It is always a worry when the courts start to interpret new legislation - will their judgments set out workable and clear principles, or will they defeat the thinking behind the new law? The European Court of Justice has made a good start with the Nutrition and Health Claims Regulation.
Last September, it sensibly decided claims about foods would count as health claims even if the health effects being promoted were only temporary.
In its second decision on the NHCR, on 18 July, the Court made a number of rulings that again respect the intentions of the regulation, and acted to ensure a surprise loophole did not open up.
The case related to Green-Swan Pharmaceuticals, which was marketing a food supplement with the statement: ‘The preparation also contains calcium and vitamin D3, which help to reduce a risk factor in the development of osteoporosis and fractures’. This claim has not been authorised under the NHCR.
Green-Swan tried to rely on the trade mark exemption under which the regulation does not apply until 2022 for health claims in trade marks or brand names in use before 2005. It argued this should also apply to claims on packaging labelled with a trademark or brand name in use before 2005 - even when the claim was not part of the mark or name.
The Court rejected this argument, which would have created a huge and unintended loophole.
It also considered if it was a “reduction of disease risk” claim. This is defined as a claim that indicates a “significant reduction in a risk factor in the development of a disease”. Green-Swan argued it was not such a claim as the label did not say the reduction was “significant”. The Court said this did not matter as a consumer was likely to understand it would be significant.
So could a supplier avoid making a health claim by expressly stating that the health impact would not be significant? I don’t believe this would work: it might keep the claim outside the category of “disease risk reduction”, but it would still be a health claim and therefore still need to be assessed by EFSA and added to the EU’s approved claims list.
Owen Warnock is a partner at Eversheds and a law professor at the University of East Anglia