Provisional text
OPINION OF ADVOCATE GENERAL
NORKUS
delivered on 15 January 2026 (1)
Case C‑657/24
Kyberg Pharma Vertriebs-GmbH
v
Schutzverband gegen Unwesen in der Wirtschaft eV
(Request for a preliminary ruling from the Bundesgerichtshof (Federal Court of Justice, Germany))
( Reference for a preliminary ruling – Approximation of laws – Food safety – Health claims – Specific conditions of use – Labelling requirements – Food supplement which is the subject of written advertising )
1.        The present case concerns the interpretation of the rules on the labelling and advertising of food, in particular food supplements, which must be complied with by food business operators wishing to place health claims on their products. The referring court’s questions ask the Court of Justice to determine, first, whether those rules require compliance with the obligations to provide the information that must accompany those health claims solely on the labelling of food and, second, whether the concept of ‘labelling’ encompasses that of ‘advertising’, in particular advertising in written form.
I.      Legal framework
2.        The following are relevant to the present case: recital 17, Article 2(a), Article 6(2) and (3), the first paragraph of Article 7 and Article 8 of Directive
2002/46/EC, (2) Article 2(a) of Directive
2006/114/EC, (3) recitals 1 to 4, 9, 10 and 19, Article 1(1) and (2), Article 2(1)(d), (2)(1) and (5), Articles 3 to 7 and Articles 10 to 17 of Regulation (EC) No 1924/2006, (4) recital 10, Article 1(1) and (2), Article 2(1)(g), the last paragraph of Article 7, Article 14(1) and Article 53(1) and (2) of Regulation (EU) No 1169/2011 (5) and point 2 of the annex to Implementing Decision
2013/63/EU. (6)
II.    The relevant facts, the questions referred and the procedure before the Court of Justice
3.        Kyberg Pharma markets, in the form of capsules consisting, inter alia, of glucomannan (konjac glucomannan), a food supplement (‘the product at issue’), the packaging of which includes a statement highlighting the importance of a varied and balanced diet and a healthy lifestyle.
4.        In 2020, Kyberg Pharma distributed, in the written press, an advertisement designed to promote the product concerned, containing, inter alia, the following claims: ‘Lose weight the healthy way’ and ‘Glucomannan helps you lose weight as part of a low-calorie diet’. It is common ground between the parties to the main proceedings that that advertisement did not include the statement referred to in the preceding point of the present Opinion.
5.        Taking the view that those claims should have been accompanied by the information listed in Article 10(2) of Regulation No 1924/2006, the Schutzverband gegen Unwesen in der Wirtschaft eV, a trade association governed by German law whose remit, according to its articles of association, is to combat unfair competition, brought an action before the Landgericht München (Regional Court, Munich, Germany). It sought, inter alia, an order requiring Kyberg Pharma to cease and desist, on pain of a penalty, from promoting
the product at issue, in the course of trade and for advertising purposes, by making the health claims at issue in the main proceedings without mentioning the importance of a varied and balanced diet and a healthy lifestyle.
6.        The Landgericht München (Regional Court, Munich) upheld the action, and Kyberg Pharma brought an appeal against that judgment before the Oberlandesgericht München (Higher Regional Court, Munich), which was dismissed by judgment of 20 July 2023.
7.        Kyberg Pharma brought an appeal on a point of law against the judgment of the Oberlandesgericht München (Higher Regional Court, Munich) before the Bundesgerichtshof (Federal Court of Justice, Germany), which is the referring court.
8.        The referring court considers that the success of the action before it depends on whether Article 10(2) of Regulation No 1924/2006 is to be interpreted as meaning that Kyberg Pharma fulfilled its obligation to provide information under that provision by stating, on the packaging of the product at issue, the information set out in that provision, or whether Kyberg Pharma was also required to include that information in the advertisement promoting its product.
9.        In those circumstances, the Bundesgerichtshof (Federal Court of Justice) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1)      Is Article 10(2) of Regulation [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 [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?’
10.      The order for reference dated 26 September 2024 was received at the Court Registry on 9 October 2024. Written observations were submitted by the parties in the main proceedings and by the European Commission. In accordance with Article 76(2) of its Rules of Procedure, the Court did not consider it necessary to hold a hearing.
III. Analysis
A.      Preliminary observations
11.      Before entering into the legal analysis, I consider it useful to make some preliminary observations in order to facilitate a better understanding of the questions raised in the present case.
12.      In that regard, it should be noted that the present analysis will be based on the premiss accepted by the referring court in its request for a preliminary ruling, namely that the product concerned is a food in the form of a food supplement.
13.      In the first place, in view of the technical nature of the legislation applicable in the present case, it is necessary to describe briefly the relevant legal framework.
