What are the consequences of this milestone decision of the Court of Justice of the European Union for your communication strategy?

The essentials

  • In a ruling issued today, the Court of Justice of the European Union holds that B2B commercial communication falls within the scope of Regulation (EC) No 1924/2006 on nutrition and health claims
  • In light of the Court's ruling, careful review of existing and future B2B communication is advised

Background of the case

Back in 2015, in a dispute between a German association protecting the commercial interests of its members and a company selling a nutritional supplement, concerns were raised regarding some statements made in advertising mail sent by the supplements company exclusively to doctors. A request for a preliminary ruling was filed to the Court of Justice of the European Union by the Landgericht München I (Munich Regional Court I) regarding the interpretation of Article 1(2) of Regulation (EC) No 1924/2006 on nutrition and health claims made on foods (hereafter, the "NHC Regulation").

The Court of Justice was called upon, for the first time, to determine whether the requirements under the NHC Regulation apply to nutrition and health claims made in commercial communications on foods for sale to final consumers, if such communications are addressed not to those consumers but exclusively to (healthcare) professionals.

Position of the parties

Innova Vital claimed that commercial communications sent exclusively to professionals should not be considered to be governed by the provisions of the NHC Regulation. By contrast, both the Greek and French Governments and the Commission submitted that the scope of the Regulation should cover such a case.

Opnion of the Advocate General

In his opinion released on 18 February 2016, Advocate General Saugmandsgaard Øe shared the latter view, based on a teleological and contextual interpretation of the NHC Regulation.

According to the AG, the NHC Regulation pursues the dual objective of ‘ensur[ing] the effective functioning of the internal market’ and providing ‘a high level of consumer protection’, primarily by enabling consumers to make informed dietary choices thanks to objective information and based on evidence. Such objectives require a broad interpretation of the scope of application of the NHC Regulation.

The AG considered that healthcare professionals generally influence consumers significantly and they are, in principle, better informed than the average consumer. However, it cannot be ruled out that they themselves may be misled by claims. In practice, they are not able to have at their disposal at all times all the up-to-date expertise necessary to evaluate all foods and any kind of claim.

Furthermore, even in cases where the consumers themselves do not receive the communication containing claims covered by the NHC Regulation, they are in fact the persons at whom that commercial communication is indirectly aimed, given that the food which is the subject of that communication is theoretically intended to be sold to those consumers, and not to the professionals who have received the advertising mail. In such a case, the latter are mere intermediaries who are contacted by a food business precisely because they are capable of promoting the product that it is selling by passing on the commercial information concerning that product to potential buyers, and even recommending that they purchase the product.

That is the reason why the Advocate General stated that Article 1(2) of the NHC Regulation must be interpreted as meaning that it is applicable where nutrition or health claims are made in commercial communications which, although addressed exclusively to professionals, are in practice aimed indirectly at final consumers.

Findings of the Court

In its decision rendered today, the Court of Justice followed its AG's opinion and notably stated that in a case such as that in the main proceedings, the document containing the allegations is not to be submitted as such to the final consumer, but is sent to health professionals who are implicitly invited to recommend the food covered by the claims to that consumer (paragraph 51 of the judgment).

Next steps and consequences

It is for the German Court to make a final decision in the principal dispute, but it is now clear from the European Court's preliminary ruling that commercial communications must be scrutinized in light of the nutrition and health claims Regulation, even when such communications are directed at professionals only. It needs to be remembered however that recital 4 of the NHC Regulation explicitly precludes the application of the Regulation to ‘non-commercial communications and information in the press and in scientific publications'. Today's ruling of the Court does indeed not put that principle into question.

The factual context in which the information is dispatched, and the intended use of such information, will thus play an important role in the assessment that will now need to be made of each B2B commercial communication relating to food products.