Maximum values in food supplements: the Noria-ruling has great impact

Imagine: an international manufacturer exports its food supplements to several countries. He may enter its products in one country, but in the other country a strict national regime prohibits the imports. How to deal with such a situation?  The recent judgement of the European Court of Justice in Noria gives an explanation.

The judgement concerns the French company Noria Distribution, that markets food supplements. Noria was prosecuted in France a few years ago for selling food supplements with a higher amount of minerals and vitamins than permitted by French law. However, Noria argued that the maximum amounts conflict with EU law. The free movement of goods and the principle of mutual recognition do now allow such national rules, says Noria.

The Court holds that the present French rules hamper the free movement of goods. After all, a food supplement manufactured lawfully in another Member State, cannot be marketed in France. Such national legislation can be justified if it meets certain criteria. One of those criteria is that the legislation provides for a procedure for placing food supplements on the market that are manufactured lawfully in a Member State, but contain a higher amount of nutrients than permitted by that legislation. Such a procedure must be readily accessible and should be completed within a reasonable time. Also, filing an appeal before the courts must be possible. As the French legislation does not meet this requirement, the violation of the principle of the free movement of goods is not justified.

The Court then addresses the question of how the maximum amounts should be established. The European Directive on food supplements allows maximum amounts to be established. However, what is considered safe maximum amounts must be based on scientific risk assessment, taking into account generally accepted scientific data and not purely hypothetical considerations. The Court has ruled similarly in Solgar Vitamin’s France et al.

The maximum amounts in France were determined solely on the basis of national scientific opinions, while international data were also available which allowed a higher amount of nutrients. According to the Court, these French opinions did not meet the requirement of “generally accepted scientific data”.

Only in the absence of reliable international scientific data, the assessment may solely be based on national data. The requirement of “generally accepted scientific data” does not demand that the data must be international. As long as they are reliable and make it sufficiently likely that there is a real risk to public health.

In short: are recent international scientific data available that are reliable? In that case the risk assessment cannot take place without involving this information. When only national data are available, the risk assessment may also be performed solely based on that. However, these data must be reliable. Noria was thus right.

Tamilla Abdul-Aliyeva