The matter at hand

Innova Vital marketed a nutritional supplement and sent, exclusively to doctors, a document with laudatory claims about this supplement. The Verband Sozialer Wettbewerb (an association against unfair competition) claimed before the referring court in Munich that the document contains health claims that are prohibited by Article 10(1) of the Nutrition and Health Claims RegulationRegulation No 1169/2011 of the European Parliament and of the Council of 25 October 2011 on the provision of food information to consumers.

The referring court had doubts as to whether the provisions of the Nutrition and Health Claims RegulationRegulation No 1169/2011 of the European Parliament and of the Council of 25 October 2011 on the provision of food information to consumers apply to advertising intended for professionals and asked the ECJ, in essence, whether Article 1(2) of the Nutrition and Health Claims RegulationRegulation No 1169/2011 of the European Parliament and of the Council of 25 October 2011 on the provision of food information to consumers must be interpreted as meaning that nutrition or health claims made in a commercial communication on a food which is intended to be delivered as such to the final consumer, if that communication is addressed not to the final consumer, but exclusively to health professionals, fall within the scope of that regulation.

The judgment of the ECJ

The ECJ first of all considers that “the concept of a ‘commercial communication’ within the meaning of Article 1(2) of [the Nutrition and Health Claims RegulationRegulation No 1169/2011 of the European Parliament and of the Council of 25 October 2011 on the provision of food information to consumers], must be understood as covering, inter alia, a communication made in the form of advertising foods, designed to promote, directly or indirectly, those foods”  (paragraph 29).

The ECJ continues by clarifying that “such a communication may also take the form of an advertising document which food business operators address to health professionals, containing nutritional or health claims within the meaning of that regulation, in order that those professionals recommend, if appropriate, that their patients purchase and/or consume that food”  (paragraph 30).

Since, according to the ECJ, it cannot be ruled out that the health professionals themselves may be misled by false, deceptive, or even mendacious nutrition or health claims, there is a risk that those health professionals forward, in all good faith, incorrect information on foods which are the subject of a commercial communication to final consumers with whom they have a relationship (paragraphs 44 and 45).

Furthermore, the ECJ holds that if the communication to professionals were not within the scope of the Regulation, “there would be a risk that the food business operators would circumvent the obligations laid down by that regulation, addressing the final consumer through health professionals, in order that those professionals recommend their foods to that consumer” (paragraph 46).

Consequently, the ECJ concludes that “Article 1(2) of [the Nutrition and Health Claims RegulationRegulation No 1169/2011 of the European Parliament and of the Council of 25 October 2011 on the provision of food information to consumers] must be interpreted as meaning that nutrition or health claims made in a commercial communication on a food which is intended to be delivered as such to the final consumer, if that communication is addressed not to the final consumer, but exclusively to health professionals, falls within the scope of that regulation” (paragraph 54).