“There has been a lot hype about this claim but it won’t affect the industry because the European Food Safety Authority (EFSA) has already done the work in this area by recommending that men drink 2.5L per day and women 2L per day,” European Federation of Bottled Water (EFBW) secretary general, Patricia Fosselard told this publication.
“This claim rejection won’t affect the industry at all.”
The rejected, article 14, disease risk reduction claim sought to state: “The regular consumption of significant amounts of water can reduce the risk of development of dehydration and of concomitant decrease of performance.”
The claim, submitted by professors Moritz Hagenmeyer and Andreas Hahn of the Institute for Food Science and Human Nutrition of Hanover Leibniz University, drew a lot of attention because EFSA’s health claims panel rejected its seemingly obvious proposition that water can reduce dehydration.
But it was clear in the application that the professors were as interested in testing the boundaries of what could be claimed under the EU nutrition and health claims regulation (NHCR), as winning a claim.
Time for a legal challenge?
As they did at the time of the EFSA negative opinion in February, the professors reiterated this week that they are considering a challenge of the ruling in the European Court of Justice (ECJ).
“It is time,” professor Hagenmeyer told NutraIngredients this morning, but added: “The question is: Do we have a chance to succeed? Common sense might say we would have to win. But we are unsure how much common sense has found its way into the law and we do not know whether the ECJ judges can be persuaded to find it.”
Claims, articles, risk factors, disease
In rejecting the claim, EFSA’s Panel on Dietetic Products, Nutrition and Allergies (NDA) found dehydration was a not a disease risk reduction factor.
Of that conclusion, Brussels-based food lawyer, Sebastián Romero Melchor, from Food Law Consultants observed:“The problem with this claim was that the NDA considered the risk factors of the disease – dehydration – identified by Moritz as ‘water loss in tissues’ and ‘reduced water content in tissues’ as ‘measures of the disease’ itself, and not risk factors. Therefore, the claim was considered medicinal.”
Fosselard noted this would not have been the case if the claim had been submitted under the general function, article 13.1 list.
“There is a lot of misunderstanding about this claim rejection but fundamentally it was submitted under the wrong article,” she said in discounting the regulation-testing intent of professors Hagenmeyer and Hahn.
The member states themselves recognised this element of the submission in stating: “An additional problem with this application is that it was not submitted to a member state by a food business operator. It was agreed that, overall, this is not a valid application.”
But Melchor noted the NDA’s disease risk reduction classifications had not always been applied consistently, noting it had, “positively assessed clearly medicinal claims such as 'xylitol chewing gum/pastilles might reduce the risk of development of caries'.”
“This can certainly be the object of an appeal and I will be interested in hearing what the ECJ has to say.”
Water and physical, cognitive health
Fosselard said her federation – which represents 29 national bottled water associations in Europe – was more concerned with two positive, article 13 claims linking water consumption to physical-mental health and thermoregulation that were set to enter the register of approved claims in the first quarter of 2012.
She said the EFBW was giving as much input as possible to EC and member state discussions to ensure the wording of the approved claims was as user-friendly as possible. The ‘maintenance of normal physical and cognitive functions’ was the most interesting to the industry, she said.
“Maybe it hasn’t been so well known outside of scientific circles that you need water to perform well physically and mentally so this claim will help us make that link known to the public.”
Her industry was lobbying to have changed the rather technical term ‘thermoregulation’ for the final approved claim.
“The EC always has understandable claims in mind so we are hopeful the analysis will lead to something useful to the industry and the public.”