14.      Under Article 1(2) thereof, Regulation No 1924/2006 applies to nutrition and health claims made in commercial communications concerning foods to be delivered as such to the final consumer, including – as is clear from Article 2(1)(b) of that regulation, read in conjunction with Article 2(a) of Directive
2002/46 – food supplements.
15.      Regulation No 1924/2006, which lays down specific rules to be complied with when making nutrition and health claims on foods to be delivered as such to consumers, sought, from the outset, to supplement
Directive
2000/13/EC, (7) which consisted of general provisions, in particular on labelling. (8) That directive was repealed by Regulation No 1169/2011, (9) which codified, simplified and incorporated into a single text the legislation in relation to food labelling and, more generally, the provision of food information to consumers. (10) Thus, as a complementary legal instrument, in so far as the claims to which it refers are information on food, including food supplements, Regulation No 1924/2006 must be understood in the light of Regulation No 1169/2011.
16.      In addition, it should be added that, in view of their particular nature, food supplements are also covered by a specific legal regime established by Directive
2002/46. In that regard, Article 29(1)(a) of Regulation No 1169/2011 provides that the rules on the information to be included in the nutrition declaration provided for in that regulation do not apply to food supplements. That information is provided in accordance with Article 8 of Directive
2002/46. However, those legal instruments are to be understood as complementary, unless they provide for an express exception concerning the application of other rules on labelling and food information. (11)
17.      In the second place, it is necessary to set out the particular nature of the information contained in the claims at issue.
18.      In general, point 1 of Article 2(2) of Regulation No 1924/2006 defines a claim as ‘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’. The following elements particularly caught my attention when reading those definitions together. Most importantly, a claim is optional (or non-mandatory) information relating to particular characteristics of a food. In other words, that information is provided solely on a voluntary basis by the food business operator, but is not required by EU legislation. (12)
19.      The health claims relevant to the present case are defined in Article 2(2)(5) of Regulation No 1924/2006 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’. According to the Court, that is a broad concept. (13)
20.      That said, and for a better understanding of the context of the questions referred in the present case, there is another element implicit in the above definitions that I consider particularly important, namely the purposes for which such claims are used. In that regard, it is already apparent from the travaux préparatoires for
Regulation No 1924/2006 that, while recognising the positive effect of the evolution of the use of claims for providing information to consumers, the EU legislature took into consideration the fact that claims are also used as a marketing tool. (14)
21.      Moreover, many sources have observed an increase in the popularity of certain trends over the years, in particular the considerable efforts made by food business operators to draw consumers’ attention to their products, claiming the products have benefits for nutrition or health, seeking to distinguish themselves from their competitors or to highlight their food innovations. (15)
22.      In that regard, recital 19
of Regulation No 1924/2006 recognises the positive image that nutrition and health claims may confer on foods and the impact that those foods may have on dietary habits and overall nutrient intakes. The Court of Justice has also concluded that such claims guide the dietary choices made by consumers. (16)
23.      It is therefore clear that Regulation No 1924/2006 constitutes, above all, an important legal instrument for managing the use of claims, in particular health claims used to promote food to consumers. However, while it is an important tool for consumer protection, the regulation also seeks to create a level playing field in the food industry (17) and thus to balance those two different objectives by establishing rules that are to be complied with when making those
claims.
24.      In order to be permitted, claims covered by Regulation No 1924/2006 must satisfy the general conditions laid down in Chapter
II of that regulation. Health claims, which are relevant to the present case, must also meet the specific conditions laid down in Chapter
IV of the regulation. (18) Article 10(2) of Regulation No 1924/2006, the interpretation of which is sought by the referring court in the present case, is to be found in that chapter, which must now be analysed in the context of the questions referred for a preliminary ruling.
B.      Questions referred for a preliminary ruling
25.      By its first question, the referring court asks about the scope of the concept of ‘labelling’ of food within the meaning of Article 10(2) of Regulation No 1924/2006. More specifically, in so far as that court asks whether the concept of ‘labelling’ also covers that of ‘advertising’ in written form, it will be necessary to differentiate between
those two concepts in the legislation governing health claims.
26.      By its second question, the referring court asks about the scope of the information requirements laid down in Article 10(2) of Regulation No 1924/2006 and, in particular, whether those requirements must be met in relation to the concerned food’s advertising where they have already been satisfied on its labelling.
27.      In other words, the questions referred for a preliminary ruling concern the extent of the information requirements. They should therefore be dealt with together. However, since the relevance of the scope of the concept of ‘labelling’ depends on the scope of the information requirements laid down in Article 10(2) of Regulation No 1924/2006, I consider it appropriate to begin the present legal analysis with the scope of the information requirements.
1.      The scope of the information requirements
28.      It is clear from the wording and the grammatical structure of Article 10(2) of Regulation No 1924/2006 that the regulation makes compliance with the information requirements in the context, inter alia, of the advertising of food subject to the condition that that food is not labelled.
