On 18 July 2013, the Court of Justice of the European Union ("CJEU") handed down its judgment in case C-299/12, in which it clarified three issues concerning the scope and interpretation of Regulation EC n° 1924/2006 concerning nutrition and health claims made on foods:
1. First clarification: interpretation of term ‘reduction of disease risk claim'
The Nutrition and Health Claims Regulation defines a ‘reduction of disease risk claim' as ‘any health claim that states, suggests or implies that the consumption of a food category, a food or one of its constituents significantly reduces a risk factor in the development of a human disease' (Article 2(2)(6)). The CJEU now clarified that, in order to be considered a ‘reduction of disease risk claim', a health claim does not have to state expressly that the consumption of a category of food, a food or one of its constituents ‘significantly' reduces a risk factor in the development of a human disease. It suffices that the claim gives such impression to the average well-informed reasonably observant and circumspect consumer.
2. Second clarification: interpretation of products ‘bearing trademarks or brand names'
The Nutrition and Health Claims Regulation provides that products bearing trademarks or brand names existing before 1 January 2005 which do not comply with the Regulation, may temporarily continue to be marketed, until 19 January 2022 (Article 28(2)). In this judgment, the CJEU clearly defined (and strictly limited) the term products ‘bearing trademarks or brand names': a commercial communication appearing on the packaging of a food may constitute a trademark or brand name, within the meaning of Article 28(2), provided that it is protected by the applicable legislation as a trademark or trade name. This will be something for the national courts to ascertain, having regard to the circumstances of each case. The scope of the transitional provision is thus strictly limited to trademarks and trade names which are expressly protected as such by national legislation.
3. Third clarification: scope of transitional exception for products bearing trademarks or brand names existing before 1 January 2005
Concerning the temporal scope of the same provision of the Nutrition and Health Claims Regulation (Article 28(2)), the CJEU clarified that this provision must be interpreted as referring only to foods bearing a trademark or brand name which must be considered a nutrition or health claim within the meaning of that regulation and which, in that form, existed before 1 January 2005. This is important because only foods falling into this category may still continue to be marketed until 19 January 2022.
