Check of proportionality in a case, where principles enshrined in the Charter (consumer protection, Article 38 and protection of health, Article 35) are aged against rights guaranteed (freedom of expression and information, Article 11 and freedom to conduct a business, Articel 16)
Neptune Distribution sells and distributes the natural sparkling mineral waters denominated ‘Saint-Yorre’ and ‘Vichy Célestins’
By decision of 5 February 2009, the Head of the Departmental Unit of Allier of the Regional Directorate for Competition, Consumption and Suppression of Fraud for the Auvergne served formal notices on Neptune Distribution to remove the following indications from labels and advertising for those waters:
– ‘The sodium in St-Yorre is essentially sodium bicarbonate. St-Yorre contains only 0.53 g of salt (or sodium chloride) per litre, that is to say less than a litre of milk!!!’;
– ‘Salt and sodium must not be confused — the sodium in Vichy Célestins is essentially from sodium bicarbonate. Above all, it must not be confused with table salt (sodium chloride). Vichy Célestins contains only 0.39 g of salt per litre or 2 to 3 times less than is contained in a litre of milk!’, and generally,
– any statement leading the consumer to believe that the waters in question are low or very low in salt or in sodium.
The referring court states that the response to be given to that plea depends on whether the annex to Regulation No 1924/2006 provides, as a basis for calculation of the ‘equivalent value for salt’ of the amount of sodium present in a foodstuff, only that amount which, associated with chloride ions, forms sodium chloride or table salt or the total amount of sodium contained in that foodstuff in all its forms.
In the latter case, water rich in sodium bicarbonate cannot be regarded as being ‘low in sodium or salt’, even though it is low or very low in sodium chloride. Thus, the distributor of a natural mineral water rich in sodium bicarbonate cannot display on its labels and in its advertising slogans an indication, even if correct, relating to the low salt or sodium chloride content, since that wording is likely to mislead the purchaser as to the total sodium content of the mineral water concerned.
Thus, according to the referring court, there is uncertainty as to the equivalence, in terms of risks to the health of consumers, between the consumption of water high in sodium bicarbonate and water high in sodium chloride. Therefore, it must be determined whether the restrictions on the freedom of expression and advertising information and Neptune Distribution’s freedom to conduct a business are necessary and proportionate, in particular, in the light of the requirement to ensure a high level of protection for the health of consumers.
The CJEU was asked to answer the following questions: (1) Whether the total amount of sodium has to be taken into account; and (2) Whether provisions prohibiting certain claims are valid in light of Article 11(1) (freedom of expression and information) and Article 16 (freedom to conduct a business) of the Charter
The Court held that, in order to avoid misleading consumers, packaging, labels and advertising for natural mineral waters must take into account the total amount of sodium present in the natural mineral waters- whatever its chemical form. The statements “low in sodium/salt” and “suitable for a low-sodium diet” may only be used provided that the total sodium content is less than 20 mg/l because EU legislation does not differentiate according to the chemical compounds of sodium.
With regards the restriction of fundamental rights, the Court noted that the freedom of expression and information and the freedom to conduct a business are not absolute rights. These rights can be limited by the Union legislators under certain circumstances (restrictions must be laid down in law, respect the essence of those freedoms, be necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others).
Provisions which regulate the use statements on the beneficial properties of mineral waters do not violate the essence of the freedom of expression and information and the freedom to conduct a business. Such provisions are justified and proportionate to attain the objectives of: