Case C-19/15, Verband Sozialer Wettbewerb – stopping a company making health claims to doctors [judgment 2016, ECLI:EU:C:2016:563]

When a company sells Vitamin D3 and directs its advertising solely to doctors, then do any of the health claims made in its advertising fall outside of the EU’s ‘nutrition and health claims made on foods’ Regulation 1924/2006?

Background
Innova Vital sells a Vitamin D3 food supplement. Its advertising claims that studies have shown that Vitamin D contributes to the prevention of diseases such as atopic dermatitis, diabetes mellitus, and MS. Innova Vital’s advertising also pointed out that if the levels of Vitamin D were too low in childhood, then this could cause these diseases to appear later on in life. The advertising also claimed that the company’s product could quickly reduce Vitamin D3 deficiency found in 80% of the population during the winter.

This advertising was considered to be illegal by a German trade association, which keeps an eye on and enforces German unfair competition law. They considered that the advertising fell foul of the EU’s ‘nutrition and health claims made on foods’ Regulation 1924/2006 (OJ 2006 L404/9).

Articles 10(1) and (2) of the EU’s Regulation stipulate:

Specific conditions
1. Health claims shall be prohibited unless they comply with the general requirements in Chapter II and the specific requirements in this Chapter and are authorised in accordance with this Regulation and included in the lists of authorised claims provided for in Articles 13 and 14.

2. Health claims shall only be permitted if the following information is included in the labelling, or if no such labelling exists, in the presentation and advertising:
(a) a statement indicating the importance of a varied and balanced diet and a healthy lifestyle;
(b) the quantity of the food and pattern of consumption required to obtain the claimed beneficial effect;
(c) where appropriate, a statement addressed to persons who should avoid using the food; and
(d) an appropriate warning for products that are likely to present a health risk if consumed to excess.

In view of the fact that the health claims violated Articles 10(1) and (2), the German association therefore sought an injunction to stop the company from making these health claims in its advertising.

However, the German court hearing the dispute was not sure whether that EU legislation was even applicable. The Landgericht in Munich identified the key problem: the advertising in which the health claims were made, was directed solely at doctors, pharmacists and nutritionists. There was also no case law from a superior court to guide it on whether such health claims were covered by the Regulation. Furthermore, legal commentary seemed divided on the issue.

Therefore, the German court carefully recorded the numerous arguments and counter arguments that were raised by the parties’ lawyers; however, for present purposes, a selection of them will suffice.

On the one hand, there was Article 1(2) of the Regulation. This talked of goods for consumers. It did not make any distinction according to the type of person who received the commercial communication. Interpreted teleologically, the aim of the Regulation was to achieve a high level of protection. That would not be guaranteed if there was uncertainty as to whether any particular communication was directed to a professional circle or not. Moreover, if advertising contained claims about the effects of a particular food supplement and those claims were not supported by scientific study, then this could still mislead professionals for they too might take food supplements. More seriously, there was also the risk that professionals would pass on the misleading information to their patients in good faith, and thereby recommend those products to consumers. In such circumstances, professionals needed protection just as much as, if not more than, consumers.

On the other hand, the primary goal of the Regulation was the protection of consumers and the proper working of the internal market. In principle that goal could still be attained if the claims that were made to non-consumers remained outside the scope of the Regulation. A further indication that such claims should remain outside the scope of the Regulation could be deduced from the way in which the EU legislature had drafted and structured the Regulation. That is to say, if the EU legislature had intended to capture health claims made to professionals, then it should have created a separate procedure for such claims – the legislature has not done this. Consequently, if the Regulation were now to be interpreted as covering all claims, including those made to professionals, then the Regulation would capture claims that were based on scientific studies – and the Regulation would promptly prohibit them on the basis that consumers simply would not understand them. More profoundly, such an interpretation of the Regulation would amount to an infringement of the fundamental rights of freedom of expression and information as enshrined in Article 6(3)TFEU read together with Article 10 EHCR.

Questions Referred
According to the Curia website, the Munich Landgericht has asked:

Must Article 1(2) of Regulation (EC) 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?