On September 26, 2024, a request for a preliminary ruling was submitted to the Court of Justice of the European Union (CJEU) regarding the correct application of nutrition and health claims in advertising (Case C-657/24).
What is this case about? What are the legal grounds for this question? Will the CJEU ruling affect the current practice of using claims in dietary supplement advertising, and what impact might it have on consumer protection? What are the most important rules regarding the advertising of dietary supplements? What mistakes should be avoided?
What is the case about?
The case concerns the interpretation of Article 10(2) 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.
What is the actual background of the case?
Kyberg Pharma Vertriebs-GmbH, the distributor of the dietary supplement “Ebbes GLS Kapseln,” advertised its product with slogans such as “GESUND GEWICHT VERLIEREN” (“LOSE WEIGHT HEALTHILY”) and “Glucomannan trägt im Rahmen einer kalorienarmen Ernährung zu Gewichtsverlust bei” (“Glucomannan helps with weight loss as part of a low-calorie diet”). This use of claims was challenged by Schutzverband gegen Unwesen in der Wirtschaft e. V., which argued that meeting the information requirements on the product packaging was insufficient and that this information should be repeated in the advertising.
For the referring German court, the Bundesgerichtshof, the case is not clear, and the decision depends on the CJEU providing answers to the following questions:
- Should Article 10(2) of Regulation (EC) No 1924/2006 be interpreted to mean that the term “labelling” also includes written advertising of food, implying that the use of a health claim in written advertising requires compliance with the information requirements set out in that provision?
- Should Article 10(2) of Regulation (EC) No 1924/2006 be interpreted to mean that when health claims are used in food advertising, the information requirements must also be met in the advertisement itself, even if the food labelling contains the required information?
Legal grounds of the case
The applicant, Schutzverband gegen Unwesen in der Wirtschaft e. V., argued that the defendant must provide the information specified in Article 10(2) of Regulation (EC) No 1924/2006 not only on the product packaging but also in the advertisement. This applies even if the product labelling is done correctly. Specifically, the issue concerned the absence of information about the importance of a balanced diet and a healthy lifestyle in the advertisement.
The court of first instance, the Landgericht (Regional Court), agreed with the position of the authority, finding that the advertisement must include all the required information. The entrepreneur’s appeal was also dismissed, and the court ruled that the advertisement was prepared and disseminated improperly. According to the court, the company violated the information obligation under Article 10(2)(a) of Regulation No. 1924/2006, which requires the advertisement to include a statement indicating the importance of a balanced diet and a healthy lifestyle. This information obligation also applies when such a statement is included on the product packaging. This follows from the fact that an advertisement is considered labelling within the meaning of Article 10(2)(a) of Regulation No. 1924/2006. This interpretation aligns with the objective of Article 1(1) of Regulation No. 1924/2006, which is to ensure a high level of consumer protection, as well as with Recital 4, which states that the regulation should apply to all nutrition and health claims made in commercial communications. The court held that this interpretation is consistent with the German and English language versions of Article 10(2)(a) of Regulation No. 1924/2006, and that the different French language version does not prevent this interpretation.
In this case, the entrepreneur referred to point 2.1, second paragraph, of the annex to Commission Implementing Decision No 2013/63/EU of 24 January 2013, which adopts guidelines for the implementation of specific conditions concerning health claims set out in Article 10 of Regulation No 1924/2006.
The preliminary question emphasized that, according to Article 2(2)(1) of Regulation No. 1924/2006, a “claim” means any message which, in accordance with Community or national law, is not mandatory, including pictorial, graphic, or symbolic representations in any form, that states, suggests, or implies that a food has particular characteristics. Furthermore, according to Article 2(2)(5) of Regulation No. 1924/2006, a “health claim” means any claim that states, suggests, or implies that there is a relationship between a category of food, a food, or one of its constituents, and health.
What’s interesting is that the CJEU will address the fact that in the regulations the terms “label,” “labelling,” and “advertising” are distinct. Even if a written advertisement does not constitute food labelling within the meaning of Article 10(2) of Regulation No. 1924/2006, or if the information obligations arising from one part of labelling can be fulfilled in another part, it is possible that the information obligations under this provision must also be met in food advertising if the food labelling contains the required information. This issue needs clarification because it affects what information must be included and what is not necessary. However, this matter is unclear, and the questions posed to the CJEU essentially boil down to this:
- Does the term “labelling” also include written food advertisements, meaning that the use of a health claim in a written advertisement requires compliance with the information requirements specified in this provision?