29.      The first part of the sentence in Article 10(2) of Regulation No 1924/2006, namely ‘health claims shall only be permitted if the following information is included in the labelling’, indicates
that the information requirements must be complied with in the labelling. It is only in the absence of such labelling that the information requirements are to be fulfilled in the places specified in the second part of the sentence, that is, ‘or if no such labelling exists, in the presentation and advertising’. Thus, the idea of making compliance with the information requirements subject to the absence of labelling, in particular when advertising food, is introduced by the words ‘if no such labelling exists’.
30.      The conjunction ‘or’ before the expression ‘if no such labelling exists’ in Article 10(2) of Regulation No 1924/2006 cannot, in my view, support the interpretation that the requirement to provide information in the labelling and, in particular, in advertising are to be regarded as alternatives. To hold otherwise would render the latter expression devoid of any logic. In view of the expression ‘if no such labelling exists’ which follows it, that conjunction must be regarded as exclusive, meaning that it refers to the communication of the information specified in Article 10(2) either in the labelling or in the presentation or in the advertising of food. (19)
31.      That said, it should be noted, as the referring court has pointed out, that the language versions of Article 10(2) of Regulation No 1924/2006 use different conjunction ‘ou’ (or) between the terms ‘présentation’ (presentation) and ‘publicité’ (advertising), which suggests that some discretion is left to food business operators to fulfil the information requirements where the food has no labelling. Consequently, the information provided for in Article 10(2) of Regulation No 1924/2006 should in such a case appear either in the presentation or in the advertising for that food.
32.      By contrast, the German (‘die Aufmachung der Lebensmittel und die Lebensmittelwerbung’), English (‘the presentation and advertising’), Spanish (‘en la presentación y la publicidad’) and Lithuanian (‘pateikime ir reklamoje’) (20) versions use the conjunction ‘and’ between the terms ‘presentation’ and ‘advertising’. That conjunction thus suggests that, in the absence of labelling containing the mandatory particulars, those particulars must appear both in the presentation and in the advertising.
33.      While it is true that there is a clear difference between the language versions, it is not decisive since, irrespective of the language version, the wording of Article 10(2) of Regulation No 1924/2006 states, in the first part of the sentence, that compliance with the information requirements in the case of health claims is required, first and foremost, in the labelling of the food. However, if no such labelling exists, those requirements must be fulfilled, inter alia, in the advertising of the food, under the second part of the sentence of that provision. The use of the conjunctions ‘and’ or ‘or’ before the term
‘advertising’ in the various language versions has no bearing on the fact that that term falls within the second part of the sentence, which is to be taken into account only if a food has no labelling. It is common ground that, in the case in the main proceedings, the product concerned bears a label which includes the mandatory statement on
the importance of a varied and balanced diet and a healthy lifestyle. The manufacturer is criticised solely for not making that statement in the advertising for the product, which falls within the scope of the second part of the sentence.
34.      In any event, according to the Court of Justice’s settled case-law, the wording used in one language version of a provision of EU law cannot serve as the sole basis for the interpretation of that provision or be made to override the other language versions, Provisions of EU law must be interpreted and applied uniformly in the light of the versions existing in all languages of the European Union. Where there is divergence between the various language versions of an EU legislative text, the provision in question must be interpreted by reference to the general scheme and the purpose of the rules of which it forms part. (21) The context and purpose of Regulation No 1924/2006 seem to me to support a literal interpretation of Article 10(2) of Regulation No 1924/2006, under which the information requirements must, first and foremost, be complied with in the labelling and, only if there is no labelling, in the advertising for the food.
35.      As regards the context of the information requirements laid down in Article 10(2) of Regulation No 1924/2006, the following should be noted.
36.      It is true, as the referring court points out in its request for a preliminary ruling, that recital 4 of Regulation No 1924/2006 states that the regulation should ‘apply to all nutrition and health claims made in commercial communications, including, inter alia, generic advertising of food and promotional campaigns, such as those supported in whole or in part by public authorities’. In that regard, it should be added that Article 1(2) of the regulation also provides that its scope encompasses ‘commercial communications, whether in the labelling, presentation or advertising of foods’.
37.      However, as is clear from the abovementioned provisions of Regulation No 1924/2006, those provisions concern health claims in their own right. It cannot be inferred from the above that the rules relating to the information that must accompany those claims are treated in the same way. As stated in Article 10(1) of the regulation, in order to be permitted, health claims must comply with the general requirements in Chapter
II, entitled ‘General principles’, and with the specific requirements in Chapter
IV, which concerns ‘health claims’. In particular, those
claims are to be authorised in accordance with the regulation and must be included in the lists of permitted claims referred to in Articles 13 and 14 relating, respectively, to ‘health claims other than those referring to the reduction of disease risk’ and to ‘reduction of disease risk claims’. In other words, the conditions are linked to the health claims themselves, but not to the information which must accompany them and, above all, not to where such information must appear. That, in my view, is the difference between, on the one hand, the specific rules set out in Article 10(1) of Regulation No 1924/2006 relating to health claims themselves and, on the other hand, the specific rules applicable to the information which must accompany those claims in order for them to be permitted, laid down in Article 10(2) of the regulation.
