Health Claims - Case C-524/18 on the meaning of "Accompanied by"
Making reference on pack to general non-specific health benefits such as “Good Health” or similar consumer friendly wording may only be stated if “accompanied by” a specific and authorised health claims (Article 10(3) of 1924/2006). In order to give further clarification over the term “Accompanied by” the Implementing decision 2013/63 which states reference to general non-specific health benefits, should be made ‘next to’ or ‘following’ such statement’. Section 3(2) states that ‘the specific claims from the lists of permitted health claims should bear some relevance to the general reference. As this reference becomes broader, e.g. “for good health”, more health claims from the permitted lists could be eligible to accompany it.
However. what “next to” means in the real word on pack situation was not clear i.e. does this mean in same field of vision as the general non-specific claims or lined to elsewhere on pack via some form of marking. In a recent decision from the European Courts (Advocate General (AG) opinion) in mid Sept 2019 we have been afforded some additional insight.
In this case “the defendant” a manufacturer selling a food supplement carried the claim on the outer packaging “B vitamins and zinc for the brain, nerves, concentration and memory”. The back of pack carried several other claims. The “applicant” a manufacturer of medicinal plant based products initiated proceedings before the regional courts that the front of pack claim was misleading. The courts dismissed the case and their appeal on the grounds the front outer packaging neither violates article 10(3) nor 10(1) [claims are prohibited unless they comply with specific requirements of the regulation) of the health claims regulation (1924/2006). The regional court also found the Regulation did not set specific requirements for the manner in which specific claims were to accompany a general claim.
Following an appeal to the Federal courts (Germany), they found, “…that the manner in which specific claims were to accompany a general claim did raise issues of interpretation of the regulation, especially as different language versions, as well as previous case-law of the referring court, would seem to require a direct link between the general and specific claims, such as, for example, by an asterisk to refer the reader from one to the other (Para 37).”
The question referred to the European courts amongst others was:
“Is a reference to general, non-specific health-related benefits ‘accompanied’ within the meaning of Article 10(3) of Regulation (EC) No 1924/2006 by specific health claims in accordance with one of the lists provided for in Article 13 or 14 of that regulation, 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?”
The AG found that “if the wording in the Guidelines (“next to” or “following”) were to be taken at face value, then it suggests that the specific health claim must be immediately adjacent to the general health claim in order to comply with the “accompanied” requirement contained in Article 10(3) of the regulation. (Para 59)”
In the context of the broad meaning of the term “Accompanied by” the AG found, “The use of the word “accompany” in this context suggests that it is sufficient that the specific health claims required by Article 10(3) are prominently displayed elsewhere on the packaging. It is not necessary that the specific health claims are placed next to, or follow, or are otherwise immediately adjacent to the general health claims made in the present case on the front of the package. Nor does Article 10(3) contain any requirement that the general and the specific health claims be linked in some way, such as by an asterisk. It is instead sufficient that the specific health claims are given sufficient prominence such that they are accessible and can be read by the consumer.(Para 61)”
The AG went on further to give clarity to this opinion by stating, “ … it may be expected that a consumer reading a general health statement on the front of the packaging of a food product will also consult the further information provided on the back of the packaging, which in addition to a list of ingredients may also include a set of specific health claims that are meant to support the general health claim. (Para 65)“
“Thus, in my opinion, it cannot be a general requirement that a specific linking tool, such as the use of an asterisk, be deployed in order to guide the consumer from the front to the back of the packaging. However, the situation becomes more complex where the information on the back of the packaging contains a mix of statements, of which only some serve to support the general health claim on the front of the package, as referred to by the Applicant and the Commission. (Para 66)”
Depending on the facts of the case there is not specific requirement for a general health claim to have in the same field of vision (immediately adjacent) the specific wording of the health claim authorised in law. Furthermore, where there is not extensive number of claims and where the consumer can clearly see the connection to the general non-specific claim (i.e. general claim front of pack and specific claim(s) on the back of pack) no asterisk or other marking would be required. However, this should be tempered in situations where multiple claims are used on the back of pack making it unclear for the consumer to understand the relation between the general and specific health claims.