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In promoting foods, only the consumer’s interests count

The same requirements for nutrition claims and health claims prevail in communications targeted to specialists as in messages aimed at consumers. Consumer protection is the overriding priority.

Verband Sozialer Wettbewerb e.V. v Innova Vital GmbH (Case C-19/15), judgment of the Court of Justice of 14 July 2016

There is a growing body of case law from the Court of Justice of the European Union on consumer protection in the context of nutrition claims and health claims on food products and in promotional materials. For the most part this is due to requests for preliminary rulings by the Court of Justice, which demonstrates that national courts have significant doubts when interpreting EU food law.

It must be admitted that hacking a path through the thicket of EU food law is no easy task. The main rules are set forth in several different regulations, but in many cases interpretation of the rules requires resort to directives, at least for fundamental definitions. So far the attempts by the European Commission to bring order to food law rules through the Regulatory Fitness or “REFIT” programme (as we wrote about in the firm’s 2016 Yearbook) have not been entirely successful. And in ruling on disputes, the courts must naturally apply also the regulations in force in the given jurisdiction, and these may differ somewhat in the way they implement the directives.

The recent judgment by the Court of Justice in Verband Sozialer Wettbewerb e.V. v Innova Vital GmbH (Case C-19/15, 14 July 2016) well illustrates the problems of interpretation the courts have with provisions of EU food law, applicable in this case to nutritional supplements.

Is more allowed in communications with doctors?

The Munich Regional Court submitted a request for a preliminary ruling to the Court of Justice under the following facts. Innova Vital produced a vitamin D3 emulsion. In a letter addressed to individual doctors, the director of Innova Vital, himself a doctor, referred to the role of vitamin D in prevention of illnesses and the importance of giving it to children. He also pointed to the advantages of the product such as the rapid elimination of vitamin D deficiency and the ease of application in droplets (rather than tablets), and enclosed information about the ingredients of the supplement, the prices and the terms for ordering the product.

The plaintiff, a competition watchdog NGO, regarded this action by Innova Vital as a prohibited commercial practice and sought an injunction against the firm. According to the association, the letter from Innova Vital contained two health claims prohibited under Art. 10(1) of Regulation (EC) No 1924/2006 of the European Parliament and of the Council of 20 December 2006 on nutrition and health claims made on foods. The association took the position that Regulation 1924/2006 applies not only to communications directed at consumers, but also communications to specialists, and thus the requirements concerning health claims must also be followed in communications to health professionals.

Innova Vital argued in its defence that the commercial communication aimed at specialists, using specialist terminology, would not be understood by the average consumer, and thus prohibited under Art. 5(2) of Regulation 1924/2006. The defendant also argued that specialists have different expectations of the communications they receive than consumers do.

The German court faced the additional difficulty that under the German legal literature, there were also two opposing interpretations of the scope of application of the regulation.

There was also a difference of views between member states. France submitted its official position in this case that the requirements for communication of health claims under Art. 10(1) of Regulation 1924/2006 also apply to communications directed to professionals. The Belgian government, meanwhile, had issued an interpretation in 2013 holding that this regulation does not cover communications between specialists, including among food distributors or restaurateurs.

Is a communication aimed at specialists a commercial communication?

The Court of Justice thus had to interpret Art. 1(2) of Regulation 1924/2006 to resolve whether Innova Vital’s letter to specialists could contain health claims, or that any commercial communication is ultimately directed to consumers and therefore the claims in the letter must meet the requirements set forth in Art. 10(1) of the regulation.

The court had trouble interpreting the term “commercial communication,” which was not defined in the regulation. Thus it had to consult the Electronic Commerce Directive (2000/31/EC) and the Services Directive (2006/123/EC), and relied on the definitions of “commercial communication” used there. Moreover, recital 4 to Regulation 1924/2006 referred to the promotional element of commercial communications. To ensure consistency in European law, the Court of Justice ultimately held that the term “commercial communication” in Regulation 1924/2006 “must be understood as covering, inter alia, a communication made in the form of advertising foods, designed to promote, directly or indirectly, those foods.”

A specialist can also be misled

The second issue analysed in the case was to determine whether the regulation differentiates between targets of a commercial communication who are final consumers and other audiences, including health professionals. Here the difficulty was that some of the provisions and recitals of Regulation 1924/2006 expressly refer to consumers, but others do not indicate the addressees. In this case the Court of Justice applied a purposive interpretation of the regulation. For the court it was clear that the overriding purpose of the regulation is to ensure a high level of protection for consumers.

Guided by this aim, the Court of Justice recognised that while health professionals do have greater scientific knowledge than consumers, it cannot be assumed that all of them are “in a position to permanently have all specialised and up-to-date scientific knowledge necessary to evaluate each food and the nutrition or health claims used in the labelling, the presentation or advertising of those foods.” The court also agreed that “it cannot be ruled out that the health professionals themselves may be misled by nutrition or health claims which are false, deceptive, or even mendacious.” And, understandably, these specialists are not the ultimate targets of commercial communications, because their role is to forward this information to final consumers with whom they have a relationship of trust. In the court’s view, excluding commercial communications to specialists from the requirements of Regulation 1924/2006 would create a risk of circumvention of the regulation by addressing final consumers via health professionals recommending foods to their patients, relying on claims that are not necessarily based on scientific evidence. This would defeat the purpose of the regulation.

In conclusion, the Court of Justice held that Regulation 1924/2006 also covers “nutrition or health claims made in a commercial communication on a food which is intended to be delivered as such to the final consumer, if that communication is addressed not to the final consumer, but exclusively to health professionals”.

It is difficult not to agree with this position, particularly as producers of foods can use other, non-commercial channels for communicating with health professionals.

This ruling also raises a comment for EU legislators. If the drafters of this regulation were a little more thorough and included “commercial communication” in the list of definitions, with an indication that it also applies to communications directed to health professionals, it would save the work of the court in Munich as well as the court in Luxembourg.

Dr Ewa Butkiewicz, Life Science & Regulatory Practice, Wardyński & Partners