Opinion of the Advocate General — ECLI:EU:C:2026:18
Date: 2026-01-15
Language of the case: German

Translation  C-657/24 – 1 
Case C-657/24 
Request for a preliminary ruling 
Date lodged: 
9 October 2024 
Referring court: 
Bundesgerichtshof (Germany) 
Date of the decision to refer: 
26 September 2024 
Defendant and appellant on a point of law: 
Kyberg Pharma Vertriebs-GmbH 
Applicant and respondent in the appeal on a point of law: 
Schutzverband gegen Unwesen in der Wirtschaft e. V. 
  
[…] 
Received on 9 October 2024 
BUNDESGERICHTSHOF (FEDERAL COURT OF JUSTICE, GERMANY) 
ORDER 
of 
26 September 2024 
in the case of 
Kyberg Pharma Vertriebs-GmbH, […] Oberhaching, 
defendant and appellant on a point of law, 
[…] 
v 
EN 
REQUEST FOR A PRELIMINARY RULING OF 26. 9. 2024 – CASE C-657/24 
 
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Schutzverband gegen Unwesen in der Wirtschaft e. V.,[…] Munich, 
applicant and respondent in the appeal on a point of law, 
[…] 
Further to the hearing of 13 June 2024 […], the First Civil Chamber of the Federal 
Court of Justice 
makes the following order: 
I. The proceedings are stayed. 
II. The following questions on the interpretation of Article 10(2) of 
Regulation (EC) No 1924/2006 of the European Parliament and of the 
Council of 20 December 2006 on nutrition and health claims made on 
foods (OJ 2006 L 404, p. 9), as last amended by Commission 
Regulation (EU) No 1047/2012 of 8 November 2012 (OJ 2012 L 310, 
p. 36), are referred to the Court of Justice of the European Union for a 
preliminary ruling: 
1. Is Article 10(2) of Regulation (EC) No 1924/2006 to be 
interpreted to the effect that the term ‘labelling’ relating to a food 
also covers written advertising for the food, with the result that 
the use of a health claim in written advertising means that the 
information requirements laid down in that provision must be 
satisfied in the advertising? 
2. Is Article 10(2) of Regulation (EC) No 1924/2006 to be 
interpreted to the effect that, where health claims are used in food 
advertising, the information requirements existing under that 
provision must also be satisfied in the advertising, even if the 
labelling for the food contains the required information? 
Grounds: 
1 A. The applicant is a business association. According to its articles of 
association, it seeks to combat all manifestations of unfair competition in 
collaboration with public authorities and courts. 
2 The defendant distributes the food supplement ‘Ebbes GLS Kapseln’, which 
consists of konjac glucomannan, hydroxypropyl methylcellulose (HPMC, capsule 
shell), the food colouring E171 and rice extract. It advertised that product in the 
KYBERG PHARMA 
 
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advertisement displayed below (Annex A to the application), which appeared in 
issue 29/2020 of the magazine Mach mal Pause and included the claims 
‘GESUND GEWICHT VERLIEREN’ (‘LOSE WEIGHT THE HEALTHY WAY’) 
and ‘Glucomannan trägt im Rahmen einer kalorienarmen Ernährung zu 
Gewichtsverlust bei’ (‘Glucomannan helps you lose weight as part of a low-
calorie diet’): 
[…] (image of the advertisement) 
3 In so far as is relevant to the reference for a preliminary ruling, the applicant 
argues that the defendant, on account of the health claims made in its 
advertisement, must communicate the information referred to in Article 10(2) of 
Regulation (EC) No 1924/2006 on nutrition and health claims made on foods (‘the 
Health Claims Regulation’) not only on the product packaging but also in its 
advertising for the product. It sought an order requiring the defendant to desist, on 
pain of specified judicial enforcement measures, 
from advertising the food supplement ‘Ebbes GLS Kapseln’ and/or causing 
it to be advertised, for competitive purposes in the course of trade, in the 
following manner: 
1. by making health claims without a statement indicating the importance 
of a varied and balanced diet and a healthy lifestyle 
… 
where such claims are made as depicted in Annex A. 
4 Both of the statements are included on the product packaging but not in the 
advertisement […]. 
5 The Landgericht (Regional Court, Germany) upheld the action. The defendant’s 
appeal on the merits was unsuccessful. By its appeal on a point of law, for which 
the appeal court granted leave and which the applicant seeks to have dismissed, 
the defendant is further pursuing its application to have the action dismissed. 
