26 June, 2020

Judgment of the Court of Justice of the European Union on healthy claims

Regulation of healthy statements

The Regulation (EC) 1924/2006 of the European Parliament and of the Council of 20 December 2006 on nutrition and health claims in foods (hereinafter Regulation 1924/2006) aims to harmonise the laws, regulations or administrative provisions of the Member States relating to nutrition and health claims. The purpose of this rule is to ensure the effective functioning of the internal market while providing a high level of consumer protection.

Regulation 1924/2006 states in Article 2.2.1 that a declaration means any message or representation which is not mandatory under Community or national law, including any form of pictorial, graphic or symbolic representation, which affirms, suggests or suggests that a food has specific characteristics. There are two types of claims: “Nutrition and health claims.

Concept of healthy statements

A nutritional declaration, in accordance with Article 2.2.4 of Regulation 1924/2006, is any statement which affirms, suggests or implies that a food has specific beneficial nutritional properties for the purpose of supplying energy, nutrients or other substances. Only authorised nutritional claims are permitted and provided that they comply with the conditions laid down. The Judgment below, refers to these statements as specific healthy statements

Health claims, regulated by Article 2.2.5, are any claim that states, suggests or implies that a relationship exists between a category of food, a food or one of its compounds, and health. Only those that are authorized or in evaluation are permitted. The Judgment below, refers to these statements as specific healthy statements

On the other hand, a general statement is that reference to general and non-specific benefits of the nutrient or food for general good health or health-related well-being. In this regard, account should be taken of the provisions of Implementing Decision 2013/63/EC, in relation to “Reference to general and non-specific benefits (Article 10(3)”:

“(…) For this reason, when we refer to the general, non-specific health benefits, it is necessary to accompany these references with a specific health claim from the lists of health claims permitted in the Union register. For the purposes of the Regulation, the specific health claim accompanying the indication of general and non-specific health benefits should be included ‘next to’ or ‘after’ that indication.”

Therefore, general health claims can and should be accompanied by property-specific healthy statements from permitted health claim lists.

Judgment of the Court of Justice of the European Union on healthy statements

The Court of Justice of the European Union (CJEU) has given a judgment in which it ruled on two questions referred by a German court for a preliminary ruling.

The first question raised was whether: “Article 10(3) of Regulation No 1924/2006 is to be interpreted as meaning that the requirement that any reference to the general and non-specific benefits of a nutrient or food must be accompanied by a specific health claim appearing in the lists provided for in Article 13 or 14 of that Regulation is satisfied where the packaging of a food supplement contains on its front side, a reference to the general and non-specific health benefits of a nutrient or food, while the specific health claim intended to accompany that reference appears only on the back side of the package and there is no explicit reference, such as an asterisk, between the two.”

Article 10(3) of Regulation 1924/2006 provides:

“Reference to general and non-specific benefits of the nutrient or food for general good health or health welfare may be made only if it is accompanied by a specific health claim included in the lists provided for in Article 13 or 14.”

As this provision points out, any reference to the general and non-specific benefits of a nutrient or food must be accompanied by a specific health claim included in the lists referred to in Article 13 or 14 of Regulation 1924/2006.

So where and how should these references appear on a package? The CJEU states that this obligation is not met when the packaging of a food supplement contains, on its front face, a reference to the general and non-specific health benefits of a nutrient or food, whereas the specific health benefits statement intended to accompany it only appears on the back side of that packaging and there is no explicit reference, like an asterisk, between the two.

That is, the front face of the packaging should appearany reference to the general and non-specific benefits of a nutrient or food, accompanied by a specific health claim. But a reference to the general and non-specific health benefits of a nutrient or food can be allowed on the front face, and the declaration of specific healthy benefits is made on the front face, if an explicit remission is made between the two sides, with an asterisk, for example.

The judgment of the CJEU of 30 January 2020 states:

“Therefore, the visual dimension of the requirement of ‘accompaniment’, pursuant to Article 10(3) of Regulation No 1924/2006, reference must be made by the average consumer, normally informed and reasonably attentive, of a direct visual link between the reference to general and non-specific benefits for good health and the specific health claim, which requires, in principle, spatial proximity or immediate closeness between the reference and the declaration of health.

However, in the specific event that specific health claims are so numerous or extensive that they cannot appear entirely on the same side of the packaging as the reference they are intended to support, the requirement of a direct visual link could be considered exceptionally satisfied by an explicit reference, such as an asterisk, where the latter clearly and perfectly understandably understands the consumer , the correspondence of content, on the spatial plane, between health claims and the reference.”

The second question on which the CJEU had to rule was: “(…) whether references to the general and non-specific benefits of a nutrient or food for general good health or health-related well-being, in accordance with Article 10(3) of Regulation No 1924/2006, must be based on scientific evidence within the meaning of Articles 5(1)(a) and 6(1) of that Regulation.”

Article 5(a) of Regulation 1924/2006 states:

“The use of nutrition and health claims shall be authorised only if the following conditions are met:

1. it has been shown that the presence, absence or reduced content, in a food or category of food, of a nutrient or other substance for which the declaration is made has a beneficial nutritional or physiological effect, established by generally accepted scientific data;”

Article 6(1) of that European rule states:

“Nutrition and health claims should be based on and substantiated by generally accepted scientific data.”

Thus, according to these precepts, health claims should have scientific value. But the CJEU was questioned as to how this requirement is met.

The CJEU has indicated that it is sufficient for healthy references to be accompanied by specific health claims, included in the lists referred to in Articles 13 or 14 of Regulation 1924/2006.

In other words, if these health claims appear in the lists provided for in Article 13 or 14, the legal requirements are met.

Please note that the European Union has complied with Article 20.1 of Regulation 1924/2006 (‘The Commission shall establish and maintain a Community register of nutrition and health claims relating to food, hereinafter referred to as ‘the register’.), and has established such records. If the nutritional declaration is included in these lists or records, its scientific value is presumed and complied with Regulation 1924/2006.