B2B communication with claims? Beware!

The recent Court of Justice ruling Innova Vital gives us another (future) classic: the strict rules in the Claims Regulation are also applicable to commercial communication from food businesses to healthcare professionals. This means: B2B communication. That is a huge problem for businesses, because until now thoughts on this were very different in the Netherlands (and in a lot of other Member States). It was assumed that communication involving (health) claims towards a physician or other professional in the field of public health does not fall under the scope of the Claims Regulation. See, for example, the Guideline Document to the Claims Regulation by the KOAG/KAG. Communication that is ultimately intended to reach the consumer (such as brochures) already fell within the scope of the Claims Regulation. In this judgment the  Court takes it a step further: The Claims Regulation is not about whether the communication is intended for the consumer, but whether the product is intended for the consumer.

The reason for this? Healthcare professionals do not continuously have specific and up-to-date knowledge in order to check every claim for accuracy. Healthcare professionals can also be misled, meaning they run the risk of giving incorrect information to the consumer.

Does this mean the door is closed entirely? No: obviously objective information about scientific developments may be given to healthcare professionals. However, ‘jargon’ must be used and the communication may not be commercial.

The decision does not explicitly mention whether all this applies one on one to professionals who do not work in healthcare. B2B communication to the distributor for example. This remains an open question. We are going to be hearing and writing a lot more about this. That much is certain!

Sarah Arayess