Revolutionary CJEU ruling: Health claims in supplement advertising are prohibited

• The CJEU has issued a judgment on botanical supplements and their advertising using health claims.
• The case concerns a German company that offers a supplement containing plant extracts for sale and in its advertising the company emphasizes that these extracts, among other things, improve a person's mood.
• The Court noted that, under the 2006 Regulation, the use of health claims in the advertising of food and food supplements is, in principle, prohibited.

As indicated in the Communication, "this fundamental prohibition applies until the Commission has completed its examination of these claims and included them in the list of permitted health claims, unless their use has already been authorised under the transitional regime."

The CJEU notes that the case in question concerns the German company Novel Nutriology, which offers for sale a food supplement containing extracts of saffron and melon juice, and in its advertising the company indicated that these extracts improve a person's mood or reduce the feeling of stress and exhaustion .

- The German professional association has taken Novel Nutriology to court in Germany to prohibit the company from using these claims. The association believes that they are contrary to EU law. The German Federal Court of Justice has referred questions on this issue to the Court of Justice, the CJEU said in a statement.

Importantly for this case, the Court noted that under the 2006 Regulation, the use of health claims in the advertising of food and food supplements is prohibited in principle. However, the use of such claims may be permitted provided they have been authorised by the Commission and included on a list of permitted health claims.

The Commission has not yet completed its examination of health claims relating to botanicals and has not yet included them in the lists of permitted health claims.

- The examination and the requirement for authorisation by the Commission aim to ensure that the health claim is scientifically substantiated, thereby protecting consumers and human health. Therefore, health claims relating to botanicals cannot be used at this stage to promote food supplements - the CJEU explains.

In addition, claims that are subject to the transitional regime provided for in the 2006 regulation are supposed to be an exception, but according to the information provided by the Federal Court of Justice, this is not the case in this case. The claims in question were health claims relating to psychological functions, which were not subject to assessment and authorisation in Germany before the regulation came into force.

- In respect of such claims, an application for authorisation should have been submitted to the competent national authority before 19 January 2008, which Novel Nutriology failed to do - it concluded.

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