Nutritional and health claims made on foods: compliance can be an asterisk away

The facts that gave rise to the main dispute relate to claims made on the label of a food supplement (called Doppelherz® aktiv Ginkgo + B -Vitamine + Cholin) marketed by Queisser.

The back of the packaging of Queisser’s food supplement included a number of elements of different sizes, colors and fonts, including the following claim: "B vitamins and zinc for the brain, nerves, concentration and memory." A more detailed description of the ingredients and their effects, and specific health claims could be found on the reverse side of the packaging.

Schwabe lodged an action to see Queisser Pharma be ordered to cease promoting the food supplement unless the specific claims would also appear on the front of the packaging.

In the context of that dispute, the Federal Court of Justice of Germany referred a question for a preliminary ruling to the CJEU, in relation to the interpretation of Article 10(3) of the Regulation 1924/2006 on nutrition and health claims made on foods.

According to this provision, “reference to general, non-specific benefits of the nutrient or food for overall good health or health-related well-being may only be made if accompanied by a specific health claim included in the lists provided for in Article 13 or 14.” The cross-referred Articles 13 and 14 establish the requirements applicable to health claims on foods, which vary depending on whether the claims refer – or not – to reduction of disease risk and to children's development and health.

The core issue of the case that the CJEU had to rule upon was to determine whether the requirement established by Article 10 (3) of the aforementioned Regulation is fulfilled in case the packaging of a food supplement contains a reference to general, non-specific health benefits of a nutrient or food on the front of the package, whereas the specific health claim(s) intended to accompany that reference appear(s) only on the back of that packaging.

In line with its settled case-law, the CJEU proceeded at first to an in-depth analysis of the wording of Article 10 (3) of the Regulation, the context in which it occurs, and the objectives pursued by the rules of which it is part.

The Court considered that the requirement of ‘accompanying’, within the meaning of Article 10(3), must be interpreted as requiring not only that the specific health claim should specify the content of the health claim worded in general terms, but also that the location of those two claims on the packaging of the product must enable an average consumer who is reasonably well informed and reasonably attentive and circumspect to understand the link between those claims.

As a result, the concept of ‘accompanying’ within the meaning of that article, must be interpreted as including both a “substantive” and a “visual” dimension. What counts is the immediate perception by the average consumer, reasonably well informed and reasonably attentive and circumspect, of a direct visual link between the reference to general, non-specific health benefits and the specific health claim, which requires, in principle, spatial proximity or immediate vicinity between the reference and the claim.

It is worth noting is that Advocate-General Hogan retained, in its opinion, less stringent requirements than those set by the CJEU in its judgment. Indeed, in his opinion, he considered that the affixing of general health claims on the front of the package and specific health claims on the back of the package were sufficient to meet the requirement defined by Article 10(3) of the Nutrition and Health Claims Regulations.

This judgment is of utmost interest for all active players in the food sector, and not only for the food supplements market, as it certainly illustrates the Court's willingness to set the highest possible standards and requirements in preventing and combating misleading information and advertising practices towards consumers.

The full text of the judgment of the Court of Justice, dated of 30 January 2020, can be found here.