6 B. The success of the appeal on a point of law depends on the interpretation of 
Article 10(2) of the Health Claims Regulation. Accordingly, before a decision is 
delivered, the proceedings are to be stayed and a preliminary ruling obtained from 
the Court of Justice of the European Union pursuant to point (b) of the first 
paragraph and the third paragraph of Article 267 TFEU. 
7 I. In so far as is relevant to the reference for a preliminary ruling, the appeal 
court considered that the applicant had legal standing and was entitled to seek the 
injunctive relief claimed under Paragraph 8(1), point 2 of Paragraph 8(3) and 
Paragraphs 3 and 3a of the Gesetz gegen den unlauteren Wettbewerb (Law on 
unfair competition; ‘the UWG’) and Article 10(1) and (2)(a) and (c) of the Health 
Claims Regulation. 
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8 The defendant, the appeal court observed, had advertised its food supplement 
‘Ebbes GLS Kapseln’ in an advertisement containing the health claims ‘GESUND 
GEWICHT VERLIEREN’ (‘LOSE WEIGHT THE HEALTHY WAY’) and 
‘Glucomannan trägt im Rahmen einer kalorienarmen Ernährung zu 
Gewichtsverlust bei’ (‘Glucomannan helps you lose weight as part of a low-
calorie diet’). 
9 That court found that the defendant had failed to comply with the information 
requirement laid down in Article 10(2)(a) of the Health Claims Regulation, under 
which it ought to have included in the advertisement a statement indicating the 
importance of a varied and balanced diet and a healthy lifestyle. It ruled that the 
information requirement applied even if such a statement were displayed on the 
product packaging. In its view, that followed from the mere fact that the 
advertisement constituted labelling within the meaning of Article 10(2)(a) of the 
Health Claims Regulation. It stated that such an interpretation was consistent with 
the purpose, defined in Article 1(1) of the Health Claims Regulation, of ensuring a 
high level of consumer protection and with recital 4 thereof, which states that the 
Health Claims Regulation should apply to all nutrition and health claims made in 
commercial communications. That interpretation, it held, was compatible with the 
German- and English-language versions of Article 10(2)(a) of the Health Claims 
Regulation; it was not precluded by the divergent French-language version. It 
considered that the defendant could not rely persuasively on the second paragraph 
of point 2.1 of the Annex to Commission Implementing Decision No 2013/63/EU 
of 24 January 2013 adopting guidelines for the implementation of specific 
conditions for health claims laid down in Article 10 of Regulation (EC) 
No 1924/2006 of the European Parliament and of the Council, since that provision 
was not suitable as an aid for interpretation due to divergences between language 
versions and deviations from the wording of Article 10(2) of the Health Claims 
Regulation. 
10 II. The success of the appeal on a point of law depends on whether Article 10(2) 
of the Health Claims Regulation is to be interpreted to the effect that, where health 
claims are used in food advertising, the information requirements existing under 
that provision must also be satisfied in the advertising itself, even if the labelling 
for the food – the product packaging in the present case – contains the required 
information. 
11 1. […] [Leave to appeal on a point of law] 
12 2. The first head of claim may be based on the first sentence of Paragraph 8(1), 
point 2 of Paragraph 8(3), Paragraph 3 and Paragraph 5a of the UWG, all read in 
conjunction with Article 10(2) of the Health Claims Regulation. 
13 (a) The defendant made health claims about its food product ‘Ebbes GLS 
Kapseln’, which means that the information requirements under Article 10(2) of 
the Health Claims Regulation are applicable. 
KYBERG PHARMA 
 
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14 (aa) Under Article 10(2) of the Health Claims Regulation, health claims are only 
to be permitted if the information referred to below is included in the labelling or, 
if no such labelling exists, in the presentation and advertising; that information 
includes (point a) a statement indicating the importance of a varied and balanced 
diet and a healthy lifestyle. 
15 As regards the term ‘food’, Article 2(1)(a) of the Health Claims Regulation refers 
to the definition set out in the first paragraph of Article 2 of Regulation (EC) 
No 178/2002 of the European Parliament and of the Council of 28 January 2002 
laying down the general principles and requirements of food law, establishing the 
European Food Safety Authority and laying down procedures in matters of food 
safety, according to which ‘food’ (or ‘foodstuff’) means, inter alia, substances or 
products intended to be ingested by humans, unless one of the exceptions listed in 
the third paragraph of that provision applies; however, those exceptions are not 
relevant to the present case. 
16 As regards the term ‘food supplement’, Article 2(1)(b) of the Health Claims 
Regulation refers to the definition in Article 2(a) of Directive 2002/46/EC on the 
approximation of the laws of the Member States relating to food supplements, 
from which it is apparent that food supplements – such as the one advertised by 
the defendant – count as foods. 
