How easily digestible wine and healthy chocolate tempt to seduce - recent decisions on Health Claims
Commentaar in't kort van Karin Verzijden, Axon advocaten.
By 14 December 2012, food items in the European Union (EU) with a health claim on their packaging not on a permitted list will have to be removed from the shelves. The so-called permitted claims list was developed on the basis of the Regulation on nutrition and health claims on foods (the Regulation) , which came into force in January 2007. The aim of this Regulation is to harmonise rules related to health claims on food, in order to allow the consumer to make an informed choice and to stimulate the free movement of foods. All nutritional and health claims made in commercial communication in relation to all foodstuffs, including drinks and supplements fall within its scope. With this Regulation, the Commission hopes to eliminate misleading claims and to allow only those that are clear, easily understood by consumers and supported by scientific evidence, while at the same time levelling the playing field for food product manufacturers in the EU.
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Recent cases: EU
Despite criticism and pending annulment action, at the moment the health claims Regulation is being enforced and strictly interpreted. A prime example is the recent case at the European Court decided on 6 September 2012, in which the Court upheld the prohibition on the marketing of wine as ‘easily digestible ’. Even though the statement was correct in principle and did not imply an improvement in health, it implied the preservation of a good state of health despite the potentially harmful consumption of alcoholic beverages in the short and long run. The Court felt that the prohibition was compatible with the fundamental rights guaranteed at an EU-level and with the principle of proportionality.
Recent cases: the Netherlands
Claims on food packaging and in advertising are not only under scrutiny at the EU level, on a national level in the Netherlands, the Dutch Advertising Code Authority (Stichting Reclame Code) has been addressing misleading product advertisement under the self-regulatory regime of the Dutch Advertising Code. A case brought by a consumer and decided against the manufacturer under this Code in July 2012 concerned advertisement for a soft drink as ‘100% organic’ when it was not. Reference point is whether the average consumer would have made a purchasing decision based on these statements that he might otherwise not have.
Conclusion
Health claims in food labelling and advertising have become vital marketing tools to attract consumers’ attention and to differentiate products from competing products. On the one hand, EU consumers expect accurate information on products they buy, in particular when health claims are put forward. On the other hand, Member States, regulatory bodies and non-governmental consumer interest organisations have been given extra means to challenge these claims. The permitted health claims list is expected to have far-reaching consequences especially for the food supplement industry, as health and nutritional claims are their products’ main selling point. Given the potential impact of the regulation and its permitted list for the industry, Axon Lawyers will continue to actively monitor the developments in this area, including the legal action initiated against the Commission.
Lees de gehele bijdrage, inclusief voetnoten: hier.
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Als randvermelding. In het september nummer van European Food and Feed Law tijdschrift is het "Country Report" voor Nederland verschenen van de hand van Ebba Hoogenraad en Christine Fontaine, 
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