38.      In addition, Article 10(4) of Regulation No 1924/2006 expressly provides for the possibility of adopting guidelines on the implementation of that article. For that reason, I consider that the implementing decision 2013/63 is an important element in the contextual interpretation of Article 10(2) of Regulation No 1924/2006.
39.      The annex to Implementing Decision 2013/63 expressly provides that Article 10(2) of Regulation No 1924/2006 requires the inclusion of the mandatory information in the labelling of the food for which the health claim is made. It is where no labelling exists that the mandatory information is to be given in the advertising and presentation of the food. (22) That may be explained in the light of the objectives pursued both by Regulation No 1924/2006 itself and by other legal instruments relating to the labelling of food, including, in particular, Regulation No 1169/2011, which is supplemented by Regulation No 1924/2006. Those legal instruments ensure the proper functioning of the internal market while assuring a high level of consumer protection by making the necessary food information available to consumers so that they can make informed purchasing choices. (23)
40.      The referring court doubts whether the objective of a high level of protection can be achieved as regards, in particular, foods marketed online, unless the mandatory information is included in advertising relating to them.
41.      In that regard, it should be noted that Regulation No 1924/2006 does not contain any provisions on authorising health claims on foods depending on where they are sold, that is to say, in a physical place of sale or remotely. The rules on authorisation apply on the basis of the information provided, that is whenever a nutrition or health claim appears in a commercial communication relating to a food, where that food is to be supplied as such to the final consumer. (24) Moreover, in order for consumers to be able to make their food choices in full knowledge of the facts, what matters is that the mandatory information is made available to them prior to purchase.
42.      It is therefore in that sense that it is necessary to interpret, inter alia, the rules relating to the availability and placement of the mandatory information and the rules on distance selling, referred to in Article 12 and Article 14 of Regulation No 1169/2011, which are recalled in point 2.1(b) of the annex to Implementing Decision 2013/63. In particular, Article 12 of Regulation No 1169/2011 lays down the principle that consumers must always benefit from the mandatory information on a food before making their choices. According to Article 14 of that regulation, in the case of distance selling that information must appear on the material supporting the distance selling or be provided through other appropriate means identified by the food business operator. Those special arrangements also apply to the distance selling of foods bearing health claims.
43.      In that regard, point 2.1(b) of the annex to Implementing Decision 2013/63 adds that if, in distance selling of food bearing health claims, access to the labelling is restricted, (25) that information must also be included in the presentation and advertising of those foods. However, it is clear from the abovementioned provisions that they concern the specific case of distance selling, which cannot be extended by default to all sales of foods bearing health claims. Thus, it cannot alter the general scheme
for information requirements laid down in Article 10(2) of Regulation No 1924/2006.
44.      It should be recalled that consumers have an interest in the relationship between diet and health and in the choice of an appropriate diet to suit individual needs. (26) In that regard, it should be considered that labelling is a significant way of providing information to consumers. ‘Appropriate labelling can indeed point consumers in the right direction towards adopting a healthy diet, and facilitate positive … choices’ (27) for their health. Thus, for the purposes of a high level of consumer protection in the field of food, the EU legislature took the view that it is the labelling that must be used to communicate essential food information to consumers. (28) Advertising only plays a secondary role, compensating for the absence of labelling and the essential food information that must appear on the labelling prior to purchase.
45.      Compliance with the obligations to provide information on labelling and elsewhere only where no such labelling exists, in particular in advertising, is also justified from a practical point of view. While it is true that advertising may be present in food outlets and therefore in close proximity to those outlets, (29) advertising is not generally perceived as a means of conveying information in proximity to food. Advertising is certainly intended to draw attention to the product in question, but it is also intended to influence consumers’ attitudes and choices even before they see the food itself. It is also in line with that reasoning, namely to allow advertising to achieve its purpose of promoting purchases, and in accordance with the objective of Regulation No 1924/2006, which seeks not only to provide a high level of consumer protection but also to safeguard the effective functioning of the internal market, that it seems to me perfectly conceivable that food business operators may be exempted from complying with the information requirements laid down in Article 10(2) of that regulation in advertising, provided that the information required appears on the labelling which is, in principle, in proximity to the food. (30)
46.      I therefore take the view that the information requirements within the meaning of Article 10(2) of Regulation No 1924/2006 must be complied with in the labelling of food and, only if no such labelling exists, inter alia, in the advertising of food.
