A consistently broad interpretation of ‘health claim’ emerges in Europe

By Dr Manja Epping and Steffen Wirsing

A decision recently handed down by the German Federal Court of Justice (Bundesgerichtshof – BGH) has confirmed the broad interpretation of the term ‘health claim’ in the context of Regulation (EC) No 1924/2006 on nutrition and health claims made on foods (the ‘Health Claims Regulation’) and a strict application of the regulation when it comes to exceptions.

The Health Claims Regulation lays down harmonised rules across the EU for the use of nutrition claims such as ‘low fat’ or ‘high fibre’ or health claims such as ‘reducing blood cholesterol’. A health claim is defined as any claim that states, suggests or implies that a relationship exists between a food category, a food or one of its constituents and health. Food business operators are not free to use any health claim for marketing their food products. Only health claims listed on the Community list adopted by the European Commission based on generally accepted scientific evidence are permitted. If a food business operator desires to use an unlisted health claim, it may apply for the inclusion of the claim on the approved list.

In the present BGH case, a producer of infant nutrition had marked a baby milk product with its trademarks ‘Praebiotik + Probiotik’ as well as with the slogan ‘Praebiotik + Probiotik with natural lactic acid cultures — Praebiotik for the support of a healthy intestinal flora’. The BGH considered both declarations as health claims…

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