Authors: Kristina Vilkienė, Assistant Attorney-at-Law in METIDA, Vilius Martišius, Attorney-at-law at METIDA
Today’s consumers are often introduced with food values of a product either in its advertising or in its labeling. The majority of costumers are possibly aware of the main purposes of food, such as the provision of nutritional benefits or maintenance of health. Yet, how can one be so sure that all the statements about the food products are accurate and based on real facts?
A nutrition claim is such that either implicitly or explicitly lists the food values in terms of its calories, nutrients or other substances. For instance, ‘low calorie’ or ‘fat free’ might be good examples of these claims. A health claim is such that either implicitly or explicitly refers to the relation of a food product or its certain ingredients to health.
In December 2006, the European Parliament and the Council established a regulation on nutrition and health claims made on food (No 1924/2006). Within the regulation general rules on the use of nutrition and health claims on food were adopted by allowing to use claims only in such nature as stated in a nutrient profile. A nutrient profile defines which nutritional requirements must a food product meet in order it could be described by an appropriate nutrition or health claim.
When the Council adopted 222 nutrition and health claims on food products in May 2012, food companies were instructed to change their products’ advertising and labeling in a six month period. From December 2012, only the claims listed in the White Paper on Food Safety proposed by the Commission or the ones that will be approved in the near future by the Commission are allowed to be used in the food labeling. It is important to note, that there must be some substantial grounds for declaring any food product as healthy and nutritional, therefore, basic understanding or well-known facts about the product are insufficient arguments.
For example, a claim that a chewing gum is ‘a sugar-free chewing gum which helps to neutralize plaque acids’ can only be made where the product contains no more than 0,5 g of sugars per 100 g or 100 ml, as this is the main condition of a ‘sugars free’ nutrition claim adopted in the Regulation. In addition to this, a consumer must be informed clearly that the effects could be felt only after the gum has been chewed for 20 minutes.
Some of the claims about food items that are used daily were dismissed by the Commission. For instance, a claim ‘olive oil is better for heart’ had to be banished, as it did not meet the conditions of the Regulation, for this statement was and is not supported by any scientific research. Similarly, other claims, such as ‘honey and its antioxidants relieve sore throat’ were dismissed based on the same arguments.
Such claims, where food values are pointed out, are not only used in marketing or advertising, but are also registered within some trademarks. The regulation provides a transition period for changing the rules on use of claims in the market if efforts to control the information flow over the consumers overlap with owners’ exclusive trademark rights gained during the creation or registration of the trademarks and paying the fees for such processes. Products bearing trademarks or brand names existing before 1 January 2005 inconsistent with the Regulation may continue to be marketed until 19 January 2022. After this period the same provisions of the Regulation must be applied.
In 18 June 2012, Nejvyšší správní soud (Czech Republic) applied to the Court of Justice of the European Union for the preliminary ruling from GREEN – SWAN PHARMACEUTICALS CR, a.s. v Státní zemědělská a potravinářská inspekce (Case C-299/12) on the claims related to the product quality evaluation as amended by the Regulation and on the transitional provision. The Court is asked to decide if the health claim: ‘The preparation also contains calcium and Vitamin D3 which help to reduce a risk factor in the development of osteoporosis and fractures’ is a claim about the reduction of the risk of the disease within the meaning of Regulation, even though there is no explicit implication in the claim that the usage of that preparation would definitely contribute to the decreasing of the disease. The Court decision would help to explain which claims may be regarded as claims within the meaning of Regulation. Also, the decision is important for trademarks applied to the transitional provision, since the Court is asked to decide whether the concept of trademark and brand name within the meaning of Regulation includes a commercial information on the package of the product. If a positive preliminary ruling is received from the Court, the provision of transition period would be significantly extended. The court is also requested to clarify which food products could be interpreted to refer to the transitional provision. In other words, it is requested to decide if the transitional provision could be applied to all the food products existed prior to 1 January 2005 or only to those food products that are labeled with trademarks or brand names that had existed before that date.
Thus, food companies are more often compelled to consider their new marketing strategies or presentation of food values on their products, as the six month period when product’s advertising and labeling have to be changed is coming to an end.