47.      Now that the scope of the information requirements under Article 10(2) of Regulation No 1924/2006 has been established, it is necessary to analyse whether the concept of ‘labelling’ of food, within the meaning of that article, encompasses that of ‘advertising’, in particular written advertising, such that compliance with the labelling requirements also requires the inclusion of the
information provided for in that article
in that
advertising.
2.      Distinction between the concepts of ‘labelling’ and ‘advertising’
48.      In that regard, it should be noted that Article 10(2) of Regulation No 1924/2006, which, as its title states, lays down specific conditions for the use of health claims, does not define the concepts of ‘labelling’ or ‘advertising’. According to that article, which lists the conditions to be met in order for the communication of health claims to be permitted, such claims are only to be permitted if the information listed therein is included in the labelling or, if no such labelling exists, inter alia, in advertising for the product. Thus, the use of the expression ‘if no [such labelling] exists’ suggests that there is a relationship of subsidiarity between the concepts referred to. (31)
49.      That being so, Article 10(2) of Regulation No 1924/2006 must be read in conjunction with Article 2(1)(d) thereof. That provision refers to the definition of ‘labelling’ set out in Directive
2000/13 and must now be construed as referring to the definition in Regulation No 1169/2011. According to that definition, 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’. (32) It is a broad definition, encompassing a large number of visual elements which are capable of providing information on a food and whose presence on a variety of information media, either accompanying or referring to the food, constitutes a condition for its classification within the meaning of Article 2(1)(d) of Regulation No 1924/2006, read in conjunction with Article 2(2)(j) of Regulation No 1169/2011.
50.      However, Regulation No 1924/2006 does not contain any definition of ‘advertising’, nor does it refer to a definition contained in another legal instrument. Nevertheless, in so far as that regulation supplements Regulation No 1169/2011, I consider that the concept of ‘advertising’ to which the latter regulation refers, constitutes an element of the literal interpretation of Article 10(2) of Regulation No 1924/2006. (33)
51.      Under Article 2(1)(g) of Regulation No 1169/2011, the definition of ‘advertising’ to which reference must be made where the rules on the provision of food information to consumers are at issue is that set out in Directive
2006/114, namely ‘the making of a representation in any form in connection with a trade, business, craft or profession in order to promote the supply of goods or services, including immovable property, rights and obligations’. (34) In that regard, the Court of Justice has previously observed that that particularly broad definition means that the forms which advertising may take are very varied and is not therefore limited to traditional forms of advertising. (35)
52.      That said, the question which arises is whether, having regard to the two very broad definitions of ‘labelling’ and ‘advertising’, there is a possibility that advertising, if only as regards one form – namely written advertising – may partially overlap with labelling. In that regard, a literal interpretation of Article 10(2) of Regulation No 1924/2006, read in conjunction with Article 2(1)(d) of that regulation and Article 2(1)(g) of Regulation No 1169/2011, seems to me to argue
against such a conclusion. It should be noted, first, that the definition of ‘advertising’ set out in the preceding paragraph encompasses all forms of communication, including, inter alia, written advertising. In other words, nothing in the wording of the abovementioned articles suggests that one specific form of advertising may be treated differently from others, for example because of its possible overlap with other definitions given under that regulation.
53.      Second, to consider that the written form of advertising falls within the concept of ‘labelling’ would result in a failure to take into account the essential elements of the definitions of those two concepts. The legal definition of labelling emphasises the nature of a variety of elements which relate to a food and the place where they appear. The legal definition of ‘advertising’, for its part, emphasises the importance of the promotional purpose.
54.      Moreover, the context of Article 10(2) of Regulation No 1924/2006 and the objectives pursued by that regulation also support a negative answer to the question of whether there is a possible overlap between the concepts at issue.
55.      The context surrounding Article 10(2) of Regulation No 1924/2006 confirms that there is a distinction
between the concepts of ‘labelling’ and ‘advertising’. It is apparent from that regulation as a whole that it distinguishes between the concepts, inter alia, of ‘labelling’ and ‘advertising’. Although the regulation does not define the concept of ‘advertising’, but does contain a reference to the definition of ‘labelling’, it uses those two concepts separately in several articles. Article 1 of Regulation No 1924/2006, entitled ‘Subject matter and scope’, expressly states, in paragraph 2 thereof, that that regulation is to apply ‘to nutrition and health claims made in commercial communications, whether in the labelling, presentation or advertising of foods’. Article 3 of that regulation, which concerns the ‘[g]eneral principles for all claims’, also sets out those three concepts separately, when stating that health claims ‘may be used in the labelling, presentation and advertising of foods placed on the market in the Community only if they comply with the provisions of this Regulation’. Furthermore, in so far as Regulation No 1924/2006 supplements Regulation No 1169/2011, the fact that the latter regulation defines the concepts of ‘labelling’ and ‘advertising’ separately indicates, in my view, that they must be regarded as having different scopes. (36)
56.      Moreover, I consider that Implementing Decision
2013/63 by which the Commission adopted guidelines for the implementation of specific conditions for health claims laid down in Article 10 of Regulation No 1924/2006 (37) provides useful food for thought. In particular, point 2 of the annex thereto, on ‘mandatory information accompanying authorised health claims’, distinguishes between the concepts of ‘labelling’ and ‘advertising’ by reference to their purpose. According to point 2 of the annex, labelling is intended to inform the final consumer, while advertising is used by the food business operator to promote the supply of food.
