In the interest of consumer protection food labelling is strongly regulated. For instance, health-related and nutrition-related statements for food are covered by regulation (EC) 1924/2006 (the so called Nutrition and Health Claims Regulation, NHCR). The NHCR defines the term 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” (Art. 2 (2) No. 5 NHCR). The courts regularly apply a broad interpretation. For example, the ECJ decided that the indication “easily digestible” for a wine with reduced acid content constitutes a health claim in the sense of the NHCR (ECJ decision of September, 6 2013 – C 544/10). The NHCR stipulates a prohibition of health claims for food with a reservation for authorization (cf. Art. 10 (1), NHCR).
Generally, the NHCR covers trademarks and brand names, as far as those names can be considered nutrition or health claims. However, with Article 28 (2) NHCR the regulation comprises a transitional provision with a relatively long grace period for existing trademarks. In particular, products with trademarks or brand names existing before January 1, 2005, which, however, do not comply with the NHCR may still be marketed until January 19, 2022. So far it appeared questionable, if this regulation only applies to foods bearing a corresponding trademark or brand name already before January 1, 2005, or if the regulation also covers the general product-related use of trademarks or brand names which already existed before January 1, 2005.
In the context of a ‘Request for a Preliminary Ruling’ the European Court of Justice (ECJ) now had the opportunity to also address the interpretation of Article 28 (2) NHCR (decision of July 18, 2013, C-299/12, see third question referred). The underlying case related to the marketing of a nutritional supplement which had been on the Czech market already before January 1, 2005. The product had been marketed with a statement that “the preparation also contains calcium and vitamin D3, which help to lower a risk factor in the development of osteoporosis and fractures” on its packaging. The company marketing the product inter alia took the position that the transitional regulation of Art. 28 (2) NHCR should be applied to the nutritional supplement, as the regulation relates to products as such and not to trademarks or brand names designating those products. The ECJ did not follow this opinion. According to the ECJ, Article 28 (2) NHCR only applies to foods bearing a trademark or brand name which are considered a nutrition or health claim in the sense of the HCR and which, in that form, existed before 1 January 2005.
Accordingly, the ECJ interprets the transitional provision of Article 28 (2) NHCR restrictively. This needs to be kept in mind when using existing trademarks. Caution should be exercised in particular with respect to subsequent recipe changes for foods designated with existing trademarks, which have not existed “in that form” before January 1, 2005.