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I. Introduction
Recently the Republic of Lithuania and the Republic of Latvia passed laws prohibiting the sale of non-alcoholic energy drinks (consisting primarily of water, sugar, glucuronolactone, caffeine and taurine as well as vitamins) to minors under the age of r8 if they contain more than r5omg/l of caffeine. In Germany similar age restrictions were considered.
It shall not be suggested that national provisions prohibiting the sale of certain foods and stimulants, like alcoholic beverages or tobacco, cannot be justified on public health grounds. However, it seems to be problematic to take the same approach when it comes to energy drinks since the health risks arising from those types of products are different. Subsequently, it shall be analysed whether a national prohibition to sell energy drinks with a certain minimum caffeine content to minors is reconcilable with EU law. So far, the question whether national laws prohibiting the sale of food to certain groups of society constitute a breach of Art 34 TFEIJ has not been dealt with in depth which is why this topic represents an interesting issue from a legal perspective.
II. Energy Drinks and Secondary EU Food Law
The two EIJ Member States that have introduced an age restriction for energy drinks with a caffeine content exceeding r50 mg/1 classify those types of beverages as potentially harmful to the health of humans. However, Article 14 Paragraph 9 of Basic Regulation (EC) No ry8/2002 on the general principles of food law states that foodstuffs for which no specific regulations under EU food law exist are regarded as safe if they are marketed in the Member States and if they comply with the provisions of their relevant food laws. This complies with the principle of mutual recognition1. Most of the affected energy drinks are in line with the food laws of their EU country of origin and all other Member States and are lawfully marketed. Therefore, they are regarded as safe according to Article 14 Paragraph 9 of Basic Regulation (EC) No r78/2002. To the extent that single Member States want to disprove this assumption and apply a ban on the sale of such energy drinks on the grounds of presumed harmfulness to the health of minors, those national regulations must be in...