Opinion of the Advocate General — ECLI:EU:C:2019:727
Date: 2019-09-12
Language of the case: German
Subject matter: Agriculture and Fisheries;Foodstuffs;Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Germany

summary of some of the constituents of the food and the effects thereof, which did 
not allow the identification of the health benefits possessed by each specific 
nutrient. For this reason the consumer also would not attribute all of the lauded 
effects to the constituent ‘zinc’, and as a result this is also vague and in this 
respect too — and thus as a whole — involved a non-specific claim. 
21 bb)  That assessment is not vitiated by any error of law. 
22 (1)  In accordance with the settled case-law of the Federal Court of Justice, 
references to general, non-specific benefits of the nutrient or food on the health in 
general or health-related well-being within the meaning of Article 10(3) of 
Regulation (EC) No 1924/2006 likewise constitute health claims within the 
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meaning of Article 2(2)(5) of that Regulation. However, on account of their 
general and non-specific formulation, such claims cannot be the subject of an 
authorisation procedure, unlike the (specific) health claims within the meaning of 
Article 10(1) of the Regulation. In order to draw a distinction between specific 
and non-specific health claims, it depends whether a direct interaction between a 
food category, a food or one of its constituents and a human bodily function is 
produced with the claim, the scientific substantiation of which (cf. Article 5(1)(a), 
Article 6(1) of the Regulation) can be verified in an authorisation procedure under 
Article 13(3) of the Regulation (for claims in accordance with Article 13(1) of the 
Regulation) or under Articles 15 to 17 of the Regulation [Or. 12] (for claims in 
accordance with Article 14(1) of the Regulation) [...]. 
23 (2)  The court dealing with the appeal on the merits also correctly proceeded on 
the basis of these principles. Contrary to the view taken in the appeal on a point of 
law, the court has not imposed excessively stringent requirements for the 
acceptance of a specific claim, as it has always required that an indication of a 
specific ingredient to which a specific effect on a particular bodily function has 
been ascribed. It has merely — on the basis of its findings as the court called upon 
to adjudicate on the public’s understanding of the contested claim, which do not 
contain an error in law — accepted that a claim where the specific effects are not 
attributed to either the food as a whole or to a particular substance is non-specific. 
This is consistent with the case-law of the Federal Court of Justice. A claim 
relating to individual constituents of a combination product consisting of a 
number of ingredients (and not relating to the product as a whole), such as the 
claim at issue in the present case, cannot be the subject of an authorisation 
procedure, since it is not clear which specific effect of which specific constituent 
is to be scientifically verified in the context of such a procedure. 
24 cc)  The statements made in the alternative by the court dealing with the appeal 
on the merits in relation to the permissibility of the claim objected to that it 
likewise accepted pursuant to the requirements of Article 10(1) of Regulation 
(EC) No 1924/2006 and the legal questions raised in this respect are therefore 
irrelevant in the case in point. 
25 c)  In the present case it also has to be assumed that the claims printed on the 
back of the packaging relating to vitamins B1 (thiamine), B5 (pantothenic acid) 
and B12 and zinc constitute specific health claims that are included in a list in 
accordance with Article 13 of Regulation (EC) No 1924/2006. [Or. 13] On the 
basis of the findings made by the court dealing with the appeal on the merits as the 
court called upon to adjudicate, without committing an error in law, it must lastly 
be assumed in the present case that a consumer who turns over the package 
assumes there is a clear connection in terms of content to the claims objected to on 
the front of the packaging due to the way in which the claims there are designed. 
26 d)  In the proceedings relating to the appeal on a point of law, it thus depends 
whether specific health claims found on the back of packaging are ‘accompanied’ 
by a reference made on the front of the packaging to general, non-specific benefits 
DR. WILLMAR SCHWABE 
 
