EU law places strict controls on the use of nutrition and health claims on food labelling and in advertising. Under Regulation (EC) No 1924/2006 (the Regulation):
a nutrition claim is any claim which states, suggests or implies that a food has particular beneficial nutritional properties due to the energy and/or nutrients or other substances it provides or contains (e.g., "low fat" or "source of fibre"); and a health claim is one which states, suggests or implies that a relationship exists between a food category, a food or one of its constituents and health (e.g., "Calcium is needed for the maintenance of normal teeth"). Under the Regulation, it is only possible to use nutrition claims that are listed in the Annex to the Regulation, and/or health claims that have been authorised by the European Commission following a European Food Safety Authority scientific review. The only exception to these requirements is in relation to claims that are trade marks (or brand or "fancy" names) and general, non-specific health claims (e.g., "Good for you" or "Healthy"). These claims may be used without prior approval, provided they are accompanied by an approved claim (which, in the case of a general health claim, must be an authorised specific health claim, such as the calcium example given above).
Reference for a Preliminary Ruling
Different language versions of the Regulation have given rise to the potential for inconsistent interpretation by national courts of the "accompanied by" requirement, and to disparate application of the rules by national enforcement authorities. Unsurprisingly, given the rather restrictive requirements of the Regulations and differences in interpretation, questions have arisen about the interpretation of these rules. The latest is Case C-524/18, Dr. Willmar Schwabe. In the context of proceedings commenced in the German courts, a question arose regarding the meaning of the Regulation's requirement that a general health claim must be "accompanied by" a specific authorised health claim. In particular, the German Court asked the European Court to provide its interpretation of the Regulation (known as a request for a preliminary ruling), asking whether it is sufficient for an accompanying specific health claim to be depicted on the back of a package, when the general health claim is displayed on the front of that package.
Advocate General Hogan delivered his Opinion on the matter on 12 September 2019. In short, his answer is...