Brussels-based Paolo Vergano, a partner at Fratini Vergano, has been exploring all three areas, and said non-EU governments had contacted his firm on behalf of commercial partners that are being negatively affected by the regulation because they may no longer export products into the EU bearing claims that may be authorised in their own jurisdictions.
“If that is the consequence of a negative decision then it may be considered as an import restriction into the EU de facto if not de jure,” he said. “In such a case, the dispute may be brought before the World Trade Organization and WTO procedures may assist countries in resolving the controversy. Companies must be aware of this legal avenue and work with their Governments to explore such approach.”
Vergano will present his ideas at a health claims conference in Brussels next week, where he will also show why the NHCR breaches commercial speech laws regarding non-misleading marketing, drawing heavily on recent US case law that forced the US Food and Drug Administration (FDA) to alter its qualified health claims system last year.
The use of IP, and in particular trademarks will also be discussed, and how trademark law and the NHCR interact, especially in regard to certain trademarks such as SlimFast or Activia that may themselves be deemed health claims.
For more information about the conference click here.