EU Court Confirms Legality of Health Claims

EU Court confirms legality of health claims

© Sebastián Romero Melchor
First published in World Food Regulation Review, December 2004, pages 19-20
All rights reserved

A national legislation prohibiting references to slimming properties and to medical recommendations, attestations, declarations or statements of approval in the labeling and presentation of foodstuffs is incompatible with EU rules on labeling of foodstuffs, the European Court of Justice (“ECJ”) said in a recent ruling.

The highest European Court has thus confirmed its landmark case law developed in two rulings delivered last year, according to which labeling of foodstuffs containing references to health which are not misleading must be regarded as complying with EU rules.

In the absence of a Community framework on health claims, it is up to the Member States to regulate their use in foodstuffs. This fact originates disparities in their national legislations, which, in turn, causes many obstacles to the free movement of foodstuffs within the EU.

In Case C-239/02, Belgian coffee firm Douwe Egberts NV tried to block the marketing in of a product called DynaSvelte Café on grounds of irregularities in the advertising and labelling of foodstuffs.

In particular, Douwe Egberts maintained that statements on the jar, packaging and in the instructions for use, namely “the absolute breakthrough in weight control”, “slimming”, “better weight control”, “slowing down of excess fat deposits” and “the formula patented in the United States by Dr Ann de Wees Allen, in association with the Glycemia Research Institute”, infringed various national legislative provisions governing the advertising and labelling of foodstuffs.

Considering that the outcome of the dispute depended on the interpretation of Community law and, the national judge decided to stay the proceedings and refer the case to the ECJ for a preliminary ruling.

The court stated at the outset that EU labelling rules (in particular Directive 2000/13) prohibits all statements relating to human diseases, regardless of whether or not they are liable to mislead the consumer, as well as statements which, although not containing any reference to diseases but referring rather to health, for example, prove to be misleading and that Member States may not forbid trade in foodstuffs which comply with the rules laid down in the Directive.

Therefore, foodstuffs the labelling of which contains references to health which are not misleading must be regarded as complying with EU rules, since Member States are not entitled to prohibit their marketing on grounds relating to the possible irregularity of that labelling.

Since the Belgian law absolutely precluded references to slimming and to medical recommendations, attestations, declarations or statements of approval, regardless of whether they could mislead the consumer and provided that they do not refer to human diseases, the Court said this prohibition was disproportionate for the alleged objective pursued, namely the protection of human health.

The Court further stated that there are less restrictive measures for the prevention of such residual risks to health, such as, for example, an obligation on the manufacturer or distributor of the product in question, in the event of any uncertainty, to furnish evidence of the accuracy of the facts mentioned on the labelling.

“An absolute prohibition on particulars appearing on the labelling of certain foodstuffs relating to slimming or medical recommendations without an examination on a case-by-case basis of whether they are in fact apt to mislead the buyer would mean that foodstuffs bearing those indications would not be able to be freely marketed in Belgium even where those statements are not fraudulent,” the court concluded.

Finally, as regards the possible difficulty of establishing in certain cases the fraudulent nature of a certain statement, the Court recalled that it is for the national courts in all doubtful situations to form a view, taking into account the presumed expectations of “an average consumer who is reasonably well informed and reasonably observant and circumspect”.

Landmark case law confirmed

The ruling came only months after the Court slammed an Austrian outright prohibition, subject to prior authorization, of all health-related information on the labeling and presentation of foodstuffs (Case C-221/00).

In a related case, the Court upheld claims such as “for protection of the cell membrane from free radicals”, “important for the functioning of many enzymes”, “important as a building block for bones and teeth” and “regulation of the fluid balance (bladder functioning)” (Joined cases C-421/00, C-426/00 and C-16/01).

These three rulings are all the more important in the face of incoming legislation at EU level on the use of health claims in the labeling and advertising of foods, which will make it compulsory for food producers to have their claims scrutinized before going to the market.

The proposed rules would ban, among others, claims in the labeling and advertising of foodstuffs which relate to slimming and weight-reduction, claims of recommendation by medical professionals, claims about general wellbeing or psychological or behavioral functions, or claims on alcoholic beverages with alcohol content of 1.2 per cent and above.

With hundreds of proposed amendments, many consider that the proposal for the use of health claims will not see the light at least until 2007. In the meanwhile, the ECJ has paved the way for the industry to use health-related claims.