03. Jun 16

EGC: Advertising featuring positive properties of dextrose misleading

In its ruling of March 16, 2016, the General Court of the European Union (EGC) confirmed that advertising for dextrose featuring health claims is not permissible (Az.: T-100/15).

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: Promotional health claims on the packaging of food products need to comply with the European Union’s so-called “Health Claims Regulation” (Regulation (EC) No 1924/2006). Notwithstanding this, advertising for dextrose featuring the positive properties of glucose is problematic, even if the claims are correct. A producer of dextrose sugar cubes recently had to experience this first hand.

The Health Claims Regulation regulates which nutritional and health claims are permissible on the packaging of food products. In this way, consumers are supposed to be protected from incorrect or misleading statements. The producer of dextrose sugar cubes had applied as early as 2011 for the approval of various claims concerning the positive properties of glucose. These included, among other things, statements such as “glucose contributes to normal energy metabolism” and “glucose supports physical activity”. The European Food Safety Authority (EFSA) confirmed the accuracy of these statements. Nevertheless, the European Commission refused to grant approval for these promotional statements in January 2015.

The Commission justified its decision stating that these health claims – irrespective of their accuracy – would send a contradictory and confusing signal to consumers by essentially encouraging them to consume sugar. For this reason, these statements could not be approved.

The company’s appeal against this decision was unsuccessful. The EGC confirmed the Commission’s decision. According to the generally accepted principles regarding nutrition and health, the average consumer ought to reduce his sugar consumption. The Court held that even if the health claims concerning the effects of glucose are true, they only represent the positive properties without making reference to the risks associated with the consumption of sugar. The EGC concluded that this is misleading to consumers and these statements could therefore not be approved.

Advertising is often a difficult balancing act for businesses, it being easy to commit infringements of competition law. Some of the possible consequences of this include formal written warnings, damages claims and injunction suits. Lawyers who are competent in the field of competition law can assist companies in fending off or enforcing claims arising from violations of competition law.

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