EU COURT RECOGNISES THE USE OF ASTERISK TO LINK GENERAL HEALTH BENEFITS WITH SPECIFIC AUTHORIZED HEALTH CLAIM

The European Court of Justice accentuates that a direct reference with a specific health claim is required when a food label mentions general, non-specific health benefits of a nutrient or food. The Court explicitly recognises that the use of an asterisk can perform the function of such a direct link between the two statements. Furthermore, the references to general, non-specific benefits of the nutrient or the food must be justified by scientific evidence.

The German Federal Court had referred a question for preliminary ruling with the European Court of Justice in order to get clarity on the requirement under article 10(3) of the EU Nutrition and Health Claims Regulations holding that a ‘reference to general, non-specific benefits of the nutrient or food for overall good health or health-related well-being may only be made if accompanied by a specific health claim’. In particular, the EU Court was asked to clarify the aspect of ‘accompanied’ by a specific authorized claim. In the given preliminary ruling, the Court emphasizes, that it is essentially the food business operator’s responsibility to show the connection between the general statement and the specific health claim both substantively as well as visually. Regarding the visual aspect of ‘accompanied by a specific health claim’, the Court invokes the concept of the average consumer (who is reasonably well informed and reasonably attentive and circumspect) to assess whether the visual link between the statements would be sufficient. Such would in principle require spatial proximity or vicinity between the general statement and the claim. Though the Court continues that, depending on the circumstances, another explicit reference, such as an asterisk, could be a direct visual link which is sufficiently clear and perfectly comprehensible to the consumer to link the general health benefit with a specific claim. It remains with the national court at question to assess whether that link has been sufficiently established.

The second question asks whether references to general, non-specific benefits of the nutrient or food for overall good health or health-related well-being must be substantiated by scientific evidence. The Court refers to the general conditions for health and nutrition claims under Article 5 of the Nutrition and Health Claims Regulation, which holds that the use of nutrition and health claims should only be permitted if the presence, absence or reduced content in a food or category of food of a nutrient or other substance in respect of which the claim is made has been shown to have a beneficial nutritional or physiological effect, as established by generally accepted scientific evidence. Article 10(1) of the same Regulation clearly indicates that the general requirements apply to all health claims. Although, considering the general statement needs to be accompanied by a specific, authorized health claim, the Court opines it is sufficient to rely on the references for the specific, authorized health claims supported by generally accepted scientific evidence.

European Court of Justice, Case C‑524/18, Dr. Willmar Schwabe GmbH & Co. KG v Queisser Pharma GmbH & Co. KG - link