17 Under point 1 of Article 2(2) of the Health Claims Regulation, a claim is any 
message or representation, which is not mandatory under Community or national 
legislation, including pictorial, graphic or symbolic representation, in any form, 
which states, suggests or implies that a food has particular characteristics. 
18 Under point 5 of Article 2(2) of the Health Claims Regulation, 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. 
19 (bb) The appeal court did not err in law – and the appeal on a point of law does 
not dispute this – in holding that the defendant made a health claim in food 
advertising by using, for example, the statement ‘GESUND GEWICHT 
VERLIEREN’ (‘LOSE WEIGHT THE HEALTHY WAY’) in the advertisement 
challenged by the applicant for the food supplement ‘Ebbes GLS Kapseln’. The 
product in question is a food in the form of a food supplement. The defendant 
made a non-mandatory statement about the product by which it suggested that a 
relationship exists between one of its constituents and health. 
20 (cc) The defendant made the statement required under Article 10(2)(a) of the 
Health Claims Regulation indicating the importance of a varied and balanced diet 
and a healthy lifestyle on the packaging of the product ‘Ebbes GLS Kapseln’. The 
defendant’s advertisement which is challenged by the applicant does not contain 
that statement. The appeal on a point of law does not dispute this. 
21 (b) It is doubtful whether the defendant, in using health claims in the advertising 
for its product, satisfied the information requirement incumbent on it under 
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Article 10(2)(a) of the Health Claims Regulation by including the statement 
prescribed by that provision on the product packaging or whether it should also 
have included that statement in the (written) advertising for that product. 
22 (aa) The information requirements laid down in Article 10(2) of the Health Claims 
Regulation, in the event that health claims are used, must be satisfied, first of all, 
in the labelling of the food, unless no such labelling exists. It is doubtful whether 
the term ‘labelling’ relating to a food also covers written advertising for the food, 
with the result that the use of a health claim in written advertising would mean 
that the information requirements laid down in that provision must be satisfied in 
that advertising. The purpose of the first question referred is to clarify that issue. 
23 (1) The terms of a provision of EU law which makes no express reference to the 
law of the Member States for the purpose of determining its meaning and scope 
must normally be given an autonomous and uniform interpretation throughout the 
European Union; that interpretation must take into account not only its wording 
but also its context and the objective pursued by the legislation in question (see 
Court of Justice, judgment of 20 April 2023, C-580/21, EEW Energy from Waste, 
[…], juris, paragraph 23 […] with further references). The wording used in one of 
the language versions of a provision of EU law cannot serve as the sole basis for 
the interpretation of that provision or be given precedence over the other language 
versions (see Court of Justice, judgment of 11 June 2020, C-786/18, […] 
ratiopharm, […], juris, paragraph 30 with further references). 
24 (2) Under Article 2(1)(d) of the Health Claims Regulation, the applicable 
definition of the term ‘labelling’ is that set out in Article 1(3)(a) of Directive 
2000/13/EC on the approximation of the laws of the Member States relating to the 
labelling, presentation and advertising of foodstuffs; with the repeal of that 
directive by Article 53(1) and (2) of Regulation (EU) No 1169/2011 on the 
provision of food information to consumers (‘the Food Information to Consumers 
Regulation’), that definition has been superseded by the one set out in 
Article 2(2)(j) of the Food Information to Consumers Regulation. Under that 
provision, ‘labelling’ means any words, particulars, trade marks, brand name, 
pictorial matter or symbol relating to a food and placed on any packaging, 
document, notice, label, ring or collar accompanying or referring to such food. 
25 (3) The appeal court, referring to a scholarly opinion (Kurt-Dietrich Rathke and 
Andreas Hahn, in Olaf Sosnitza and Andreas Meisterernst, Lebensmittelrecht, 
November 2023, on Article 2 of Regulation (EC) No 1924/2006, paragraph 21; 
see also idem, on Article 2 of the Food Information to Consumers Regulation, 
paragraph 88), held that labelling did not require spatial proximity to the product. 
That, according to the appeal court, distinguished the term ‘labelling’ from the 
term ‘label’ defined in Article 2(2)(i) of the Food Information to Consumers 
Regulation. 
26 (4) It is doubtful, however, whether that view is valid. 
KYBERG PHARMA 
 
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27 (a) It is true that, according to the wording of the definition, labelling may also 
cover particulars relating to a food and placed on any document referring to such 
food. 