57.      It follows from the foregoing that labelling draws food information to the attention of the consumer so that the latter can make an informed choice when purchasing that food. In other words, it seeks to make essential food information available to consumers so that they can make informed decisions regarding food. (38)
58.      Advertising, on the other hand, aims to promote the sale of food and encourage consumers to buy. In that regard, it should be noted that food advertising may take many different forms depending, among other things, on the medium used, (39) the message conveyed, (40) the target audience and the objective, which is essentially to promote the food product, generate interest in an offer and encourage consumers to buy. Admittedly, in view of the variety of forms of advertising, it cannot be ruled out that there may be a certain overlap
between labelling and advertising, in particular as regards the information communicated and the form in which it is conveyed to consumers. However, it is clear from the above context that those concepts take two different approaches to communicating information, one being informative and the other promotional. Consequently, aligning those two concepts on the basis of the information used (information on food) and the form in which that information is conveyed (in the present case, in writing) would, in my view, be artificial.
59.      That conclusion also seems to me to be consistent with the objective of Regulation No 1924/2006, which is a cross-cutting objective pursued not only by that regulation, the interpretation of which is sought in the present case, but also by other legal instruments which that regulation supplements, in particular Regulation No 1169/2011. (41)
60.      As stated in Article 1(1) of Regulation No 1924/2006, read in conjunction with recital 1 thereof, that regulation aims to ensure the effective functioning of the internal market whilst providing a high level of consumer protection and facilitating choice by ensuring that products put on the market are safe and adequately labelled. Furthermore, according to the case-law, health protection is among the principal aims of the regulation. (42) That aim must be understood, in my view, as seeking to ensure that consumers are protected from, in the present case, health claims that are inaccurate, not scientifically proven or misleading, where they are liable to have an impact on a consumer’s dietary habits and overall nutrient intakes. (43) However, that same aim cannot extend the scope of the rules on labelling to also cover those on advertising, without running counter to the EU legislature’s intention to draw a clear line
between the two concepts at issue. Clearly, if the EU legislature had taken the view that those two concepts overlapped, at least as regards labelling and advertising in written form, it would have referred to them in the same way instead of distinguishing between them, as it does in Regulation No 1924/2006.
61.      Moreover, it should be recalled that Regulation No 1924/2006 has a twofold purpose, namely to ensure the effective functioning of the internal market while providing a high level of consumer protection. (44) Extending the scope of the concept of ‘labelling’ to include ‘advertising’ in its written form could, in my view, overshadow the first of those aims, or even compromise it. (45) More generally, it could create legal uncertainty in this area, or even lead to an absurd result: if written advertising were henceforth to be included within the concept of ‘labelling’, would the reverse also be true, namely
that labelling could be included within the concept of ‘advertising’? Specifically, why should the concept of ‘labelling’ take priority and encompass that of ‘advertising’, but not the reverse? (46) In my view, that constitutes another reason for concluding that such an overlap would be artificial, or would amount to a manipulation of the rules laid down by Regulation No 1924/2006.
62.      Consequently, I consider that the concept of ‘labelling’ does not cover that of ‘advertising’, in any form whatsoever, within the meaning of Article 10(2), read in conjunction with Article 2(1)(d) of Regulation No 1924/2006 and Article 2(1)(g) of Regulation No 1169/2011.
63.      For all those reasons, I propose that the answer to the first and second questions referred for a preliminary ruling should be that Article 10(2) of Regulation No 1924/2006 must be interpreted as requiring compliance with the obligations to provide information on the labelling of food. The concept of ‘labelling’ referred to in that article does not encompass ‘advertising’ in any form whatsoever. If no such labelling exists, the information requirements must be complied with, inter alia, in the advertising for food.
