Europe: Case law on reference to general, non-specific benefits
The Court of Justice of the European Union published a judgment on 30 January 2020 (C-524/18) on the interpretation of Article 10(3) of Regulation No 1924/2006 concerning reference to general, non-specific benefits and the concept of ‘accompanying’ a specific health claim.
The judgment concludes that the requirement which this article lays down that any reference to general, non-specific benefits of the nutrient or food must be accompanied by a specific health claim included in the lists provided for in Articles 13 or 14 of that regulation, is not satisfied where the packaging of a food supplement contains a reference to general, non-specific health benefits of a nutrient or food on the front of the packaging, whereas the specific health claim intended to accompany it appears only on the back of that packaging and there is no clear reference, such as an asterisk, between the two.
This judgement sets more precisely that :
- The requirement of ‘accompanying’ must be interpreted as requiring not only that the specific health claim should specify the content of the health claim worded in general terms, but also that the location of those two claims on the packaging of the product must enable an average consumer who is reasonably well informed and reasonably attentive and circumspect to understand the link between those claims.
- the visual dimension of the requirement of ‘accompanying’ should be understood as referring to the immediate perception by the average consumer, reasonably well informed and reasonably attentive and circumspect, of a direct visual link between the reference to general, non-specific health benefits and the specific health claim, which requires, in principle, spatial proximity or immediate vicinity between the reference and the claim.
- However, in the particular case where the specific health claims do not appear in their entirety on the same side of the packaging as the reference which they are intended to substantiate due to their large size or length, it should be considered that the requirement for a direct visual link could be satisfied, exceptionally, by means of an explicit reference, such as an asterisk, where that ensures, in a manner that is clear and perfectly comprehensible to the consumer, that, in spatial terms, the content of the health claims and the reference match. It is for the national courts to verify and determine, in the light of all the circumstances of the case, whether the requirement of visual proximity arising from Article 10(3) of Regulation No 1924/2006 is satisfied by the use of a linking asterisk.
In conclusion, according to the CJEU, there is a need for spatial proximity between the reference to general, non-specific benefits effects and the specific claims justifying it, however the use of an explicit reference, such as an asterisk, may be acceptable on a case by case basis (due to the large size or length of specific claims).