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CJEU: Impermissible advertising for glucose featuring true statements

July 2017

Even if health-related advertising claims are true, they may still mislead consumers and thus be impermissible. That was the verdict of the Court of Justice of the European Union (CJEU) (Az.: C-296/16 P).

A manufacturer of glucose products lodged a claim that was ultimately unsuccessful before the CJEU. The company had already applied in 2011 for permission to use various health claims such as “Glucose unterstützt die normale körperliche Betätigung” (glucose supports normal physical activity) and “Glucose trägt zu einem normalen Energiegewinnungsstoffwechsel bei körperlicher Betätigung bei” (glucose contributes to normal energy metabolism during physical activity).

Despite the European Food Safety Authority (EFSA) confirming a causal relationship between glucose intake and normal energy metabolism, the European Commission refused to grant permission in relation to these health claims. It justified its decision by stating that these health claims sent a contradictory and confusing signal to consumers, as they were being encouraged to consume sugar. It went on to say, however, that based on the scientific evidence both national and international bodies recommend consuming less sugar.

The company subsequently took action against the refusal to approve the statements. As was the case before the General Court of the European Union, the action was also unsuccessful before the CJEU. In its ruling of June 8, 2017, the CJEU confirmed the Commission’s assessment and the judgment at first instance, according to which it is not permissible to make health claims if these contradict generally accepted nutrition and health principles. According to these principles, consumers ought to reduce their sugar consumption. It was said that even if the health claims pertaining to the effects of glucose were accurate, they only presented its positive attributes without indicating the risks associated with consuming sugar. The Court held that this was misleading to consumers and the statements were therefore not permissible.

Following this recent ruling of the CJEU, we at GRP Rainer Rechtsanwälte would advise companies to not only ensure that health claims are verifiable in the context of advertising, but also consider whether the statements in question are consistent with the generally accepted evidence and toe the line with European health policy. Lawyers who are experienced in the field of competition law can offer advice as well as assist in enforcing or fending of claims arising from infringements of competition law.

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