28 (b) That in itself, however, does not determine the form of relationship which 
the document must have to the food. The subject matter of Article 2(2)(j) of the 
Food Information to Consumers Regulation covers, first of all, ‘documents 
accompanying such food’. It is not apparent from the provision itself which 
additional cases are to be encompassed by the variant ‘documents accompanying 
such food’, which may be relevant in the present case. In particular, the question 
whether it means that written and other advertising for a food is to be regarded as 
labelling is left unanswered. The meaning given to the term ‘labelling’ [that is to 
say, the German ‘Kennzeichnung’] in everyday language tends to suggest 
otherwise, as is the case with the English ‘labelling’ and the French ‘étiquetage’. 
29 (c) As shown in the second sentence of the third paragraph of point 2.1 of the 
Annex to its Implementing Decision 2013/63/EU, the European Commission 
draws a distinction between the terms ‘labelling’ and ‘advertising’. The 
distinction, it states, is that ‘labelling’ is concerned with the delivery of the food to 
the final consumer, while ‘advertising’ is about the promotion of the supply of 
food by the food business operator. 
30 (d) The Health Claims Regulation makes no reference to the definition of the 
term ‘label’ set out in Article 2(2)(i) of the Food Information to Consumers 
Regulation and cited by the appeal court. If one wished to rely on that definition, 
it would also have to be borne in mind that Article 2(1)(g) of the Food 
Information to Consumers Regulation – to which the Health Claims Regulation 
likewise makes no reference – refers to the term ‘advertising’ as defined in 
Article 2(a) of Directive 2006/114/EC concerning misleading and comparative 
advertising. In the light of that fact, it seems likely that not only the terms 
‘labelling’ and ‘label’ but also the terms ‘labelling’ and ‘advertising’ have 
different meanings. 
31 (5) Furthermore, it does not follow unequivocally from the view expressed by the 
appeal court, according to which written advertising is part of the product 
labelling, that the information requirement which arises when a health claim is 
used cannot be satisfied on the product packaging, which also counts as part of the 
labelling, but must also be satisfied in the written advertising. An argument for 
such an interpretation could be based on the purpose of the Health Claims 
Regulation, expressed in the second sentence of recital 1 thereof, of ensuring a 
high level of protection for consumers (see also in that regard Article 1(1) of that 
regulation) and facilitating their choice (when they purchase food). 
32 (bb) Even if a written advertisement is not food labelling within the meaning of 
Article 10(2) of the Health Claims Regulation or if the information requirements 
arising in respect of one part of the labelling may be satisfied in another part of the 
labelling, it is possible that the information requirements under that provision have 
REQUEST FOR A PRELIMINARY RULING OF 26. 9. 2024 – CASE C-657/24 
 
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to be satisfied in the advertising even if the food labelling contains the required 
information. The purpose of the second question referred is to clarify that issue. 
33 (1) It cannot be inferred unequivocally from the wording of Article 10(2) of the 
Health Claims Regulation whether, in every case in which health claims are used 
in food advertising, an information requirement exists which must be satisfied in 
the advertising itself (see in that regard Rathke and Hahn, in Sosnitza and 
Meisterernst, op. cit., on Article 2 of Regulation (EC) No 1924/2006, 
paragraph 21). 
34 (a) This appears to be borne out by the German- and English-language versions 
of the provision, in which the words ‘Lebensmittelwerbung’ and ‘advertising’ are 
linked to the preceding part of the sentence by the words ‘und’ and ‘and’ 
respectively, which suggests that the information requirements must be satisfied 
cumulatively in the labelling (or presentation) and the advertising. 
35 (b) However, because of the preceding insertion, between commas, of the words 
‘or if no such labelling exists’ (German: ‘falls diese Kennzeichnung fehlt’), it is 
unclear whether, as maintained in the appeal on a point of law, the subsequent 
alternative ‘in the presentation and advertising’ (German: ‘die Aufmachung der 
Lebensmittel und die Lebensmittelwerbung’) is only ever meant to apply if the 
food is not labelled. If so, where labelling exists, that is where the information 
requirements would always have to be satisfied. That conclusion is not altered by 
the additional observation made in the appeal on a point of law that the insertion 
in the consolidated Danish-language version is placed between dashes rather than 
commas. 
36 (c) Freedom of choice as to whether the information requirements are satisfied in 
the labelling or the advertising could be supported by the French-language 
version, in which the word ‘publicité’ (‘advertising’) is joined to the preceding 
part of the sentence by the word ‘ou’ (‘or’). That divergence in the French-
language wording of the regulation, however, is not reflected in the French-
language version of point 2.1 of the Annex to the Implementing Decision, where 
the conjunction used each time is ‘et’ (‘and’). By contrast, in the German-
language version of the same Implementing Decision, the conjunction ‘oder’ 
(‘or’) is used in one place (see the first paragraph of point 2.1(b) of the Annex). 
