The conclusion of the court’s advocate general is not final but is likely to form the basis of the judge’s ruling expected in the next few months. Generally the judge echoes the recommendations of the advocate general, NutraIngredients understands.
The legal adviser recommended that article 1, paragraph 2 of the NHCR be interpreted as applying to “nutrition and health claims on foods intended to be delivered as such to the final consumer, which are made in commercial communications when they are intended exclusively for professional but with the goal to reach consumers indirectly through them”. [Translated from French.]
Article 1, paragraph 2 of the Regulation (EC) No 1924/2006
“This Regulation shall apply to nutrition and health claims made in commercial communications, whether in the labelling, presentation or advertising of foods to be delivered as such to the final consumer, including foods which are placed on the market unpacked or supplied in bulk. It shall also apply in respect of foods intended for supply to restaurants, hospitals, schools, canteens and similar mass caterers.”
How this endpoint is defined remains unclear and industry commentators warn of massive potential repercussions for the nutrition sector.
Founder of Italian-based Food and Agriculture Requirements Consultancy (FARE) Dario Dongo called the episode ‘La Grande Illusione’, which threatened to muzzle communication needed to secure R&D investment.
"How can this happen on the basis of such a crystal-clever legal text? Furthermore, such unjustified a priori censorship to B2B information is proposed in the era of open publishing, big data and web based knowledge. And how will the most innovative food and ingredients industries communicate their works and results within the professionals and business environment? It is just shockingly absurd!"
Dr Luca Bucchini, managing director of fellow Italian firm Hylobates Consulting, echoed this.
"Everyone who has been to a food supplement ingredient fair knows that the industry needs to explain to other businesses about properties of their products, providing studies that have not gone to EFSA [European Food Safety Authority] yet, or never will,” he told us.
“Physicians in several member states are routinely inundated by promotional material on food supplements. A ban would - in theory – be a revolution. On paper, this is now likely to happen.”
He said a ban on unapproved claims in B2B advertising would likely lead to a “wider gulf between law and practice, fewer human studies and more oblique - less transparent and science-driven - forms of communication”.
The case came to court following a dispute between German trade association Verband Sozialer Wettbewerb and vitamin D3 supplement company, Innova Vital, over material provided to health care professionals.
The trade association said the various disease claims used by the company fell foul of the EU claims regulation.
Yet the German court (Landgericht) hearing the case originally in Munich, was unsure whether the regulation was applicable given the advertising was directed solely at doctors, pharmacists and nutritionists.
Given there was no superior court precedent, the German court asked the ECJ last January: “Must Article 1(2) of Regulation (EC) No 1924/2006 be interpreted as meaning that the provisions of that regulation apply also to nutrition and health claims made in commercial communications in advertisements for foods to be delivered as such to the final consumer if the commercial communication or advertisement is addressed exclusively to the professional sector?”
You talkin’ to me?
Lara Skoblikov, partner at Food Compliance International, said the distinction had been the “burning question” since the adoption of the 2006 regulation.
She agreed Innova Vital was trying to target consumers through health professionals, and therefore should be subject to the claims regulation.
“When commercial communications directed at health professionals are in reality intended to be passed on to the consumer, these communications are subject to the rules in the NHCR. The case at hand is a perfect example of an attempt to reach the consumer indirectly, because the health professional was offered ‘free information material for his practice’ (to be distributed to patients).”
However she warned there should be a clear line drawn between this and information sent to professionals not meant to be forwarded onto the final consumer.
The present conclusion could be easily misinterpreted and lead to unjustified restrictions, she said.
Foundations of EU law
“The dichotomy consumer vs professional lies in the very foundations of EU consumer protection law in the EU,” she said.
She cited the examples of prescription medicine, infant formula and e-cigarettes, which cannot be advertised to the general public but are allowed to be advertised to professionals under certain conditions.
“It should be allowed for food business operators to objectively inform health professionals of developments relevant for their profession, such as study outcomes, even if the information relates to products sold by the food business operator.”
This came down to the fact that professionals could and should be expected to look at information with a more critical eye than the average consumer, Skoblikov and Bucchini said.
“[P]rofessionals should be responsible for what they do, and have a deep understanding of the information they receive - otherwise, they would not be professionals," Bucchini told us.
“It does not make sense to deny information to professionals such as physicians on the grounds that they can't understand it and may, in turn, mislead consumers.”