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within the meaning of Article 10(3) of Regulation (EC) No 1924/2006 if a clear 
connection in terms of content is present between the reference and the claims, but 
the consumer is not clearly directed to the specific health claims situated on the 
back by means of an indication spatially assigned to the reference, such as a 
comment identified by an asterisk. This question is unresolved. 
27 aa)  The prevailing opinion is that ‘accompanying’ within the meaning of 
Article 10(3) of Regulation (EC) No 1924/2006 requires an immediate spatial 
connection between the reference to general benefits and the specific health claim. 
28 (1)  According to one view [...] the word ‘to accompany’, according to its 
linguistic meaning, means that the specific health claim is to be spatially linked to 
the reference to general, non-specific benefits, that is to say has to appear directly 
next to the reference or at least in close proximity thereto. In this case, however, 
depending on the protective purpose, a reference identified with an asterisk may 
also be sufficient. This corresponds to the interpretation of Article 9(1), second 
sentence, of Regulation (EC) No 1924/2006 made by the Federal Court of Justice, 
according to which a claim within the meaning [Or. 14] of this provision at least 
requires that — unless the information has a direct spatial connection to the 
nutrient-related claim — an indication made in spatial connection to the claim is 
provided, where the additional information required in accordance with 
Article 9(1), second sentence, of Regulation (EC) No 1924/2006 is to be found 
[...]. 
29 In accordance with this view, in the case in point no ‘accompanying’ would be 
present within the meaning of Article 10(3) of Regulation (EC) No 1924/2006. 
The specific health claims are not assigned to the general reference either directly 
or in a spatially obvious manner and the consumer is not clearly directed to the 
specific claims on the back of the packaging by means of a comment identified 
with an asterisk that is assigned to that reference. 
30 (2)  According to another view [...] it must be required that customers are able 
to ‘easily’ perceive the authorised specific claim, for example by the specific 
claim accompanying the non-specific claim in direct spatial proximity. According 
to this view, it also would not be sufficient for the specific claim to be perceptible 
only after turning over the packaging and looking for further claims related to the 
reference in terms of content. 
31 (3)  Furthermore, the requirement for the authorised specific claim to be 
directly spatially assigned to the reference to general benefits is supported by the 
wording in English (‘accompanied’) and in French (‘accompagnée’) 
corresponding to the German phrase ‘Begleiten’ and the Implementing Decision 
of the Commission of the European Union of 24 January 2014 (cf. No 3 of the 
Annex to Commission Implementing Decision adopting [Or. 15] guidelines for 
the implementation of specific conditions for health claims laid down in Article 10 
of Regulation (EC) No 1924/2006, OJ 2013 L 22, p. 28). According thereto, the 
specific authorised health claim accompanying the statement making reference to 
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general non-specific health benefits, should be made ‘next to’ or ‘following’ such 
statement. The creation of a strict standard of interpretation is also supported by 
the fact that the provisions of Regulation (EC) No 1924/2006 according to recitals 
1, 9 and 36 serve the purpose of ensuring a high level of consumer protection [...]. 
32 bb)  According to the view put forward by the court dealing with the appeal on 
the merits and others [...] by contrast a direct spatial or close assignment is not 
necessary, such that a general reference located on the front of the package within 
the meaning of Article 10(3) of Regulation (EC) No 1924/2006 may also be 
accompanied by specific claims on the back. 
33 This view may be supported by the fact that it is to be assumed, according to the 
case-law of the Court of Justice of the European Union and the Federal Court of 
Justice, that average consumers whose purchasing decisions depend on the 
composition of the products in question will usually first read the list of 
ingredients (Court of Justice of the European Union, judgment of 4 June 2015, 
C-195/14 [...], Verbraucherzentrale Bundesverband v Teekanne [...]. As lists of 
ingredients are often found on the back of packaging, it is not far-fetched to 
consider that such consumers also fully notice the specific claims that are related, 
in terms of content, to the reference [Or. 16] on the back of the packaging. 
34 However, such an approach could be countered by the fact that the provision of 
Article 10(3) of Regulation (EC) No 1924/2006 — unlike the provisions relating 
to the prohibition on deception, in respect of which the aforementioned case-law 
of the Court of Justice of the European Union and the Federal Court of Justice was 
given — requires a literal spatial connection by means of the substantive 
characteristic of ‘accompanying’ and therefore the relevant legal provision itself 
suggests a stricter interpretation. 
35 2.  The merits of the applicant’s claims moreover depend on whether the 
requirement contained in Chapter II of Regulation (EC) No 1924/2006 for 
generally accepted scientific evidence in accordance with Article 5(1)(a) and 
Article 6(1) of the Regulation applies to references for general, non-specific 
benefits within the meaning of Article 10(3) of the Regulation (second question 
referred [...]). 
36 a)  The applicant has asserted that the claim 
(B vitamins and zinc) for brain, nerves, concentration and memory 
constituted an infringement of the general provisions of Article 5(1) and 
Article 6(1) of Regulation (EC) No 1924/2006. Whether this is correct depends on 
the question that requires clarification, namely whether the requirement for 
generally accepted scientific evidence as governed by these provisions applies to 
[Or. 17] references to general, non-specific benefits within the meaning of 
Article 10(3) of the Regulation. 
DR. WILLMAR SCHWABE 
 
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37 b)  Unlike Article 10(1) of Regulation (EC) No 1924/2006, the provision of 
Article 10(3) of that regulation contains no reference to the general requirements 
laid down in Chapter II of the Regulation. In the view taken by the Chamber, the 
reference contained in Article 10(1) of Regulation (EC) No 1924/2006 to the 
general requirements of this Regulation merely involves an editorial clarification 
that is inherently superfluous [...]. The general requirements established in 
Chapter II of Regulation (EC) No 1924/2006 apply not only to claims within the 
meaning of Article 10(1) of the Regulation but also in principle to claims within 
the meaning of Article 10(3) of the Regulation (cf. No 3 of the Annex to 
Commission Implementing Decision adopting guidelines for the implementation 
of specific conditions for health claims laid down in Article 10 of Regulation (EC) 
No 1924/2006). 
38 c)  However, it must be noted that references to general, non-specific benefits 
within the meaning of Article 10(3) of the Regulation, regardless of the fact that 
they involve health claims within the meaning of Article 2(2)(5) of Regulation 
(EC) No 1924/2006, do not require authorisation in accordance with that 
Regulation because no generally accepted scientific evidence can be provided for 
them in view of their vagueness. The present Chamber takes the view that such 
references, even in so far as they are in principle subject to the general 
requirements laid down in Chapter II of the Regulation, cannot therefore be 
subject to the condition of supporting evidence laid down in Article 5(1)(a) and 
Article 6(1) of Regulation (EC) No 1924/2006. 
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