EU Court of Justice bans non-bio seaweed in organic drinks. Judgment with a hole in it

0
13

The EU Court of Justice, in a ruling 29.4.21, banned the addition of Lithothamnium calcareum seaweed (a natural source of calcium) to organic beverages made from soybeans, cereals, and other plant matrices.

The use of a seaweed-qualified by the Court as a ‘non-organic’ ingredient-and its enrichment function would therefore not be allowed on foods labeled organic. (1)

But in the 16 years since the lawsuit was filed, EU rules have changed, and the judges in Luxembourg have not had the goodness to remember a crucial point. Algae can also be organic.

Organic soy beverage with calcium, the casus belli


Natumi GmbH
is an organic operator that has been producing beverages made from organic soybeans, oats, rice, and almonds for several years. Lithothamnium calcareum powder, a red coral seaweed, is diluted in some of these drinks. For the specific purpose of supplementing the nutritional profiles of such foods, which are often consumed as an alternative to milk. (2) In fact, seaweed sediments contain calcium carbonate and magnesium carbonate.

Soja-Drink-Calcium-an organic drink from Natumi GmbH bearing the nutrition claimswith calcium‘, ‘with calcium-rich seaweed‘ and ‘with high-quality calcium derived from the seaweed Lithothamnium‘ on the label was being challenged, however, by authorities in North Rhine-Westphalia. In 2005, at the dawn of modern European law, the Teutonic Land was indeed reporting violations of the prohibitions of:

– Use ‘calcium carbonate’ to fortify organic products. Thus qualifying, among other things, the powder of a seaweed on a par with an industrial chemical, (3)

– boast the presence of the micronutrient ‘calcium’ in labeling and advertising. Although the European regulation on Nutrition and Health Claims was already on the horizon. (4)

Preliminary questions


Bundesverwaltungsgericht
– the Federal Administrative Court, the court of legitimacy called to decide the 2005 case (in that Germany is calling for justice reforms in other member states) – decided to stay the proceedings and refer three questions to the EU Court of Justice for a preliminary ruling:

1) Whether Lithothamnium calcareum seaweed can be used as an ingredient in organic food processing,

(2) if the answer is favorable, whether the use of dead seaweed is also allowed,

3) and thus, whether ‘a product containing Lithothamnium calcareum (dead) as an ingredient and labeled ‘organic’ can be labeled ‘with calcium,’ ‘with calcium-rich seaweed,‘ or ‘with high-quality calcium derived from Lithothamnium seaweed.

Pride and Prejudice

‘It is necessary to remember that, in accordance with settled case law of the Court, for the purposes of interpreting a provision of Union law, account must be taken not only of its letter, but also of its context and of the purposes pursued by the legislation of which it forms part (see, in particular, Judgment of September 19, 2018, González Castro, C-41/17, EU:C:2018:736, paragraph 39, and case law cited therein).’ (1)

The European Court of Justice (ECJ), on these proud premises, denied the possibility of using the powder obtained from seaweed sediment (after cleaning, drying and grinding)-to fortify organic foods with calcium. (4) Citing the following reasons:

Lithothamnium calcareum powder would qualify as a ‘non-organic ingredient of agricultural origin.’

– the use of a non-organic ingredient of agricultural origin in organic food is allowed only under certain conditions. (5)

Judgment with a hole in it

The impact of the European Court of Justice ‘s ruling on established food production is on the face of it onerous, as it affects established and useful production processes for supplementing organic plant foods with a natural source of calcium derived from a seaweed, among other things recognized as a traditional food.

The hole in the ruling is gross, however; none of the supreme jurists considered the existence in European law of organic seaweed, whether wild or cultivated. Activities to be carried out in areas ‘suitable from the point of view of health‘ and ‘of high ecological status as defined by Directive 2000/60/EC, or of equivalent quality (…)‘. (6)

Organic algae for organic food

The integration of organic plant raw materials with algae and microalgae is one of the most promising areas to address food security while fully respecting ecosystems. In line with the
Sustainable Development Goals
(SDGs), the
EU Green Deal
, the EU Farm to Fork strategies and
Biodiversity 2030
.

The only caution is to ensure that the seaweed is sourced from certified organic operators. Nothing less and nothing more adds the ‘sentence with the hole’ to the rules that have been in place in Europe since as far back as 2007.

Dario Dongo

Notes

(1) EU Court of Justice. Case C-815/19, Natumi GmbH v. Land Nordrhein-Westfalen. (North Rhine-Westphalia Lander). With the intervention of Vertreter des Bundesinteresses beim Bundesverwaltungsgericht (representative of the federal interest at the Federal Administrative Court). https://curia.europa.eu/juris/document/document.jsf;jsessionid=26518BF47E992777FB26FC91B84E3386?text=&docid=240544&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1&cid=6685340

(2) Marta Strinati. Vegetable beverages, 330 products compared with milk. Scientific study. GIFT (Great Italian Food Trade). 5.6.20, https://www.greatitalianfoodtrade.it/consum-attori/bevande-vegetali-330-prodotti-a-raffronto-con-il-latte-studio-scientifico

(3) Calcium carbonate-extracted in mines or quarries from certain rocks (calcite, dolomite, aragonite, siderite)-is subjected to industrial chemical purification processes

(4) The proposedNutrition and Health Claims (NHC) regulation was adopted by the European Commission on 7/16/03 (see https://bit.ly/3utQwiW). The final text, reg. EC 1924/06, was followed by reg. EC 1925/06 (so-called ADNUT, Addition of Nutrients), on the so-called fortification of foods

(5) The use of non-organic ingredients in the production of processed organic food was and still is limited to cases where it is impossible, without resorting to such ingredients, to produce or preserve such food or to meet dietary requirements. Reg. EU 2018/848 (repealing Reg. 834/07 cited in the judgment) clarified and strengthened these limits (see Articles 7.1.b, 24.2.b, 24.4, 24.9), as the judgment itself notes (para. 71)

(6) Reg. 2018/848, Annex II, Part III. Production standards for seaweed and aquaculture animals.

+ posts

Dario Dongo, lawyer and journalist, PhD in international food law, founder of WIISE (FARE - GIFT - Food Times) and Égalité.