EU law places strict controls on the use of nutrition and health claims on food labelling and in advertising. Under Regulation (EC) No 1924/2006 (the Regulation):

  • a nutrition claim is any claim which states, suggests or implies that a food has particular beneficial nutritional properties due to the energy and/or nutrients or other substances it provides or contains (e.g., “low fat” or “source of fibre”); and
  • a health claim is one which states, suggests or implies that a relationship exists between a food category, a food or one of its constituents and health (e.g., “Calcium is needed for the maintenance of normal teeth”).

Under the Regulation, it is only possible to use nutrition claims that are listed in the Annex to the Regulation, and/or health claims that have been authorised by the European Commission following a European Food Safety Authority scientific review. The only exception to these requirements is in relation to claims that are trade marks (or brand or “fancy” names) and general, non-specific health claims (e.g., “Good for you” or “Healthy”). These claims may be used without prior approval, provided they are accompanied by an approved claim (which, in the case of a general health claim, must be an authorised specific health claim, such as the calcium example given above).

Reference for a Preliminary Ruling

Different language versions of the Regulation have given rise to the potential for inconsistent interpretation by national courts of the “accompanied by” requirement, and to disparate application of the rules by national enforcement authorities. Unsurprisingly, given the rather restrictive requirements of the Regulations and differences in interpretation, questions have arisen about the interpretation of these rules. The latest is Case C-524/18, Dr. Willmar Schwabe. In the context of proceedings commenced in the German courts, a question arose regarding the meaning of the Regulation’s requirement that a general health claim must be “accompanied by” a specific authorised health claim. In particular, the German Court asked the European Court to provide its interpretation of the Regulation (known as a request for a preliminary ruling), asking whether it is sufficient for an accompanying specific health claim to be depicted on the back of a package, when the general health claim is displayed on the front of that package.

Advocate General Hogan delivered his Opinion on the matter on 12 September 2019. In short, his answer is “yes”. The Advocate General noted that:

“[…] the use of the word “accompany” in this context suggests that it is sufficient that the specific health claims required by [the Regulation] are prominently displayed elsewhere on the packaging. It is not necessary that the specific health claims are placed next to, or follow, or are otherwise immediately adjacent to the general health claims made in the present case on the front of the package. Nor does [the Regulation] contain any requirement that the general and the specific health claims be linked in some way, such as by an asterisk. It is instead sufficient that the specific health claims are given sufficient prominence such that they are accessible and can be read by the consumer.”

The next stage of the procedure is for the European Court to consider the case and deliver its judgment, which is likely to be in early 2020. There is no requirement that the Court follows the Opinion of the Advocate General (although in practice, it does so in the majority of cases).

Implications of the Advocate General’s Opinion

The decision of the European Court in this case will help to put in place a more uniform approach throughout the EU, thereby providing some certainty to food business operators with regard to how they may place claims on their marketed food products.

The Advocate General’s Opinion is significant in that it departs from guidelines adopted by the European Commission (the Guidelines). The Guidelines state that specific authorised health claims must be made next to or following the general health claim. This is the same approach taken by the UK’s Advertising Standards Authority, which has ruled that accompanying authorised health claims should appear next to or immediately following the general health claim (Kellogg Marketing and Sales Company (UK) Ltd t/a Kelloggs, 20 July 2016). In the Advocate General’s view, such a requirement “suggests that the specific health claim must be immediately adjacent to the general health claim”. This, the Advocate General contends, is inconsistent with the language of the Regulation, which “cannot be changed or amended or otherwise enlarged by reason of Guidelines such as these”. In the view of the Advocate General, the word “accompany” is somewhat broader and more expansive than the words “next to” or “following” as used in the Guidelines. This approach will be welcomed by many food business operators, who, if the Court follows this Opinion, would be granted more flexibility as to where to place their health claims.

While the Advocate General does not comment on the matter, it can be reasonably assumed that his interpretation of the words “accompanied by” extends also to the Regulation’s requirement that trade marks be “accompanied by” a related nutritional or health claim. If so, it may be possible for marketers to place their trade mark (or brand or “fancy” name) on one side of the product packaging, and the accompanying authorised claim on another.