BOTANICAL CLAIMS STATUS UPHELD, EU COURT RULES / JULY 3, 2015

The decision of the European Commission to adopt a partial list of health claims and allow more than 2,000 botanical claims to continue to be used until EFSA completes their evaluation did not infringe EU law, according to a recent ruling of the General Court (the previous Court of First Instance of the EU).

The ruling dismissed an attempt by several trade associations and health food companies to annul Commission Regulation 432/2012 establishing a list of permitted health claims on several grounds relating to general principles of EU law.

In that regulation, the Commission authorised a partial list of 222 health claims. On the same date, it identified a list of more than 2,000 claims in respect of which the EFSA had not completed its evaluation or the Commission itself had not yet completed its consideration, and published that list on its webpage. According to the Commission, those on-hold health claims, which concerned, mainly  botanical substances, remained on hold and therefore could continue to be used in accordance with the transitional scheme provided for in Article 28(5) and (6) of Regulation No 1924/2006.

The applicants accused the Commission of not having a legal basis for splitting the authorisation procedure for health claims into several stages or for granting additional transitional measures to the claims put on hold. They also invoked an infringement of the principle of legal certainty as it was not possible to identify, with clarity and precision, the on-hold claims from those which have been rejected.

The Court remained unconvinced and rejected all arguments presented against the Commission’s way of action. It stated that there was nothing in Regulation 1924/2006 which suggested that the EU legislature sought to deprive the Commission of its discretionary power to establish that list on a gradual basis. Further, this  approach did not result in the adoption of several lists, as claimed by the applicants, but rather in the adoption of a single list which is added to gradually. It also stated that the Commission had set out “in a clear manner the reasoning behind its decision to adopt the list of permitted claims in stages, thereby enabling interested parties to understand the justification for that decision and the consequences thereof”.

A piece of advice to the Commission  

The Court also had a ‘better legislation’ tip for the Commission, and it stated that “it would have been desirable to adopt, for both the on-hold claims and the rejected claims, a list bearing a similar format to the list of permitted claims, annexed to Regulation No 432/2012, in order to make the task of identification easier for interested parties”. However,  the fact that the Commission adopted a different approach was not sufficient to support the applicants’ complaint of a lack of legal certainty.

More than 2,000 on-hold claims may be used under the responsibility of the food business operator, provided that they comply with the general principles established in Regulation 1924/2006 (mainly, that they are scientifically substantiated in the sense of Article 6 thereof) and the national provisions of the Member State where it is used.

Ruling of the General Court (Eighth Chamber), of 12 June 2015 in Case T‑296/12, The Health Food Manufacturers’ Association and others v Commission