Restrictions on Advertising with Nutrition and Health Claims Apply to Both Communications Addressed to Consumers and to Communications Addressed to HCPs

by King & Spalding
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The Court of Justice of the European Union (ECJ) held that the restrictions on promoting foodstuffs with nutrition and health claims not only apply to communications addressed to the general public but also to communications addressed exclusively to health care professionals (HCPs) (Judgment of the Court, July 14, 2016, Case C-1924/15).

Facts of the Case

As previously reported in our second edition of the International Food Law Gazette, the German company Innova Vital GmbH (Innova Vital) promoted its food supplement “Innova Muslin Vitamin D3” in a written document directed exclusively to named doctors. A German competition association challenged the use of certain claims contained in such written document, arguing that the claims do not comply with Regulation (EC) No 1924/2006 on nutrition and health claims made on foods (EU Health Claims Regulation).1

Innova Vital argued that the restrictions under the EU Health Claims Regulation apply only to commercial communications directed to consumers, but not to commercial communications directed exclusively to HCPs.

Since the question of whether the EU Health Claims Regulation applies both inside and outside of the professional sector had not yet been decided by the superior courts, Landgericht München I (District Court of Munich I), the court seized, referred the question to the ECJ.

Ruling of the ECJ

On July 14, 2016, the ECJ held that nutrition and health claims made in commercial communications addressed exclusively to HCPs fall within the scope of the EU Health Claims Regulation.

According to Art. 1(2) of the EU Health Claims Regulation, the regulation applies to nutrition and health claims if: (1) those claims are made in commercial communications; and (2) the foods in question are to be delivered as such to the final consumer. “Commercial communication” must be understood as covering, inter alia, a communication made in the form of food advertising, designed to promote, directly or indirectly, those foods. Such a communication may also take the form of an advertising document that food business operators address to HCPs, and that may serve to encourage such professionals to recommend the consumption or purchase of a specific food product to their patients.

The policy objectives unpinning the EU Health Claims Regulation support the interpretation that the regulation applies to commercial communications addressed exclusively to HCPs. The aim of the EU Health Claims Regulation is to ensure the effective functioning of the internal market while providing a high level of consumer protection. If nutritional or health claims directed to HCPs fell outside the scope of the EU Health Claims Regulation, such claims could be used to promote the consumption of food products without always being based on scientific evidence since it is neither possible nor reasonable for HCPs to evaluate each health claim prior to recommending a specific food product to a consumer. There would thus be a risk that food business operators would circumvent the obligations laid down by that regulation, addressing the final consumer through HCPs, in order that those professionals recommend their foods to that consumer.

Comments

The ruling of the ECJ provides clarity around the scope of the EU Health Claims Regulation. With its recognition that the restrictions on advertising with nutritional and health claims apply to commercial communications addressed exclusively to HCPs, the ECJ has reinforced the regulation’s aim of providing a high level of consumer protection, and has shown that advertising regulations have become much stricter following the passage of the EU Health Claims Regulation. Whereas in some EU Member States only health-related advertising towards the general public had been restricted under the previous regulations, under the EU Health Claims Regulation the same restrictions apply for advertising towards HCPs as for advertising towards consumers.

Thus, business operators advertising their foods must not only ensure that they comply with the EU Health Claims Regulation when advertising their foods to consumers, but also when issuing commercial communications exclusively to health care professionals.

1 Regulation (EC) No 1924/2006 of the European Parliament and of the Council of December 20, 2006 on nutrition and health claims made on foods; OJ 2006 L 404, p. 9, available at http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32006R1924&qid=1448443205719&from=EN.

 

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