- Must the information requirements also be met in advertising, even if the food labelling contains the required information?
The meaning of the definitions of “labelling” and “label”?
The Court’s ruling in this case will have significant implications for the advertising practices of dietary supplement manufacturers. Clear guidelines on what must be included in advertisements, as well as how the concept of advertising relates to labelling, can help avoid ambiguities and interpretative differences between Member States.
If the Court rules that the term “labelling” also includes written food advertisements, companies will have to meet the same information requirements both on product packaging and in their advertisements. This could mean that all health claims in ads must be supported by appropriate information, such as the importance of a balanced diet and a healthy lifestyle, but not limited only to the issues under dispute. Ultimately, it will depend on how the CJEU justifies its position and indicates the direction of interpretation, for example, related to the form of communication or the different roles that packaging/labels and advertisements play. The Court may also differentiate the elements of labelling, sometimes adjusting them to advertisements and labels, and sometimes only to labels.
Impact of the case on consumer protection?
At first glance, it seems that such an interpretation could enhance consumer protection by ensuring that information in advertisements is clear and available both on packaging and in the ads themselves. This way, consumers would likely be better informed about the products they purchase, which could lead to more conscious nutritional choices.
However, it should be remembered that an overload of messages in advertisements may not promote clarity and transparency of the communication. It is important that the information directed to consumers is clear, readable, and reliable. The question remains whether the CJEU will take this into account in its considerations.
Important rules for labeling dietary supplements with health claims in Poland?
They are strictly regulated by European Union regulations as well as national laws concerning food safety and nutrition. Here are the most important rules:
Compliance with Regulation (EC) No 1924/2006: Health claims must comply with Regulation (EC) No 1924/2006 of the European Parliament and of the Council on nutrition and health claims made on foods. They must be approved and included on the list of authorized health claims. We are still awaiting the CJEU decision in case C-386/23 concerning the rules for the use of so-called pending claims.
Information requirements: The label of a dietary supplement must include specific information, such as:
- The name of the category of nutrients or substances characterizing the product.
- The recommended daily portion of the product.
- A warning not to exceed the recommended daily dose.
- Information that dietary supplements do not replace a balanced diet.
- Information that the product should be stored out of reach of small children.
Prohibition of misleading information: Health claims must be truthful, clear, and not misleading. They cannot suggest that not consuming a particular food could negatively affect health, nor refer to the speed or amount of weight loss.
Prohibition of attributing medicinal properties: Dietary supplements cannot be advertised as medicinal products or be attributed with properties of treating or preventing diseases.
Transparency and clarity of information: The information on the label must be understandable to the average consumer, legible, and must not be misleading.
Sanctions for non-compliance: Failure to comply with the requirements for labeling dietary supplements may result in financial penalties and orders to change labels or advertising content.
Will the ruling impact advertising practices?
The ruling of the CJEU in this case may influence legal practices throughout the European Union, shaping how companies promote their products. This also applies to Poland. In Poland, manufacturers and distributors ensure that information about the importance of a balanced diet and a healthy lifestyle is included on packaging. This requirement is well known to entities. However, this statement does not always appear in advertising.
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It should be kept in mind that according to Article 7(2) of the Code of Good Practices for Dietary Supplement Advertising, the advertisement of a dietary supplement cannot suggest that its consumption can replace a balanced diet.
Businesses will need to adjust their advertising practices to comply with the new requirements. This may mean changing the content of advertisements to include all the necessary information, which could affect how products are promoted.
Of course, these are potential costs for businesses. Adapting to the new requirements may involve additional expenses for companies that will need to change their advertising materials and ensure all information complies with regulations. This means changes in marketing strategies. Companies will have to rethink their marketing approaches to meet the new rules. This could require altering advertisement content to include all necessary information, which may impact how products are promoted. Manufacturers who fail to comply with the new requirements may face legal sanctions, including financial penalties and orders to cease advertising practices that violate the regulations.
In conclusion?
In summary, the Court’s decision may compel dietary supplement manufacturers to pay greater attention to regulatory compliance, which could involve additional costs but also benefits such as increased consumer trust and greater market transparency. Overall, the Court’s ruling in this case could have far-reaching effects on how health claims are presented to consumers across the European Union, impacting advertising practices and the level of consumer protection.
Therefore, it remains to follow the progress of this case, about which we will definitely keep you informed.