ENSA reactive statement – Opinion of the Advocate General on the use of the algae lithothamnium in organic products

The Advocate General of the European Court of Justice shared today his Opinion on a case relating to the use of non-organic algae lithothamnium in organic plant-based drinks (C-815/19). The final ruling of the European Court of Justice is expected in Spring 2021.

The red algae lithothamnium is an algae rich in calcium and magnesium, which is used as an ingredient in organic plant-based drinks. Like all organic products, organic plant-based drinks cannot be fortified with additives and minerals such as calcium carbonate. For this reason, natural ingredients rich in calcium such as lithothamnium are used instead to offer consumers plant-based drinks which are meeting their expectations in terms of nutrient profile, namely similar nutritional composition as non-organic products. It is a similar approach to using oat in order to obtain a higher fiber content in the final product e.g. a muesli.

We deeply regret that the Advocate General did not recognise the difference between the addition of calcium carbonate derived from lithothamnium (i.e. the addition of a mineral substance which is prohibited in organic products) and the use of a lithothamnium as an ingredient of agricultural origin naturally rich in calcium, the use of which should be allowed under the provisions of the EU Organic Regulation, even if non-organic. We hope the Court in its final ruling will review these arguments in more details than the Advocate General and make the difference clear.

Organic products represent about 25% of the plant-based drinks market. If this interpretation is maintained, there will be only calcium-free organic options on the market in the future, at odds with national health authorities recommending the consumption of calcium-rich plant-based products. Consumers would be deprived from nutritionally relevant organic plant-based options, and likely to turn towards conventional products. This would mean that the market would shift towards conventional plant-based drinks, which is the opposite direction announced by the European Commission in its Farm to Fork Strategy which aims to increase organic production and consumption.