Submission to the ECJ on expert advertising and the nutrition and health claims regulation
Regulation (EC) No. 1924/2006 (the Nutrition and Health Claims Regulation or NHCR) sets out the requirements for and the presentation of nutritional and health-related information for foodstuffs. It serves both to provide consumer health protection and to protect the consumer from misinformation. During the legislative process, both the passing and the content of the NHCR were already highly controversial and even today courts are still deliberating over the interpretation of this body of legislation. The Regional Court (Landgericht) of Munich I currently has to decide on the applicability of the NHCR on “expert advertising” (“Fachkreiswerbung”). By way of its decision of 16 December 2014, the court submitted this legal question to the European Court of Justice (ECJ) for a decision.
Submission to the ECJ
The proceedings before the Regional Court are concerned with competition-law cease-and-desist claims for alleged violations of the NHCR. The Defendant markets the food supplement “i.Vitamin D3”. The Defendant distributed advertising in letters sent only to doctors and used health-related information which failed to meet the material requirements for health claims under the NHCR. The outcome of the dispute therefore depends on the question of whether or not the NHCR is also applicable to advertising intended for expert groups, such as doctors, pharmacists, alternative practitioners, nutritionists or dietitians. The NHCR contains no express provisions in this regard. This aspect is the subject of even more controversial debate in the literature on foodstuffs law.
Arguments in favour of the application of the NHCR to expert advertising
|Those who support the application of the NHCR to expert advertising primarily base their arguments on the wording of the NHCR in Article 1(2) which states:
“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.”
According to this wording, therefore, the provision certainly does not differentiate on the basis of the addressee of the communication. It is argued that the scope of application is determined solely with reference to the product and that the Regulation applies to communications intended for expert groups as long as the remaining requirements of the Regulation are met. In addition, the objective of the Regulation – consumer protection – is also argued to require the application of the NHCR to expert advertising since advertising intended for expert groups directly affects consumers. As expert groups are information intermediaries who are not always familiar with the latest scientific findings, it is argued that advertising aimed specifically at them is capable of winning them over so that they will then recommend certain products.
|The counterargument is that the NHCR only covers B2C communication. It is therefore argued that the differentiation on the basis of the addressee of the communication in Article 2(1) of the Regulation is not necessary and that the wording of the provision is not decisive. In addition, both the recitals and numerous restrictions of the NHCR are said to be geared to the consumer and to his or her understanding of nutritional and health-related information. The scheme of the Regulation also allows arguments against the application to expert groups to be raised. The legislator is thus said to have recognized the need for a legal regulation pertaining to expert groups as Articles 11 and 12 of the NHCR both contain specific provisions relating to information provided by certain expert groups. Had the legislator wished to also include information intended for expert groups, it would – according to those who argue against the application of the Regulation to expert groups – have expressly stated this. Furthermore, they say, it should be considered that the NHCR offers no possibility of obtaining an authorization to submit such information to expert groups; the general requirement of Article 10 of the NHCR whereby only information that is comprehensible to the consumer should be authorized, ought then also to apply to expert advertising. However, it is argued, this fails to take account of the fact that expert groups possess different background knowledge than the average consumer.
The forthcoming decision by the ECJ is of supreme relevance to legal practice. If the NHCR’s scope of application is widened to include expert advertising, commercial information provided to expert groups which – usually – functions as advertising, must meet all requirements of the NHCR. In particular, the health claims intended for expert groups could only admissibly be made if included in a list compiled by the Commission. Furthermore, nutritional value labelling would also have to be adapted in line with the information contained in expert advertising. If the ECJ deems that the NHCR is not applicable to expert advertising, however, then the restrictions and requirements set out therein could be disregarded. The making of health claims intended for expert groups would then be fundamentally admissible as long as such claims are not misleading. The ECJ decision will bring clarity and, it is hoped, somewhat more legal certainty overall to an important interpretation issue.
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