European Court of Justice: Addition of the algae lithothamnium calcareum to increase the calcium content of organic products is unallowed

Redeker Sellner Dahs wins case for the NRW Regional Office for Nature Conservation, the Environment and Consumer Protection

Bonn, 12 May 2021. ) In a judgment rendered on 29 April 2021 (C‑815/19), the ECJ ruled that the alga lithothamnium calcareum, which consists mainly of calcium and magnesium carbonate, may not be used as an additive in the processing of organic foodstuffs to enrich them with calcium; organic foodstuffs enriched with calcium may not be marketed with the label of an organic product.

The subject of the proceedings was a soy drink produced by a German company and marketed as an organic product. Since the use of calcium carbonate to enrich organic products with calcium is prohibited, ground calcium sediments from the algae lithothamnium calcareum had been added to the soy drink – ultimately with the aim of bringing the calcium content of the soy drink up to the level of animal milk products.

The skeletons of dead algae containing calcium sediments are mined off the coast of Iceland. The ground sediments are used in food production because they have a high calcium content. The NRW Regional Agency for Nature Conservation, Environment and Consumer Protection (LANUV) had initiated fine proceedings against the manufacturer of the organic soy drink because of the addition of the algae and references made to the drink’s calcium content. The manufacturer then filed an action for a declaratory judgement to clarify the issue of whether the addition of the algae is permissible in organic products. It was unsuccessful in the first two court instances. NRW Superior Administrative Court ruled that the powder from the algae may not be added to organic products, as it is not obtained from an edible algae. Moreover, the use of the powder obtained from the dead algae is not a substance of agricultural origin, but rather a mineral substance. The addition of minerals to organic products for nutritional reasons is only permissible, according to the Court, if it is prescribed by law, and there is no legal provision allowing calcium supplements to be added to soy drinks. The German Federal Administrative Court petitioned the ECJ for a preliminary ruling on the interpretation of relevant EU law, submitting to it, among other things, the question of whether the algae lithothamnium calcareum may be used as an ingredient in the processing of organic food.

The ECJ answered this question with its judgment and states that Union law precludes the use of a powder obtained from the purified, dried and ground sediments of the algae lithothamnium calcareum, which is a non‑​organic ingredient of agricultural origin, in the processing of organic foodstuffs such as organic rice and soy drinks to fortify them with calcium. The use of a non‑​organic ingredient of agricultural origin in organic food is only permitted under certain conditions. Union law requires inter alia that, without the respective ingredient, these foods cannot be produced or preserved or that nutritional requirements laid down on the basis of Union law cannot be met. The ECJ does not deem this requirement to be fulfilled here. A final assessment must now be performed by the German Federal Administrative Court.

The ECJ further underscores in its ruling that the intended use of a substance is of decisive importance. In the case at hand, the calcium‑​rich powder extracted from the algae was added to increase the calcium content of the soy drink. Since the addition of calcium to organic products is not permitted under EU law, allowing the powder to be used in the processing of organic food for the purpose of calcium fortification would be tantamount to circumventing the current ban.

The decision is of an importance above and beyond this specific case because it establishes that in cases of doubt, the intended use can ultimately be decisive in deciding whether the addition of a certain substance in organic products is permissible or not.

Acting as counsel for LANUV in the proceedings before the ECJ were the lawyers Prof Dr Alexander Schink and Julian Ley of the law firm Redeker Sellner Dahs.

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