The Court of Justice of the European Union (CJEU) has further clarified the requirements governing health claims in the marketing of food supplements (CJEU, judgment of 17 September 2026 – C-721/24). Accordingly, statements concerning the frequency of consumption or the method of administration may also constitute health claims within the meaning of Regulation (EC) No 1924/2006. The Court also addressed the mandatory information required for claims concerning the reduction of disease risk.
Dispute over advertising for food supplements
The request for a preliminary ruling arose from a legal dispute between the companies V., on the one hand, and L. and B., on the other. The companies involved market food supplements, among other products, and are competitors.
The dispute concerned advertising claims relating to two products marketed by V. The advertisements appeared in journals aimed at healthcare professionals.
Statements concerning consumption and administration
One of the products was advertised, among other things, using the phrase “stable plasma levels”. Subsequent advertisements included statements according to which taking vitamin D daily was preferable to administering a higher dose all at once. This was expressed using the phrase “better daily than as a bolus”.
In addition, sublingual administration was described as the preferred method of use. Several advantages over oral administration were attributed to it, including faster absorption and the avoidance of the first-pass effect in the liver and enzymatic degradation in the stomach. According to the findings of the referring court, further advertisements allegedly suggested that taking the product could prevent an increase in the risk of mortality; the assessment under unfair competition law has not yet been conclusively determined and is a matter for the Appellationshof Brüssel (Brussels Court of Appeal).
Statement concerning cholesterol levels
The other food supplement was advertised using the statement “the solution for getting cholesterol levels under control”. At the same time, the advertisement stated that the product contained plant sterols.
The defendants in the main proceedings took the view that the statements infringed, among other provisions, Art. 10 and Art. 14(2) of Regulation No 1924/2006. On 9 June 2021, they brought an action for injunctive relief. The französischsprachige Unternehmensgericht von Brüssel (French-speaking Enterprise Court of Brussels) upheld the action by judgment of 6 April 2022.
Following further advertisements, a second action for injunctive relief was brought. By judgment of 5 April 2023, the court classified several statements as impermissible health claims and prohibited V., subject to a coercive fine, from continuing to use them or similar statements. V. appealed against both judgments. The Appellationshof Brüssel joined the proceedings and referred questions concerning the interpretation of EU law to the CJEU. Following the preliminary ruling, the referring court must decide the dispute.
Relevant requirements of the Health Claims Regulation
Regulation No 1924/2006 applies to nutrition and health claims made in commercial communications concerning the labelling, presentation or advertising of foods intended for supply to final consumers. These foods also include food supplements.
Under Art. 2(2)(1) of the Regulation, a “claim” means any non-mandatory message or representation that states, suggests or implies that a food has particular characteristics. Art. 2(2)(5) defines a health claim as any claim that states, suggests or implies that a relationship exists between a food category, a food or one of its constituents and health.
Under Art. 2(2)(6), a reduction of disease risk claim exists where it is stated, suggested or implied that the consumption of a food or food constituent significantly reduces a risk factor in the development of a human disease.
Three questions were therefore particularly decisive for the dispute:
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Can statements concerning the frequency of consumption or the method of administration constitute health claims?
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Must the statement required under Art. 14(2) of Regulation No 1924/2006 reproduce the wording of the Regulation verbatim?
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Must this statement also appear in written advertising if it is already included on the packaging?
Broad definition of a health claim
Particular characteristics not limited to ingredients
In the CJEU’s view, the “particular characteristics” of a food are not limited to its composition or contents. The term may also encompass the manner in which the food is consumed, provided that the representation creates the impression that these conditions are relevant to the characteristics attributed to the product.
Statements such as “better daily than as a bolus” or a reference to sublingual administration may therefore attribute particular characteristics to a food supplement. An express statement is not required for this purpose. It is sufficient if such an impression may be created in the mind of an average consumer who is reasonably well informed and reasonably observant and circumspect.
Relationship with health is decisive
According to the judgment, the relationship between a food and health relevant under Art. 2(2)(5) must be interpreted broadly. It encompasses not only statements promising an improvement in health as a result of consumption. It may also include statements according to which adverse health effects will not occur or will be less severe.
