The court rejected an injunction request to block a cranberry player from making claims, because it found that such claim-making was not invalidated merely by an EFSA opinion, if permitted under national law.
Only when the opinions became law after member state and European Commission scrutiny and possible amendment, did the EFSA opinions become legally binding – and even then there was a six month grace period for companies to alter their marketing.
The injunction applicant had based its legal argument on the fact that EFSA’s health claims panel had rejected cranberry-urinary tract infection health claim submissions from cranberry leader Ocean Spray and others.
Frankfurt-based lawyer, Thomas Buttner, from the firm Forstmann, Buttner, Kruger, said the decision was significant because it affirmed that EFSA opinions were just that – opinions – and not legally binding.
“The applicant intended to get a provision of advertising claims referring to cranberry capsules and based this application on negative EFSA opinions regarding cranberry and some applied health claims,” he told NutraIngredients.
It was the first court action, he said, where a court had been asked to rule on the use of EFSA health claim opinions, “before the EC has published a negative regulation prohibiting the health claims on the European level and before the termination of the six month transition period.”
“This is a milestone for the food industry and a significant setback for the intended misuse of EFSA opinions in court actions in Germany.”
In April another German court took a different view of EFSA health claim opinions by ordering glucosamine and chondroitin products to be stripped from shelves after negative opinions from EFSA’s Panel on Dietetic Products, Nutrition and Allergies (NDA).
In a letter that formed part of a correspondence between Dutch probiotics company, Winclove Bio Industries, and the European Commission about implementation of the NHCR, Buttner claims German firms are using EFSA opinions to attack their competitors in the courts.
German firms have begun, he wrote, to, “misuse already published Scientific Opinions of EFSA to try to initiate court actions to prohibit all Health Claims which may have something in common with the Health Claim which was … evaluated by EFSA with a negative outcome.”
“Since the Scientific Opinions of EFSA will be published immediately all competitors, authorities and courts can use these scientific opinions for their decisions to evaluate advertising claims. In Germany this has already provoked a lot of court actions with the goal to stop certain health claims immediately.”
Buttner said he knew of at least two actions in Frankfurt civil courts that had succeeded in prohibiting chondroitin and glucosamine claims being made on food supplements.