The Court of Justice confirms that products that are objectively foodstuffs fall under the scope of the EU Nutrition and Health Claims Regulation

Eveline Van Keymeulen

On 23 November 2016, the Court of Justice of the European Union issued a judgment on the interpretation of Regulation (EC) No 1924/2006 on nutrition and health claims made on foods (case C-177/15). The Court ruled that a product that was marketed as a medicine before 1 January 2005 and as a foodstuff thereafter with (i) the same physical characteristics and (ii) the same trademark or brand name constituting a nutrition or health claim is exempted from the Regulation until 19 January 2022.

Legal background

Regulation (EC) No 1924/2006 on nutrition and health claims made on foods (NHCR) provides the framework for companies that wish to emphasise beneficial nutritional or health properties of foodstuffs (nutrition and health claims) in commercial communications. In particular, trademarks and brand names that qualify as nutrition or health claims must undergo the authorisation procedures set in the NHCR unless they are accompanied by a related authorised nutrition or health claim. Article 28(2) NHCR sets forth a temporary exemption for “products bearing trademarks or brand names [that constitute nutrition or health claims] existing before 1 January 2005” that do not comply with the NHCR, which can be marketed until 19 January 2022.  However, health claims cannot be used in beverages containing more than 1.2% by volume of alcohol.

Facts

The underlying proceedings stem from a dispute between Nelsons GmbH (Nelsons), on the one hand, and Ayonnax Nutripharm GmbH and Bachblütentreff Ltd, on the other. The proceedings concern Nelson’s preparations made from flowers (Bach flower remedies) with an alcohol content of 27% by volume marketed as alcoholic beverages under the EU trademark “Rescue” (Rescue remedies). Prior to 1 January 2005 and until 2008, Nelsons marketed Rescue remedies in Germany as medicines. In 2007, Nelsons registered “Rescue” as an EU trademark for foodstuffs. As of 2008, following a ruling of the Hamburg Higher Regional Court holding that ‘Bach flower’ remedies are not medicines but foodstuffs, Nelson marketed Rescue remedies as foodstuffs under the same trademark and without making any changes to their composition. Ayonnax Nutripharm and Bachblütentreff, which also market ‘Bach flower’ remedies in Germany, brought an unfair competition action against Nelson before the Munich I Regional Court. The action was mainly grounded on the fact that Nelson sold Rescue remedies (which are classified as food) accompanied by a health claim (Rescue – implying “rescue” from poor health) in violation of the NHCR. Proceedings reached the Federal Court of Justice (FCJ), which considered that the “Rescue” trademark constituted a health claim.  The FCJ therefore referred a request for a preliminary ruling to the Court of Justice (CJ) asking, among other things, whether a product marketed as a medicine before 1 January 2005 and as a foodstuff after that date under the same trademark or brand name and having the same characteristics is exempted from the Regulation until 19 January 2022 pursuant to Article 28(2) NHCR.

Findings of the Court of Justice

In the CJ’s view, the term ‘product’ in the Article 28(2) NHCR exemption refers only to foodstuffs bearing a trademark or brand name that qualifies as a nutrition or health claim. The term “food”, defined in the Food Law Regulation (Regulation No 178/2002) for the purposes of the NHCR, does not cover medicines. Therefore, Rescue remedies could not fall under the scope of the NHCR if they were medicines. For the Court, Rescue remedies were already objectively presented as foodstuffs before 1 January 2005, even if marketed as medicines.  Consequently, they are ‘products’ (i.e. foodstuffs) within the meaning of Article 28(2) NHCR. Further, Rescue remedies were ‘existing’ products bearing a trademark or brand name before 1 January 2005 as they had “the same substantive characteristics and [bore] the same trademark or brand name” already prior to that date. In view of this, the CJ ruled that Article 28(2) NHCR applies where “a foodstuff bearing a trademark or brand name was, before 1 January 2005, marketed as a medicinal product and then, while having the same physical characteristics and bearing the same trademark or brand name, as a foodstuff after that date”.

This post was originally co-authored by Patricia Carmona Botana.

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