Health Claims on Foods - wide interpretation of the term ‘accompanying’

Health and Nutrition Claims Regulation 1924/2006 sets out strict conditions for the making of health claims on foods.  General, non-specific health claims, such as 'good health' are only permitted if they are 'accompanied' by 'specific' authorised health claims (Article 10(3).) The requirements underlying the making of general health claims have recently been subject to further clarification.

When assessing whether general health claims are accompanied by specific health claims, it must be considered: 
1. Whether the specific health claims have been authorised; 
2. Whether the specific health claims 'support' the general health claims; and
3. Whether the relationship between the general and specific claims may be discerned by an average consumer who is reasonably well informed, and reasonably observant and circumspect.
4. Further, the Commission Implementing Decision 2013/63/EU adopted guidelines for the implementation of health claims laid down in Article 10. The Guidelines state in Section 3(1) that ‘for the purposes of Regulation No 1924/2006, the specific authorised health claim accompanying the statement making reference to general non-specific health benefits, should be made ‘next to’ or ‘following’ such statement’.

The first 3 requirements were matters to be decided on a case by case basis by the national court; however the issue of the meaning of 'accompany' has been recently the subject of an EU Attorney General's opinion. This is an important matter because how requirements needed to be translated on to packaging and labelling was not certain i.e. whether it should include being in the same field of vision or not.

EU case C-524/18  Attorney General Hogan in opinion delivered on 12 September 2019 considered the wording of the Regulation itself should be considered by way of its' normal interpretation, and that the guidance was, in his view, overly restrictive.

"The issue must be determined exclusively by reference to the actual words of Article 10(3). Narrow and fine though the distinction might be, the word ‘accompany’ is nonetheless somewhat broader and more expansive than the words ‘next to’ or ‘following’ as used in the Guidelines. One could thus in everyday conversation speak, for example, of a letter ‘accompanying’ a gift, even though the letter might be in a sealed envelope and the gift itself separately wrapped." (Attorney General Hogan) 

Therefore, the use of the word “accompany” would suggest that it is sufficient that the specific health claim(s) are prominently displayed elsewhere on the packaging. It is not necessary that the specific health claims are placed next to, or follow, or are otherwise immediately adjacent to the general health claims. Nor does Article 10(3) contain any requirement that the general and the specific health claims be linked in some way, such as by an asterisk. It is instead sufficient that the specific health claims are given sufficient prominence such that they are accessible and can be read by the consumer.

Comment

A common sense and practical approach to the meaning and intention of the legislation that clarifies this for food producers.

Those in control of Food packaging and labelling should however always bear in mind that a general health claim should be supported by the specific health claims in a manner that is sufficiently clear for the consumer to assess, 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.

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