the consumption of alcohol beverages are not in any way removed, or even limited.” (See Case C-544/10.) Essentially, the court believed that the phrase “easily digestible,” while truthful, highlights only the digestive nature of the product without affording attention to other potentially detrimental aspects of alcohol consumption (in particular quantities and frequencies). The court concluded that, without further reference, prohibiting such claims on alcohol labels is warranted when balanced against the inherent need to protect consumer health and to encourage safe and adequate labeling of alcohol beverages.
During my read of the article and the ruling, I was intrinsically compelled to compare this regulation to those I’ve encountered in my studies of American wine law. Labeling of wine is governed by 27 CFR Part 4, and health statements are specifically governed by Section 4.39(h) et seq. The CFR defines a health-related statement—in shortened form—as “any statement related to health . . . and includes statements of a curative or therapeutic nature that, expressly or by implication, suggest a relationship between the consumption of alcohol, wine, or any substance found within the wine, and health benefits or effects on health.” (See 24 CFR § 4.39(h).) Generally, health-related statements that are untrue or “tend to create a misleading impression as to the effects on health of alcohol consumption” are not allowed on labels. The TTB may approve of some specific health claims on the labels of a wine, but the TTB also requires that the claim be truthful and properly supported by scientific or medical evidence. While this bar is generally high to meet, it presumably offers somewhat more flexibility than the standards held out by the recent European ruling. (As mentioned, the CJEU would not allow truthful labels on alcohol beverages if the statement tended to have any health claim.) In practice, however, this most likely proves otherwise; the TTB does regulate wine labels and health-related claims placed on such to a very high degree. In fact, it is unlikely the TTB would approve a wine label containing the same phrase as the German winemakers—“easily digestive”—for the same or similar reasons.