The Court of Justice in Novel Nutriology has recently considered the legality of making health claims in respect of botanical substances.
Botanical substances are made from plants, algae, fungi or lichens and are widely used, for example in food supplements.
The general rule is that specific health claims may only be made where the claim has been authorised, appears on a list and any conditions of use are complied with. So-called general health claims which refer to non-specific benefits of a nutrient or a food for overall good health may only be made where they are accompanied by an authorised specific claim.
A health claim is any claim that states, suggests or implies that a relationship exists between a food category, a food or one of its constituents and health.
In the case claims were made about saffron extract (mood-enhancing) and melon juice extract (reducing stress and fatigue).
The stages leading to the authorisation of health claims include an evaluation by the European Food Safety Authority (EFSA) and the European Commission. However, this has not yet been concluded in respect of botanical substances, health claims are not included on any list of authorised claims and therefore, in principle, health claims for botanical substances may not be used.
However, the CJEU observed that nevertheless it is possible to lawfully use health claims for botanical substances where the transitional provisions in Article 28 of Regulation 1924/2006 on nutrition and health claims made on foods apply.
The claims in question amount to health claims ‘describing or referring to … psychological and behavioural functions’ (Article 13 (1) (b)). The transitional provisions state that where such claims have not been the subject of evaluation and authorisation, they may be used but only where an application for authorisation had been submitted before 19 January 2008 (and all other requirements have been complied with).
In the case in question, an application in respect of one of the claims had been made after that date and in respect of the other claim no application had been made.
The transitional provisions could therefore not be invoked and as neither claim had been evaluated and authorised, they could not be used.
The case makes clear that in respect of botanical claims, they may be used if the applicable transitional provisions apply, but if they do not apply, such claims may not be used.
Novel Nutriology GmbH v Verband Sozialer Wettbewerb eV (Case C-386/23, 30 April 2025)
This article is provided for information only and does not constitute legal advice. Formal legal advice should always be obtained before taking or refraining from taking any action.
Ian Thomas can be contacted at ian@ianthomasassociates.com
He also practises from Gough Square Chambers, London – ian.thomas@goughsq.co.uk