The European Court of Justice has ruled that alga Lithothamnium calcareum cannot be used in the production of food labeled as organic for the purposes of adding calcium. Natumi GmbH v. Land Nordrhein-Westfalen, No. C‑815/19 (E.C.J., entered April 29, 2021). Natumi GmbH manufactured a drink labeled as organic that is marketed as calcium-rich because of its red algae content, but the German state North Rhine-Westfalia imposed a fine on the company for adding non-edible algae to its products. "Natumi acknowledges that, since the use of calcium carbonate is prohibited for the calcium enrichment of organic products, many producers of soya-, rice- and cereal-based organic drinks add the Lithothamnium calcareum alga to them because it is naturally high in calcium. In addition, Natumi argues that that alga is a natural alternative to calcium and that its use for enriching organic food should be permitted," the court found. However, it stated, allowing the…
Category Archives European Courts
The Court of Justice of the European Union (CJEU) has prevented France from banning the marketing of cannabidiol (CBD) "lawfully produced in another Member State when it is extracted from the Cannabis sativa plant in its entirety and not solely from its fibre and seeds." In its ruling, CJEU found that "CBD cannot be classified as a 'narcotic drug,'" and although France is "not required to demonstrate that the dangerous property of CBD is identical to that of certain narcotic drugs," the country "must assess available scientific data in order to make sure that the real risk to public health alleged does not appear to be based on purely hypothetical considerations. A decision to prohibit the marketing of CBD, which indeed constitutes the most restrictive obstacle to trade in products lawfully manufactured and marketed in other Member States, can be adopted only if that risk appears sufficiently established."
The Supreme Court of Ireland has held that Subway's breads are subject to value-added tax (VAT) because they contain too much sugar to be considered a staple product. Under the country's VAT law, bread can contain up to 2% sugar in the flour to be classified as a staple product exempt from the tax; Subway's breads contain about 10% sugar in the flour for both the white and wholegrain varieties. Following the ruling, the breads will be taxed at 13.5% under the law. The Irish court reached the ruling following a challenge by a Subway franchisee alleging it should not have to pay the VAT.
The European Court of Justice has reportedly held that "balsamic" as a descriptor for vinegar is not reserved exclusively for producers in Modena, Italy. The case challenged a German vinegar producer's use of "Balsamico" and "Deutscher Balsamico." Although "Balsamic Vinegar from Modena" has been a geographic indication within the European Union for more than a decade, the court held, the rights to exclusive use did not extend to each word within the phrase. "The term 'aceto' [vinegar] is a common term and the term 'balsamico' [balsamic] is an adjective that is commonly used to refer to a vinegar with a bitter-sweet flavour," the court reportedly held.
The General Court of the European Union has confirmed that bisphenol A (BPA) is a substance of very high concern under the EU's REACH Regulation. PlasticsEurope, which represents four companies that sell BPA-related materials, challenged the categorization. The organization argued that the listing should exclude intermediate uses of BPA, including as an on-site isolated intermediate or a transported isolated intermediate. The General Court ruled that the uses were not exempt from the REACH Regulation, noting that "one of the objectives of the candidate list of substances is the establishment of information sharing obligations in respect of substances of very high concern within the supply chain and with consumers. The identification of a substance as a substance of very high concern serves to improve information for the public and professionals as to the risks and dangers incurred. The General Court therefore considers that the contested decision is consistent with the objective…
The European Court of Justice's Grand Chamber has ruled that halal beef cannot carry an EU organic logo if the cows were not stunned before they were slaughtered. Œuvre d’assistance aux bêtes d’abattoirs v. Ministre de l’Agriculture et de l’Alimentation, No. C-497/17 (E.C.J., entered February 26, 2019). The court compared an organic-labeling regulation requiring efforts to preserve animal welfare during the slaughtering process with a regulation allowing religious rituals during slaughter. "While it is true that [the regulation] permits the practice of ritual slaughter as part of which an animal may be killed without first being stunned, that form of slaughter, which is authorised only by way of derogation in the European Union and solely in order to ensure observance of the freedom of religion [], is insufficient to remove all of the animal’s pain, distress and suffering as effectively as slaughter with pre-stunning, which, in accordance with [the regulation],…
The European Court of Justice's Grand Chamber has determined that taste cannot be copyrighted in a lawsuit alleging copyright infringement of a cheese spread. Levola Hengelo BV v. Smilde Foods BV, No. C-310/17 (E.C.J., entered November 13, 2018). The court considered whether "taste" amounts to a work under copyright law. "[F]irst, the authorities responsible for ensuring that the exclusive rights inherent in copyright are protected must be able to identify, clearly and precisely, the subject matter so protected," the court stated. "The same is true for individuals, in particular economic operators, who must be able to identify, clearly and precisely, what is the subject matter of protection which third parties, especially competitors, enjoy. Secondly, the need to ensure that there is no element of subjectivity –– given that it is detrimental to legal certainty –– in the process of identifying the protected subject matter means that the latter must be…
The Court of Justice for the European Union has held that techniques to edit an organism’s genes without inserting foreign DNA—such as CRISPR/Cas9—result in the creation of genetically modified organisms (GMOs) subject to the EU GMO Directive. Confédération paysanne v. Premier ministre, No. C-528/16 (CJEU, entered July 25, 2018). The plaintiff, a French agricultural union, argued that French legislation exempting organisms produced with mutagenesis techniques such as CRISPR from GMO regulation conflicts with EU legislation governing GMOs. The court found that the mutagenesis techniques “alter the genetic material of an organism in a way that does not occur naturally, within the meaning of that provision. It follows that organisms obtained by means of techniques/methods of mutagenesis must be considered to be GMOs within the meaning of [the GMO Directive].”
The Court of Justice of the European Union (CJEU) has held that the name of German whisky Glen Buchenbach may mislead consumers into believing the product is manufactured in Scotland. Scotch Whisky Assoc. v. Klotz, No, C-44/17 (CJEU, entered June 7, 2018). CJEU clarified EU law on registered geographical indications, holding that an "indirect commercial use" can occur if the product at issue includes an element either identical or phonetically and visually similar to the registered indication but does not occur if the "element is liable to evoke in the relevant public some kind of association with the indication concerned or the geographical area relating thereto." CJEU remanded the case to German court for a final determination, which may consider a magistrate's preliminary finding that "'glen' does not have a sufficiently clear and direct link with the protected geographical indication in question."
An EU magistrate has returned a preliminary ruling in a dispute between the Scotch Whisky Association and a German manufacturer of a spirit called “Glen Buchenbach” that may hinder the trade group's claim of infringement of the registered geographical term “Scotch Whisky.” Scotch Whisky Ass’n, The Registered Office v. Klotz, No. C-44/17 (opinion of advocate general issued February 22, 2018). The trade group argues that the use of the Gaelic term “Glen” is both an indirect commercial use and an evocation of the registered geographical indication, amounting to a false and misleading indication of origin of the product. Noting that at least three whiskies produced outside of Scotland include "glen" as part of their names, the magistrate found that "‘Glen’ does not have a sufficiently clear and direct link with the protected geographical indication in question.” The indirect use of a registered geographical indication, the court found, “requires the disputed…