IV.    Conclusion
In the light of the foregoing considerations, I propose that the Court of Justice answer the questions referred for a preliminary ruling by the Bundesgerichtshof (Federal Court of Justice, Germany) as follows:
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, as amended by Commission Regulation (EU) No 1047/2012 of 8 November 2012
must be interpreted as meaning that
the obligations to provide information on the labelling of food must be complied with. The concept of ‘labelling’ referred to in that article does not include ‘advertising’ in any form whatsoever. If no such labelling exists, the information requirements must be complied with, inter alia, in the advertising for the food.
1      Original language: French.
2      Directive
of the European Parliament and of the Council of 10 June 2002 on the approximation of the laws of the Member States relating to food supplements (OJ 2002 L 183, p. 51).
3      Directive
of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertising (OJ 2006 L 376, p. 21).
4      Regulation 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, and corrigendum OJ 2007 L 12, p. 3), as amended by Commission Regulation (EU) No 1047/2012 of 8 November 2012 (OJ 2012 L 310, p. 36).
5      Regulation of the European Parliament and of the Council of 25 October 2011 on the provision of food information to consumers, amending Regulations (EC) No 1924/2006 and (EC) No 1925/2006 of the European Parliament and of the Council, and repealing Commission Directive
87/250/EEC, Council Directive
90/496/EEC, Commission Directive
1999/10/EC, Directive
2000/13/EC of the European Parliament and of the Council, Commission Directives
2002/67/EC and 2008/5/EC and Commission Regulation (EC) No 608/2004 (OJ 2011 L 304, p. 18), as amended by Regulation (EU) 2015/2283 of the European Parliament and of the Council of 25 November 2015 (OJ 2015 L 327, p. 1).
6      Commission Implementing Decision 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 (OJ 2013 L 22, p. 25).
7      Directive
of the European Parliament and of the Council of 20 March 2000 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs (OJ 2000 L 109, p. 29).
8      Recital 3 of Regulation No 1924/2006.
9      Thus, any reference in Regulation No 1924/2006 to Directive
2000/13 must be construed as a reference to Regulation No 1169/2011, pursuant to Article 53 of the latter regulation.
10      Article 1(2) of Regulation No 1169/2011.
11      In that regard, recital 17 of Directive
2002/46 states that that directive is confined to setting out the necessary additional provisions, since general provisions and definitions are laid down in Directive
2000/13 and, now, in Regulation No 1169/2011.
12      However, the provision of that optional information makes it mandatory to include other information, as provided for in Article 10(2) of Regulation No 1924/2006.
13      See, to that effect, judgment of 6 September 2012, Deutsches Weintor, C‑544/10, (‘the judgment in Deutsches Weintor’), EU:C:2012:526, paragraphs 35 and 36.
14      Proposal for a Regulation of the European Parliament and of the Council on nutrition and health claims made on foods (COM(2003)424 final), paragraph 9.
15      See, to that effect, Nihoul, P., Van Nieuwenhuyze, E., ‘L’étiquetage des denrées alimentaires: une pondération réussie entre intérêts contradictoires?’, Journal de droit européen, 20th year (2012), No 192, p. 237 to 243. More recently, see also Special Report 23/2024 of the Court of Auditors, adopted on 28 November 2024, entitled ‘Food labelling in the EU – Consumers can get lost in the maze of labels’ (OJ C, 2024/7194), in particular paragraphs 7 and 47, referring to the constantly evolving labelling practices of food businesses looking for new ways to attract consumers.
16      The judgment in Deutsches Weintor, paragraph 37.
17      Recital 2 of Regulation No 1924/2006.
18      A detailed description of those general and specific conditions, other than those referred to in Article 10(2) of Regulation No 1924/2006, does not seem to me to be necessary in the context of the present case.
19      That understanding seems to me to be also capable of being confirmed by other language versions, for example in English (‘[h]ealth claims shall only be permitted if the following information is included in the labelling, or if no such labelling exists, in the presentation and advertising ... ’) or Lithuanian (‘teiginiai apie sveikatingumą leidžiami tik tuo atveju, jei toliau nurodyta informacija yra pateikta etiketėje, o jei etiketės nėra – pateikime ir reklamoje …’).
20      Emphasis added.
21      See judgment of 12 September 2019, A and Others, C‑347/17, EU:C:2019:720, paragraph 38
and the case-law cited.
