The date of delivery of the judgment of the Court of Justice of the European Union (CJEU) in Case C-19/15 on the applicability of the Nutrition and Health Claims Regulation (NHC Regulation) to B2B communications has been set for 14 July 2016. It is likely that the EU judges will follow the Advocate General’s opinion and rule that the NHC Regulation is not only applicable to commercial communications addressed to consumers (B2C) but also applicable to commercial communications addressed to professionals (B2B).
Update: Scope of the NHC Regulation uncertain
Union rules on nutrition and health claims have been established by Regulation (EC) No 1924/2006 (the NHC Regulation).
The scope of application of the NHC Regulation is defined in its Article 1(2):
“This Regulation shall apply to nutrition and health claims made in commercial communications, whether in the labelling, presentation or advertising of foods to be delivered as such to the final consumer, including foods which are placed on the market unpacked or supplied in bulk. (…)”
One of the established principles under the NHC Regulation is that health claims relating to foods are prohibited, unless expressly authorized by a EU Regulation. A public EU Register of Nutrition and Health Claims lists all the authorised health claims, as well as their conditions of use, to ensure harmonisation and full transparency for consumers and food business operators in the EU.
In a recent dispute before the Munich Regional Court, the question arose whether the rules set forth in the NHC Regulation were only applicable to communications addressed to the final consumer or were also applicable to B2B communications (for example, commercial communications from a manufacturer of food supplements to doctors).
The opinion of the national governments on this question varies among Member States. The Belgian authorities had issued an administrative circular dating back to 2013 clarifying their position on the topic (ministerial circular of 27 September 2013).
According to the Federal Ministry of Public Health, the NHC Regulation only applies to communications addressed to the final consumers and not to communications exclusively addressed to professionals or communities (distributors, resellers, doctors or schools, cafeteria, restaurants, etc.). They however nuanced their interpretation as B2B communications would only be excluded from the scope of the NHC Regulation if the commercial communications are not transmitted to the final consumer in a commercial context, or if they are not freely accessible to him, for example, via the Internet.
CJEU to clarify the scope
The Munich Regional Court – confronted with that question – stayed the proceedings and referred the interpretation issue to the CJEU (Case C-19/15).
The Advocate General delivered his opinion on 18 June 2016. His analysis mainly focuses on the letter of Article 1(2), which in fact does not require that the commercial communication be addressed to the final consumers exclusively.
The Advocate General notes in particular that, according to Article 1(2), there are only two requirements for the NHC Regulation to apply:
- the communications in question must relate to foods to be delivered to a final consumer ; and
- the communications must be of a commercial nature.
He concludes accordingly: “It is therefore the product itself, and not the communication of which it is the subject matter, which must necessarily be aimed at consumers.”
Such analysis also takes into account the dual objective of the NHC Regulation, i.e. ‘ensur[ing] the effective functioning of the internal market’, by, inter alia, ‘creating equal conditions of competition’ for product promotion and providing ‘a high level of consumer protection’. In that regard, the Advocate General thus considers that excluding B2B communications from the scope of application of the Regulation would deprive it of part of its practical effect: “In practice, for food businesses, the possibility of circulating their claims among consumers through professionals could constitute an easy means of circumventing the strict requirements of Regulation No 1924/2006. In any event, as a consequence of such an interpretation, the proper functioning of the internal market may be impaired and the level of consumer protection may be reduced, despite the fact that these are objectives pursued by that regulation.”
NHC Regulation likely to apply to B2B communications: Yes, BUT…
The Advocate General’s final conclusion is that communications of a commercial nature relating to food products intended to be sold to the final consumers, although exclusively addressed to professionals, should be included in the scope of application of the NHC Regulation insofar as they are targeted indirectly at consumers via the private sector.
The opinion of the Advocate General is not final but likely to form the basis of the CJEU’s judgment, scheduled to be delivered on 14 July 2016.
If the CJEU follows the Advocate General’s opinion, this could have massive repercussions on the industry, especially in Belgium where a much less restrictive position was advanced by the authorities and applied by the economic operators.
Food supplements manufacturers in particular would have their hands tied when it will comes to explaining the properties and advantages of their products to other businesses, including resellers and doctors.
The judges might decide to only partially endorse the Advocate General’s opinion and set jurisprudential limits to the application of the NHC Regulation to B2B communications. This, however, has yet to be seen. Final decision coming soon.