Statements concerning the frequency of consumption or the method of administration therefore fall within the definition of a health claim if their presentation establishes a relationship with a health-promoting effect or with the prevention or reduction of adverse health consequences.
Purely practical information must be distinguished from such claims. If a statement is limited to the conditions of consumption without expressly or implicitly addressing health effects, it does not constitute a health claim in that respect.
The CJEU also based this interpretation on the objectives of the Regulation. It is intended to ensure the proper functioning of the internal market while providing a high level of consumer and health protection. As a general rule, health claims should be authorised only after a scientific assessment of the highest possible standard, to be carried out consistently by the European Food Safety Authority.
Statement concerning multiple disease risks
Art. 14(2) of Regulation No 1924/2006 requires an additional statement for claims concerning the reduction of disease risk. It must indicate that the disease to which the claim refers has multiple risk factors and that altering one of these risk factors may or may not have a beneficial effect.
No verbatim reproduction required
According to the CJEU, the statement does not have to reproduce the wording of the Regulation verbatim. Unlike other provisions of the Regulation, the EU legislature did not prescribe mandatory wording in Art. 14(2).
However, consumers must be informed accurately, clearly and in an easily understandable manner about both aspects. The statement must therefore address both the existence of multiple risk factors and the fact that altering only one factor may or may not have a beneficial effect.
The purpose of the mandatory information is to qualify the scope of a claim concerning the reduction of disease risk. This is intended to prevent consumers from understanding it as a promise of therapeutic efficacy. Diet is merely one of several factors that may influence the occurrence of a disease.
In the case at issue, the CJEU, whose role in preliminary ruling proceedings is limited to interpreting EU law, considered that the statement that elevated cholesterol levels constitute a risk factor for cardiovascular diseases was not, subject to verification by the Appellationshof Brüssel, capable of conveying the information required under Art. 14(2) accurately, clearly and in an easily understandable manner; the final assessment of the facts and law is a matter for the Appellationshof Brüssel and has not yet been conclusively determined.
No repetition in written advertising if statement appears on packaging
The CJEU limited its examination of the third question to written advertising because the main proceedings concerned advertisements in journals aimed at healthcare professionals. According to its interpretation, the statement required under Art. 14(2) must primarily be included in the labelling of the product concerned. Only where there is no labelling must it be provided in the presentation or advertising.
The term labelling encompasses all words, particulars, illustrations or symbols referring to the food and placed on its packaging or accompanying documents. Information on packaging therefore forms part of the labelling.
If the statement required under Art. 14(2) already appears on the packaging of the food supplement, the judgment holds that it does not additionally have to be repeated in written advertising promoting sales. In this regard, the Court focused on the function of labelling: the mandatory information is intended to be available to consumers before they make their purchasing decision.
In the operative part of its judgment, the CJEU made no corresponding finding concerning the website. Its answer relates to the situation in which the required statement is already included on the packaging of the food supplement.
Key findings of the CJEU
The Court summarised its interpretation of the relevant provisions essentially as follows:
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Statements concerning the frequency of consumption or the method of administration of a food supplement are health claims if their presentation establishes a relationship with a health-promoting effect or with the prevention or reduction of adverse health effects.
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The statement required under Art. 14(2) of Regulation No 1924/2006 does not have to correspond verbatim to the wording of the Regulation. However, it must inform consumers accurately, clearly and in an easily understandable manner about both prescribed aspects.
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Written advertising containing a claim concerning the reduction of disease risk does not additionally have to include the statement if it already appears on the packaging of the food supplement.
The Appellationshof Brüssel will decide on the costs of the main proceedings. Costs incurred by other parties in submitting observations to the CJEU are not recoverable.
Significance for unfair competition law
The judgment makes clear that the classification of an advertising statement does not depend solely on its wording. The overall impression that the statement concerning the consumption, use or effects of a food supplement creates in the minds of consumers is also decisive. At the same time, the CJEU clarifies the content and placement of the mandatory information required for claims concerning the reduction of disease risk.
For legal questions concerning the assessment of health-related advertising under unfair competition law, MTR Legal assists companies by providing legal advice on unfair competition law.
