Off to the Court of Justice: medical claims on food products

Last summer, three of our clients attended an extensive hearing before the Council of State, which addressed the fundamental question of the legal framework under which a (prohibited) medical claim regarding a food supplement should be assessed. Is the NVWA then permitted to impose a fine as if it were a medicinal product, subject to the very high fines applicable to medicinal products? Or does the infringement simply fall under food legislation, with much lower fines? The ruling was eagerly awaited. The Council of State did not side with the NVWA. Instead, it referred the matter to the Court of Justice for clarification on which rules apply. If a product is clearly a food supplement, but advertising claims state that it helps against a disease, does that automatically make it a medicinal product? What criteria apply in such cases? And what about reviews on a website? We have provided input to the Council of State on behalf of the three clients regarding the draft questions for clarification to the Court of Justice. The next step in this process has now been taken: the Council of State issued the referral decision, setting out the final questions for interpretation, and will forward the file to Luxembourg. Ultimately, this will result in a landmark ruling from the Court of Justice that will set the standard for the entire sector. 

Please note! In the meantime, the NVWA is unfortunately continuing with its old practice of imposing heavy fines for medicinal claims if a company, unexpectedly, makes a medical claim regarding a food product, including a food supplement. Several judges have already rejected the NVWA’s approach and ruled that food legislation applies. See our newsletter of July 2022 and also our article from October 2024. If your company receives such a fine, it makes sense to seriously consider to file an official objection with the NVWA (in time!). Only then can you preserve the possibility of recovering the fine if the Court of Justice ultimately rules in your favor.

Want to know more? Read our article in VMT (in Dutch) or send us a message.

The Court of Justice proceedings for Holland & Barrett, Gezondheid aan Huis and Super Nature Products are being handled by Ebba Hoogenraad, Lisanne Steenbergen and Myrna Teeuw