Watch out! Judgment on Claims Regulation and communication to healthcare professionals
It has been quite a turbulent year for food law. After the important Teekanne-judgment on packaging and consumer deception the European Court of Justice delivers an interesting judgment: Innova Vital. We do not need a crystal ball to predict that you will be hearing this name a lot more in the future. The European Court of Justice ruled that the strict rules from the Claims Regulation also apply to commercial communication from food firms to health professionals. A judgement with far-reaching consequences for the food industry.
Until this judgment the Netherlands (sided by some other member states) took a different standpoint. It was assumed that communication of health claims towards a doctor or any other professional in the health sector was excluded from the scope of the Claims Regulation. See for example the Guidance document of the KOAG-KAG. Communication that is addressed to the final consumer (like flyers) already fell within the scope of the Claims Regulation. The European Court of Justice takes a stricter approach in this judgment.
The Claims Regulation is not about whether the communication is intended to reach the consumer, but whether the product is intended for the consumer. In other words: it is not about to whom the communication is provided, but what the communication is about.
This is why the Court rules that even communication exclusively directed to health professionals should comply with the rules of the Regulation. Why? Because, according to the Court, healthcare professionals do not always have access to specific and up-to-date knowledge to check the validity of every claim. Even healthcare professionals can be misled, which enhances the risk on forwarding incorrect information to the consumer. Additionally these professionals have a special relationship of trust with their patients, which means that these professionals can exercise significant influence on these consumers. Also if the Claims Regulation would not apply to this relationship, this would open the doors to circumvention of the obligations from the Claims Regulation by providing inadmissible claims to these professionals.
Does this mean that there are no options left to communicate with health care professionals? No: the European Court of Justice points out that (of course) it is allowed to provide objective information about scientific developments and publications to health care professionals. This should be done in professional language and it should be of a non-commercial nature. In other words: the Claims Regulation is about advertising, not about information. This distinction however is not black-and-white, and will therefore undoubtedly be a hot topic of discussion.
The judgment itself does not explicitly state this applies as such to professionals that are not healthcare professionals. So for example b-to-b communication to the distributor. The crucial question is: does communication to these professionals, who may not have a special relationship of trust with the consumer, also fall within the scope of the Claims Regulation? And what exceptions will apply in that case? Taken literally, this judgment does not apply to this type of b-to-b communication. We will be hearing ánd writing about this topic and judgment a lot more. That’s for sure!
Sarah Arayess & Ebba Hoogenraad