The judgement in Dr. Willmar Schwabe GmbH & Co. KG v Queisser Pharma GmbH & Co. KG was published on 30 January 2020 looking at the meaning of the word ‘accompanying’ under Article 10(3) of EU Nutrition and Health Claims Regulation 1924/2006 [the Regulation.] This states that general health claims should always be ‘accompanied’ by a specific authorised health claim.
The judgement is generally supportive of the Attorney General’s earlier opinion (reported here) and allows a wider interpretation of the word 'accompanied' from that strictly meaning next to or alongside; subject to the interpretation of the reasonable consumer and the individual national court. For example, the use of asterixes was found to broadly promote the connection between the two claims.
There were 2 questions to be decided:
- Is it “accompanied” even if the two claims are on different sides of an outer packaging and, although the claims are clearly related to the reference in terms of content, the reference does not contain a clear indication, marked with an asterisk?
- whether references to general, non-specific benefits of the nutrient or food for overall good health or health-related well-being within the meaning of Article 10(3) of the Regulation must be justified by scientific evidence within the meaning of Article 5(1)(a) and Article 6 of the Regulation.?’
The first question was key in relation to deciding on the interpretation of 'accompanied' under the Regulation.
Key points of reasoning in the judgement to be aware of were as follows:
- the location of those two claims on the packaging of the product must enable an average consumer who is reasonably well informed and reasonably attentive and circumspect to understand the link between those claims. Accordingly, the concept of ‘accompanying’ within the meaning of that article, must be interpreted as including both a substantive and a visual dimension.
- the location, in visual terms, of the various elements on the packaging of a given product is a factor to be taken into account in order to assess whether the ‘accompanying’ requirement can be considered to be met.
- the visual dimension of the requirement of ‘accompanying’, within the meaning of Article 10(3) of the Regulation, should be understood as referring to the immediate perception by the average consumer, reasonably well informed and reasonably attentive and circumspect, of a direct visual link between the reference to general, non-specific health benefits and the specific health claim, which requires, in principle, spatial proximity or immediate vicinity between the reference and the claim.
- However, in the particular case where the specific health claims do not appear in their entirety on the same side of the packaging as the reference which they are intended to substantiate due to their large size or length, it should be considered that the requirement for a direct visual link could be satisfied, exceptionally, by means of an explicit reference, such as an asterisk, where that ensures, in a manner that is clear and perfectly comprehensible to the consumer, that, in spatial terms, the content of the health claims and the reference match.
- It is therefore for the national courts to verify and determine, in the light of all the circumstances of the case, whether the requirement of visual proximity arising from Article 10(3) of the Regulation is satisfied by the use of a linking asterisk.
In the light of this, if a general health claim and specific authorised health claim were on two different sides of the packaging, not within the same field of vision, and there is no clear reference, such as an asterisk, between the two, they would not be considered to fulfil the criteria to be 'accompanied'. However, if there was a clear link, such as an asterix, it would be up to the national courts to determine if this was satisfied taking into account all the individual circumstances of the packaging.
The second question looked at the making of general non-specific health claims themselves and if these should be scientifically substantiated. The court agreed with the Advocate General on this in that if the specific health claim was substantiated this was sufficient. “Article 10(3) of Regulation.. must be interpreted as meaning that references to general, non-specific benefits of the nutrient or food for overall good health or health-related well-being must be justified by scientific evidence within the meaning of Articles 5(1)(a) and 6(1) of that regulation. To that end, it suffices for those references to be accompanied by specific health claims included in the lists provided for in Article 13 or Article 14 of that regulation.”
A common sense and practical approach to the meaning and intention of the legislation that broadly supports the earlier Attorney General's opinion.
Those in control of food packaging and labelling should ensure they are aware of a clear link needing to be observed between any general health claim and the specific authorised health claim - both substantive and visual. If the claims cannot be in the same field of vision on packaging it is important to ensure this is linked by way of an asterix or other similar measure. Additionally, a general health claim should be supported by the specific health claims in a manner that is sufficiently clear for the consumer to assess the two together; and any other voluntary information on the packaging should not confuse or mislead the average consumer, who is reasonably well informed, and reasonably observant and circumspect (e.g. a plethora of voluntary claims may make it unclear for the consumer to grasp the relation between the general and specific health claims.)
These will be matters for the national court to consider in the light of the facts of any case.