22      Point 2.1 (a) and (b) of the annex to Implementing Decision 2013/63.
23      Article 1(1) of Regulation No 1924/2006 and Article 1(1) of Regulation No 1169/2011.
24      Article 1(2) of Regulation No 1924/2006.
25      In that regard, it should be noted that, admittedly, the wording in the French version is somewhat ambiguous, in that it uses the expression ‘le consommateur ayant difficilement accès à l’“étiquetage”’ (consumers with difficulty accessing the ‘labelling’). However, the other language versions of point 2.1(b) of the annex to
Implementing Decision 2013/63 confirm that it is where access to labelling is limited that the mandatory information provided for in Article 10(2) of Regulation No 1924/2006 must be communicated on other materials (see, for example, in English: ‘mandatory information shall be available to the consumer before purchase and in the cases of distance selling where access to the ‘labelling’ is restricted, mandatory information must be included in the presentation and advertising of the food, in the material supporting the distance selling whether this is a website, a catalogue, a leaflet, a letter, etc.’, Spanish: ‘la información obligatoria estará a disposición del consumidor antes de que se realice la compra y, en el caso de las ventas a distancia en las que el acceso al «etiquetado» está limitado, la información obligatoria deberá incluirse, en la presentación y la publicidad de los alimentos, en el soporte de la venta a distancia, ya se trate de un sitio web, de un catálogo, de un folleto, de una carta, etc.’ and Lithuanian: ‘privaloma informacija pateikiama vartotojui prieš perkant, o tais nuotolinės prekybos atvejais, kai prieiga prie ”ženklinimo”“ yra ribota, privaloma informacija turi būti nurodyta ”pateikime” bei ”reklamoje” ir informacinėje medžiagoje, kuria naudojamasi prekiaujant nuotoliniu būdu, kaip antai, tinklalapyje, kataloge, informaciniame lapelyje, rašte ir t. t.’).
26      Recital 10 of Regulation No 1169/2011.
27      COM(2006)368 final .
28      Article 9(1) of Regulation No 1169/2011.
29      I am thinking, in particular, of advertising posters at the entrance to supermarkets or in catalogues distributed in those supermarkets, for example.
30      That is without prejudice to the option for food business operators to include such information in advertising, even though they are not obliged to do so.
31      See, by analogy, judgment of 7 July 2016, Ambisig, C‑46/15, EU:C:2016:530, paragraph 33.
32      Article 2(2)(j) of Regulation No 1169/2011.
33      That conclusion is, in my view, necessary for reasons of legal certainty and consistency in food labelling.
34      Article 2(a) of Directive
2006/114.
35      Judgment of 11 July 2013, Belgian Electronic Sorting Technology, C‑657/11, EU:C:2013:516, paragraph 35.
36      In addition, it should be noted that the distinction between the concepts of ‘labelling’ and ‘advertising’ appears to be capable of being inferred indirectly from Directive
2000/13, which was supplemented by Regulation No 1924/2006 before that directive was repealed by Regulation No 1169/2011. Directive
2000/13 drew a distinction between the rules applicable to each of those concepts (see, to that effect, judgment of 15 July 2004, Douwe Egberts, C‑239/02, EU:C:2004:445, paragraph 34).
37      See recital 37 and Article 10(4) of Regulation No 1924/2006.
38      That is without prejudice to the fact that the labelling may also contain information which may be considered non-essential. I am thinking here of optional information such as health claims which, as explained above, while certainly providing information to consumers, are primarily intended to attract their attention and ultimately to encourage them to buy. It is for the latter reason that their communication on food labelling must not only be supported by scientific data (see Article 5(1)(a) of Regulation No 1924/2006), but also, in view of their promotional role, must be accompanied by the supplementary information referred to in Article 10(2) of Regulation No 1924/2006, to protect consumers from misleading and unsubstantiated information.
39      For example, written advertising in newspaper advertisements or on billboards, audiovisual advertising on television or radio, or digital advertising, as is often the case on social media.
40      For example, depending on the tone and intention of the message, which may be informative, relating to the characteristics of the product, persuasive, in order to highlight the benefits of the product with a view to convincing consumers to buy, or even emotional, in order to arouse emotions likely to lead to a purchase.
41      According to Article 1(1) thereof, the objective of Regulation No 1169/2011 is to ensure a high level of consumer protection in relation to food information, taking into account the differences in the perception of consumers and their information needs whilst ensuring the smooth functioning of the internal market.
42      Judgment of 30 January 2020, Dr.Willmar Schwabe, C‑524/18, EU:C:2020:60, paragraphs 35 and 55 and the case-law cited.
43      Recitals 14 and 19
of Regulation No 1924/2006.
44      Article 1(1) of Regulation No 1924/2006.
45      In that regard, advertising undoubtedly constitutes a means of opening up opportunities in the internal market for goods and services, opportunities which both consumers and professionals must be able to take full advantage of. Requiring a food business operator to abandon an advertising technique which it considers to be particularly effective, in the present case the mention of a single health claim, on account of an overlap between the concepts of ‘labelling’ and ‘advertising’, would put obstacles in the way of those opportunities and, consequently, would undermine the effective functioning of the internal market.
46      Moreover, would food business operators henceforth have a choice as to which legal regime applies? What effects might such an overlap have on other legal instruments that use the same definitions? I refer here to just a few examples of the practical difficulties that would result if the concepts of ‘labelling’ and ‘advertising’ in written form were to be regarded as overlapping.