13. Februar 2020 – In a recent decision, the Court of Justice of the European Union (“CJEU”) decided on the interpretation of art. 10 para. 3 of the Regulation No 1924/2006 of the European Parliament and of the Council on nutrition and health claims made on foods (OJ 2006 L 404/9; “Regulation”). According to Schwabe GmbH & Co. KG (“Schwabe”), the company Queisser Pharma GmbH & Co. KG infringed the Regulation by making unauthorized claims on the outer packaging of a food supplement. Schwabe brought an action before the Landgericht Düsseldorf (Regional Court) requesting that the food supplement may no longer be advertised. The matter was appealed to the Bundesgerichtshof (Federal Court of Justice), which stayed the proceedings and referred the following questions to the CJEU for a preliminary ruling:

• Is a reference to general, non-specific health-related benefits “accompanied”, even if that reference is situated on the front and the authorised claims are situated on the back of an outer packaging and, in the perception of the public, although the claims are clearly related to the reference in terms of content, the reference does not contain a clear indication, marked with an asterisk, for example, to the claims on the back?
• Does evidence also need to be provided in the case of reference being made to general, non-specific benefits?

The CJEU answered to the first question that art. 10 para 3 of the Regulation must be interpreted as meaning that the requirement that any reference to general, non-specific benefits of the nutrient or food must be accompanied by a specific health claim included in the lists provided for in arts. 13 or 14 of the Regulation is not satisfied where the packaging of a food supplement contains a reference to general, non-specific health benefits of a nutrient or food on the front of the packaging, whereas the specific health claim intended to accompany it appears only on the back of that packaging and there is no clear reference, such as an asterisk, between the two. The answer of the second question is that art. 10 para. 3 of the Regulation must be interpreted as meaning that references to general, non-specific benefits of the nutrient or food for overall good health or health-related well-being must be justified by scientific evidence. To that end, it suffices for those references to be accompanied by specific health claims included in the lists provided for in art. 13 or art. 14 of the Regulation.

For the full decision, see here.