The ruling generates significant legal uncertainty and could have massive implications for B2B advertising.
Yet while it was assumed that the judge would echo this opinion in the final ruling, partner at Food Compliance International, Sebastián Romero Melchor, told us he had expected the court to “go deeper in its reasoning”.
The court concluded that ‘commercial communication’ is a communication that aims to ‘promote’ goods or service.
“Such a communication may also take the form of an advertising document which food business operators address to health professionals, containing nutritional or health claims within the meaning of that regulation, in order that those professionals recommend, if appropriate, that their patients purchase and/or consume that food,” the court said on Friday.
Back in March the initial opinion was condemned by industry commentators for not recognising health care professionals as experts, who could therefore be expected to look at information with a critical eye.
The case first 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 that contained disease claims.
Yet the German court hearing the case was unsure whether the NHCR was applicable given the advertising was directed solely at doctors, pharmacists and nutritionists and therefore forwarded the question to the EU courts.
In last week’s ruling the judge conceded this expertise, but stood by the conclusions.
“Admittedly, health professionals may be considered to have scientific knowledge superior to that of a final consumer, understood as an average consumer, who is reasonably well informed and reasonably observant and circumspect, as stated in recital 16 of that regulation,” the ruling said.
“However, those professionals cannot be regarded as being in a position to permanently have all specialised and up-to-date scientific knowledge necessary to evaluate each food and the nutrition or health claims used in the labelling, the presentation or advertising of those foods.”
This final ruling means companies will have to re-think their communication strategy with health professionals as well as B2B.
In a blog post Food Compliance International advised companies to hone in on the court’s statements on communicating 'objective information' of a 'non-commercial nature' to health professionals about new scientific developments, which the court did not object to.
The law consultancy firm said to be considered as objective, it would be “crucial” the information is only given to health professionals, is related to their professional interest and is of a “purely scientific and factual nature”.
It advised using guidelines on publication in medical journals as a marker of the highest standards on scientific communication.
Proving something is 'non-commercial' would be the greatest challenge however.
It said the 2006 health claims regulation was particularly restrictive on its definition of non-commercial communications, with some exception given to references to dietary guidelines and public authority advice and “non-commercial communications and information in the press and in scientific publications”.
However the firm said: “Considering the promotional purpose (whether direct or indirect) is the main criterion to differentiate commercial from non-commercial communications and that any form of communication by a food business operator in connection to their products (including to the health professionals) could be presumed to be made with an intention to promote them (in this case, indirectly, by means of enhancing their credibility and reputation among health professionals), it will be difficult to escape the application of the Claims Regulation.”