37 (2) Neither the regulatory context nor the legislative history of Article 10(2) of 
the Health Claims Regulation provides any further guidance as to its 
interpretation. As for the reference made in the appeal on a point of law to the 
Commission’s original proposal for a regulation, which provided only for 
information requirements in the context of food labelling (see COM(2003) 424 
final, p. 20), that proposal gives no indication of the intention behind the addition 
of the term ‘advertising’ in the subsequent course of the legislative process. 
38 (3) The aforementioned purpose of the Health Claims Regulation (see 
paragraph 31 above) might be an argument in favour of a requirement that the 
KYBERG PHARMA 
 
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information to be provided where health claims are used in advertising must be 
communicated in the advertisement itself. In online trading, which has grown 
rapidly in significance over recent years, food packaging plays only a minor role 
in consumers’ purchase decisions (on this point, see also the second paragraph of 
point 2.1(b) of the Annex to Implementing Decision 2013/63/EU). It is also 
doubtful whether consumers concern themselves with the product packaging after 
buying a product online. In the view of the Chamber, it follows that the high level 
of consumer protection which the Regulation seeks to ensure can only be achieved 
if the information which is mandatory when health claims are used in food 
advertising is communicated in the advertising itself (previous similar appraisals 
are to be found in the decisions of the Oberlandesgericht Koblenz (Higher 
Regional Court, Koblenz, Germany), Lebensmittel und Recht (LMuR), 2012, 
p. 195 (juris, paragraphs 43-44), the Oberlandesgericht Schleswig (Higher 
Regional Court, Schleswig, Germany), LMuR, 2012, p. 204 (juris, paragraph 50), 
the Kammergericht (Higher Regional Court, Berlin, Germany), MD, 2015, p. 1086 
(juris, paragraph 50]; the Oberlandesgericht Düsseldorf (Higher Regional Court, 
Düsseldorf, Germany), MD 2015, p. 1094 (juris, paragraph 100), the 
Oberlandesgericht Hamburg (Higher Regional Court, Hamburg, Germany), 
LMuR, 2022, p. 321 (juris, paragraph 41), Rathke and Hahn, in Sosnitza and 
Meisterernst, op. cit., paragraph 21 with further references; for other views, see 
Astrid Hüttebräuker, in Martin Holle and Astrid Hüttebräuker, HCVO, first 
edition, on Article 10 of the Health Claims Regulation, paragraphs 45-46, and 
Alfred Hagen Meyer in Karl-Heinz Fezer, Wolfgang Büscher and Eva Inés 
Obergfell, UWG, third edition, Part Two, p. 4, paragraph 341 (on Article 10(2) of 
the Health Claims Regulation); the question is left open in Wolfgang Voit and 
Markus Grube, LMIV, second edition, on Article 7 of the Food Information to 
Consumers Regulation, paragraph 355)). Recital 4 of the Health Claims 
Regulation, which states that that regulation should apply to all nutrition and 
health claims made in commercial communications, also supports such an 
understanding of that regulation. However, recitals 10 and 18 thereof, which the 
appeal on a point of law invokes on a supplementary basis, do not appear to 
provide any further foundation for a divergent interpretation. 
39 (4) In addition, the comparison drawn in the appeal on a point of law with 
Directive 2002/46/EC on the approximation of the laws of the Member States 
relating to food supplements is of no consequence because the Health Claims 
Regulation, as indicated in Article 1(5)(d) thereof, applies without prejudice to the 
aforementioned directive. 
40 (c) The questions referred are relevant for the purposes of adjudication. If the 
advertisement falls within the scope of the concept of labelling within the meaning 
of Article 10(2) of the Health Claims Regulation or if the defendant is under an 
obligation to satisfy the information requirements under Article 10(2) of that 
regulation in the labelling of the product and in the advertising for that product, 
the applicant is entitled to seek injunctive relief against the defendant under the 
first sentence of Paragraph 8(1), point 2 of Paragraph 8(3), Paragraph 3 and 
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Paragraph 5a of the UWG, all read in conjunction with Article 10(2) of the Health 
Claims Regulation. 
41 (aa) […] [Applicant’s standing] 
42 (bb) […] [Conditions for injunctive relief] 
[…] 
[Signatures] 
Lower instances: 
Landgericht München I (Regional Court I, Munich, Germany), decision of 
19 January 2022, case ref. 3 HK O 4222/21 
Oberlandesgericht München (Higher Regional Court, Munich, Germany), decision 
of 20 July 2023, case ref. 29 U 680/22 
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