Opinion A-G CJEU on nutrition and health claims

18-02-2016 Print this page
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Case C‑19/15Verband Sozialer Wettbewerb e.V. v Innova Vital GmbH. Request for preliminary ruling from the Landgericht München - Germany. Opinion A-G H. Saugmandsgaard Øe.

ADVERTISING LAW

The question referred to the Court of Justice (CJ) is:

‘Must Article 1(2) of Regulation No 1924/2006 be interpreted as meaning that the provisions of that regulation apply also to nutrition and health claims made in commercial communications in advertisements for foods to be delivered as such to the final consumer if the commercial communication or advertisement is addressed exclusively to the professional sector?’

A-G Saugmandsgaard Øe proposes that the Court answer the question referred for a preliminary ruling as follows:

"Article 1(2) of Regulation (EC) No 1924/2006 of the European Parliament and of the Council of 20 December 2006 on nutrition and health claims made on foods must be interpreted as meaning that the provisions of that regulation apply to nutrition and health claims made in commercial communications on foods to be delivered as such to the final consumer if those communications are addressed exclusively to the professional sector but are intended to be targeted indirectly at consumers, via the professional sector.

38. Nevertheless, in view of the wording of Article 1(2) and of all the other provisions of Regulation No 1924/2006, it cannot, in my view, be ruled out that that regulation may govern both commercial communications addressed directly to consumers and communications which, although addressed exclusively to professionals, are in fact intended to be targeted indirectly at the consumers who may purchase the food concerned.

39. The legislature has made no distinction based on the capacity of the addressee of communications containing the nutrition and health claims covered by that regulation. The only requirements laid down in the regulation concern the purpose and nature of those communications. First, they must relate to foods to be delivered to a final consumer and, secondly, they must be of a commercial nature, whether they take the form of the labelling or presentation of such foods, or — as in the dispute in the main proceedings — the advertising of those foods. It is therefore the product itself, and not the communication of which it is the subject matter, which must necessarily be aimed at consumers.

40. The criterion that communications must be of a commercial nature is, in my view and that of the Greek Government and the Commission, a major factor in answering the question raised in the present case. 

41. Although that criterion is not expressly defined in Regulation No 1924/2006, it is clear from other acts of EU law, as stated by the Commission, that commercial communication generally refers to a communication which has the aim of ensuring the economic promotion of products and services, either ‘directly’ or ‘indirectly’, and thereby influencing the decisions of potential buyers. I note that a similar approach was taken, at international level, in the ‘Guidelines for use of nutrition and health claims’, adopted by the Codex Alimentarius, to which recital 7 of that regulation expressly refers.

43. Professionals are generally in a position to significantly influence the consumers who go to them, and this is particularly so in the case of health professionals, who command a high degree of trust and confidence among patients."

Read the opinion here.

 

Link to previous IPPT article on the question for a preliminary ruling.