The move is a major victory for Britain's health food industry, which has campaigned against the directive for some years. Passed in 2002, the directive is intended to harmonise the health food market across all EU states but it will also see around 270 nutrients currently included in supplements removed from the market and significant damage to UK trade, according to campaigners.
In an English high court on Friday, judge Mr Justice Richards ruled that the industry had 'an arguable case' and the reference to the European court 'is plainly appropriate'. He emphasised that the reference should be made without delay given that the directive is scheduled to be enforced across member states from 1 August 2005.
"This is a test case on the proper scope of the legislative powers of the Community legislator over member states and has far reaching implications for health as well as freedom of choice," said the Alliance for Natural Health, one of three UK trade assocations that brought legal proceedings against the directive.
Opponents of the directive say that it infringes fundamental principles of European law, including the right to property and to carry on an economic activity. The UK government is however in opposition to the move.
Rhodri Thompson QC, for the National Association of Health Stores and Health Food Manufacturers' Association, who are bringing a parallel challenge, said it was 'most extraordinary' that government lawyers were opposing a reference to the European court.
The directive "threatens health, freedom of choice and legitimate commercial interests", he told a Press Association report.
Dr Robert Verkerk, executive director of the Alliance for Natural Health, said: "We are hopeful that the European Court in Luxembourg will invalidate the unnecessary ban on the wide range of natural, food-derived ingredients that comprise most of the advanced food supplements. The proposed ban is wholly unnecessary and works counter to health policy where nutrition is increasingly seen as a key way forward."
British companies expect the directive (2002/46/EC) to restrict the sale of many higher dose nutrients, such as antioxidant vitamins C, B6 and E and essential minerals including selenium and zinc, currently available in the UK and other more liberal countries like Ireland and Sweden but not permitted in many other European nations.
UK consumers buy over £335 million (€482m) worth of vitamins and minerals annually. The industry is hoping that the European Court of Justice will hear the case before August 2005.